1

State v. Irwin, 2014 WL 6734821 (Del. Super. Nov. 17, 2014).

SUPERIOR COURT

OF THE

STATE OF DELAWARE

WILLIAM C. CARPENTER, JR. NEW CASTLE COUNTY COURTHOUSE

 JUDGE 500 NORTH KING STREET, SUITE 10400

WILMINGTON, DE 19801-3733

TELEPHONE (302) 255-0670

February 1, 2016

Daniel Logan, Esquire

Department of Justice

820 N. French Street

Wilmington, DE 19801

Ross Flockerzie, Esquire

Public Defender’s Office

820 N. French Street

Wilmington, DE 19801

RE: State v. Dewayne McNair

ID No. 1212003086A

On Defendant’s Motion for New Trial - DENIED

Dear Counsel:

The Court has reviewed the recent submissions from counsel in Mr.

McNair’s case in relation to his request for a new trial. In spite of the unfortunate

and inappropriate assertions of defense counsel that the trial was a “sham” and the

reasoning of this Court in State v. Irwin is “flawed,” the Court does not find the

circumstances surrounding Mr. McNair’s trial and the conduct of the Medical

Examiner’s lab justify a new trial in this matter.1 As such, Defendant’s Motion for

New Trial will be denied.
2

Id. at *36.

To begin with, it is important to recognize that the form motion filed in this

matter was like those filed in similarly situated drug cases where the trial occurred

before the Office of the Chief Medical Examiner (“OCME”) misconduct was

discovered but the defendant had not been sentenced when the investigation was

disclosed. These motions assert that the drug evidence lacks the requisite

scientific reliability for admission under Daubert and Rule 702 of the Delaware

Rules of Evidence. These arguments were considered in Irwin and were rejected

subject to the relevancy limitations established in that case. However, the Irwin

decision does make some significant findings that the Court believes are relevant

in the context of this Motion for New Trial.

First, in this case, there is a minor deviation or discrepancy in weight

between what was submitted to the lab by the police and what was discovered

during drug testing. The preliminary weight of 7 grams, which field tested

positive for cocaine, is set forth in the affidavit of probable cause. The OCME

chemist weighed the material as 6.2 grams and confirmed it was cocaine. The

Court believes this is not a significant deviation and alone would not justify a new

trial. Because of this finding, the Court finds the bright line rule established in

Irwin could not have been met by Defendant if the case had gone to trial after the

Irwin decision was rendered. In discussing certain cases in which inquiry into the

OCME investigation would be relevant, the Court stated:

Therefore, the Court has decided that if a case was sent to the OCME

drug lab for testing, the defense will be free to question the State’s

witnesses or to present evidence regarding the OCME investigation

only if there is either evidence of tampering of the packaging

submitted by the police or a discrepancy in weight, volume or

contents from that described by the seizing officer. If evidence of

tampering is not present and there is no discrepancy, the OCME

investigation is not relevant under Delaware Rule of Evidence 402 or

at least would be misleading and unfair under Rule 403. In such

cases, therefore, evidence of the investigation should not be

introduced.

2

There is no evidence here to suggest that drug evidence envelopes were opened or

tampered with in any way and the arresting officer, the Defendant, and the chemist

all agree the substance was cocaine. While the Court agrees that many of the

individuals who may have come into contact with Mr. McNair’s evidence while at
the OCME have been the subject of much controversy, that by itself does not

mandate a new trial in every case where such contact was possible. From all

accounts, the evidence seized by the police was the same evidence tested by the

lab. As the Court has stated many times, the cases developed to date have not

reflected one where drugs were planted to incriminate a particular defendant. If

anything, the missing drugs from this lab would reflect just the opposite.

What is also unique about this case is, that, unlike in most drug cases,

defense counsel advised the State he was unwilling to agree to the chain of

custody being established pursuant to 10 Del. C. § 4330. As such, there was

significant evidence and argument heard before the trial judge relating to chain of

custody. Any discrepancy in that chain was made clear to the jury, both through

cross-examination and closing arguments. The jury was aware that there was a

two day gap between the day the drugs were delivered to the lab by the police and

when they were first recorded in the OCME chain of custody system. Further, the

fact that the chemist who put the prepared vials into the testing machine was also

not listed was clearly presented to the jury. When considered in total, this is not a

case where significant breaks in the chains were unknown to the jury. It appears

these issues were fully explored and would have been available to the jury as they

assessed the credibility of the relevant witnesses and considered their verdict.

Next, Defendant argues that, since trial, he learned of the administrative

discipline of the assigned chemist, Patricia Phillips, and that such conduct

warrants a new trial. In Defendant’s July 27, 2015 submission, he listed three

specific instances where Ms. Phillips had received corrective action reports. 

While all three events are troublesome to the Court and reflect a degree of

sloppiness, which it finds unacceptable, there is nothing to suggest that the same

conduct occurred when Mr. McNair’s drugs were being tested. Obviously if the

State was aware of this conduct by Ms. Phillips it would have been required to

disclose it. However, the simple answer is that such administrative internal

discipline issues are not regularly a matter disclosed in criminal proceedings, and

since the problems at the OCME were not discovered until after this trial, there

was no heightened sensitivity to such issues that would invoke a Brady violation

or misconduct by the State that would warrant a different decision.
While the Court has decided not to grant a new trial on the legal issues

presented, Defendant has also asked that, at a minimum, the drugs seized be

retested. The Court believes, that to the extent the drugs are still available and

have not been destroyed, such request is a reasonable one. In fairness to

Defendant, the Court will require that the drugs be tested by an independent lab

unassociated with the OCME. This would at least end any uncertainty that the

drugs seized and tested were actually cocaine as admitted by the Defendant at the

time of his arrest. The Court takes this unusual step because of the significant

sentence the Defendant is facing and because it is fair to stay that the individuals

who may have touched Mr. McNair’s drugs are not unfamiliar to the Court from

the numerous motions and hearings held as a result of the OCME investigation. If

the drugs, after retesting, are cocaine, the denial of the Motion for New Trial will

be final, and the case will be sent to Judge Medinilla for sentencing.

IT IS SO ORDERED.

 /s/ William C. Carpenter, Jr. 

Judge William C. Carpenter, Jr.

WCCjr:twp

cc: The Honorable Vivian Medinilla

Prothonotary