IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEVIN COLEMAN, §

§ No. 83, 2022

Defendant Below, §

Appellant, § Court Below: Superior Court

§ of the State of Delaware 

v. §

§ Cr. ID No. 2010012644A/B (K)

STATE OF DELAWARE, § 

 §

Appellee. §

Submitted: October 19, 2022

Decided: January 3, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Patrick J. Collins, Esquire, COLLINS & PRICE, Wilmington, Delaware, for 

Appellant Devin Coleman.

John R. Williams, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Dover, 

Delaware, for Appellee State of Delaware. 
2

TRAYNOR, Justice:

A probation officer seized two guns—one a loaded 9mm Ruger, the other a 

.40 caliber Smith & Wesson—from a backpack recently carried by the defendant, a 

convicted felon and thus a person prohibited from possessing a firearm. The officer 

also seized two .40 caliber magazines—one from within the Smith & Wesson, the 

other loose in the backpack. It was later determined that one of the magazines bore 

the defendant’s fingerprint but no one knows whether the incriminating prints were 

on the magazine that was in the Smith & Wesson firearm or on the loose magazine. 

The defendant asked the trial court to instruct the jury that the officer’s failure 

to note, at the time of the seizure, which of the two magazines was in the weapon 

constitutes “missing evidence.” Under the defendant’s preferred instruction, which 

we often refer to as a Lolly/Deberry1instruction, the jury would have been told to 

assume that, had the officer properly noted the respective positions of the magazines 

when he initially seized them, those positions—either inside or outside the Smith & 

Wesson—would have tended to prove that the defendant was never in possession of 

the Smith & Wesson firearm. The trial court would not give the requested instruction 

and this refusal, the defendant argues, constitutes a due process violation warranting 

the reversal of his conviction for possession of a firearm by a person prohibited. As 

explained below, we disagree and affirm the defendant’s conviction.

1 Lolly v. State, 611 A.2d 956 (Del. 1992); Deberry v. State, 457 A.2d 744 (Del. 1983).
3

I

In June 2020, Devin Coleman, a convicted felon prohibited from possessing 

a firearm, was released on probation after completing an 8-year prison sentence. 

Soon after his release, the police began monitoring Coleman’s calls through courtapproved telephone wiretaps, as part of a joint contraband investigation by the City 

of Dover Police and the Delaware State Police. At the time, Coleman, a Level III 

probationer, lived in Room 117 of the Capitol Inn in Dover.2 

On July 21 and 22, the police listened to Coleman over the wiretap as he 

discussed guns and drugs. During the calls on July 21, Coleman expressed a desire 

to purchase firearms,3and, the following day,4 Coleman was recorded telling 

associate Antwan Campbell, “I spent $1,700 on guns yesterday.”5

After Coleman made these incriminating statements, he was observed, on the 

morning of July 22, 2020, carrying a blue backpack into his motel room at the 

Capitol Inn. A few minutes later, Coleman went outside to take a call from his friend 

2 App. to Opening Br. at A370–71.

3 During the July 21, 2020 calls, Coleman: (i) spoke with an unknown person who told him about 

handguns for sale, (ii) told his eventual codefendant Marquis Mack that he was going to go look 

at guns for sale, (iii) told an unknown male that he is going to the place where guns are for sale, 

and (iv) discussed with Mack the pricing of the guns and that the seller was coming down from 

Wilmington. Id. at A730–37, A739–40, A742–46, A1210.

4 During the July 22, 2020 calls, Coleman spoke: (i) with an unknown person with whom he 

attempted to arrange a contraband drug purchase, (ii) with Kendra Lewis and joked that the 

laundromat does not accept “dope” as payment, and (iii) with associate Antwan Campbell who 

wanted to purchase a quarter ounce of an unidentified contraband drug and told Campbell that he 

spent $1,700 yesterday to purchase guns. Id. at A835–36, A845, A848.

5

Id. at A1215–17.
4

Kendra Lewis. Lewis, who then arrived by car, was greeted by Coleman and the 

two walked back into the motel room together. Shortly after that, probation officer 

Ricky Porter and two other officers knocked on the door with the intention of 

conducting an administrative search. Hearing the knock, Coleman looked out the 

window, and Porter asked him to open the door. Lewis, James Ayers, and Shaketah 

Giles were also in the room. Coleman did not open the door immediately.

6

Instead, 

he turned to Ayers, who was moving things around, and asked him, “Yo, you good?” 

and Coleman then opened the door.7

Once inside, Porter and the officers found drugs containing Fentanyl. Porter 

also located the blue backpack that Coleman was seen carrying into the room within 

the preceding hour. Inside the blue backpack, Porter found (i) one Ruger handgun 

with a loaded 9mm magazine inserted, (ii) one Smith & Wesson with an unloaded 

.40 caliber magazine inserted, and (iii) one spare .40 caliber magazine that was 

unloaded and loose in the backpack. Porter photographed the items “before handling 

the weapons.”8

6 The parties dispute how much time elapsed before Coleman opened the door. On direct 

examination, Porter testified that Coleman opened the door after “an abnormally long time . . . 45 

seconds to a minute.” On cross examination, confronted with his investigative report, Porter 

testified that he wrote the report on the morning of the search and further testified “I’ve 

documented it took Coleman several seconds to open the door[.]” Id. at A881, A925–27, A930.

7

Id. at A1436.

8

Id. at A897, A943.
5

During the evidence collection process, Porter removed the magazines from 

the Ruger and the Smith & Wesson and confirmed that neither weapon’s chamber 

contained a round. Only the 9mm magazine found in the Ruger contained any 

ammunition. When he seized the .40 caliber magazines, both of which were 

unloaded and appeared to be “identical,”

9 Porter did not designate which magazine 

was found in the Smith & Wesson.

Porter delivered the evidence to the Dover Police Department. The items were 

then tagged and separately photographed. Later, Detective Nolan Matthews, a 

Dover Police Department crime-scene investigator, lifted three fingerprints from one 

of the .40 caliber magazines, an examination of which showed that the prints

belonged to Coleman, Mack, and Ayers. These were the only fingerprints found that 

had any identification value.10 Because no effort had been made when seizing the 

evidence to differentiate between the two .40 caliber magazines, there was no way 

to tell which of the .40 caliber magazines the fingerprints were lifted from—the 

magazine found inside the Smith & Wesson or the one that was loose in the 

backpack.

9

Id. at A941–42.

10 The analysis revealed no visible fingerprints on either the Smith & Wesson or the Ruger. 

Fingerprints were found on the 9mm magazine and on one of the bullets in the 9mm magazine, 

but none produced any identification value. Id. at A1010–11, A1024.
6

Based on the wiretap investigation, a Kent County grand jury indicted 29 

defendants, including Coleman, on racketeering, drug, and weapons offenses. 

Separately, Coleman faced additional charges stemming from the search of his motel 

room, including two charges of possession of a firearm by a person prohibited and 

one charge of possession of ammunition by a person prohibited. To avoid the 

prejudice that might attend the jury’s learning of Coleman’s prior felony conviction 

and his status as a “person prohibited,” the court severed the “person prohibited” 

charges and held two trials. The same jury heard both cases and much of the 

separately presented evidence overlapped. To streamline the trial, the first trial was 

limited to one drug dealing (fentanyl) charge; the State entered nolle prosequis as to 

eight other charges pending against Coleman. The second trial was limited to two 

charges of possession of a firearm by a person prohibited and one count of

possession of ammunition by a person prohibited. 

During the first trial, because Porter could not identify which of the two .40 

caliber magazines was in the Smith & Wesson firearm when it was seized,

Coleman’s counsel requested a missing evidence instruction, stating:

[A]t the time the evidence was out of the control of Mr. Coleman and 

exclusively in the control of the state . . . there was at a minimum 

negligence in handling it. I believe that if there is evidence that could 

potentially have exculpatory value for a defendant and it has been 

mishandled in a negligent fashion . . . that supports grounds for 

allowing for the Lolly-Deberry type of instruction that there was 

evidence, there could have been exculpatory value but because of the 

way it was handled it was no longer there. The jury should be 
7

instructed that if the evidence were stamped and it was handled 

properly that evidence would have been that the fingerprints were 

found on the magazine that was not in the gun. So at this point in 

time I’m making an application for a Lolly type [or] Deberry

instruction with respect to that issue to be given [in] the jury 

instructions for the gun issue.11

In response, the court agreed to hear further argument after the evidence was 

received in the second trial. 

Thereafter, the jury found Coleman guilty of the lesser-included offense of 

misdemeanor possession of fentanyl. Then, in the second trial, after the prosecution 

rested, the court denied Coleman’s application for a missing evidence instruction 

finding no breach of the State’s duty to collect or preserve evidence. 

Coleman then testified in his own defense that he was lying when he told 

Campbell that he had spent “$1,700 on guns.”12 According to Coleman, when he 

entered the Capitol Inn on the morning of July 22, the blue backpack contained a 

pair of sneakers. Coleman opined that Ayers had deposited the guns and spare 

magazine into the blue backpack while Coleman was outside talking on the phone 

with Lewis in the minutes before the probation officer arrived to conduct the 

search.13 He also claimed that he only briefly touched the spare .40 caliber magazine 

11 Id. at A1279–80.

12 Id. at A1439.

13 On cross examination, Coleman agreed that his “theory [was] that the guns [went] in the 

backpack after [he] [told] [Ayers] to get that stuff out of the room.” Coleman confirmed that he 

never saw anybody put anything in the backpack because he was outside at the time in question.

Id. at A1463–64.
8

on the morning of July 22 when he slid the “clip” across the sink to Ayers and told 

him to “pick this stuff up.”

14

At the end of the second trial, the jury found Coleman guilty of only one count 

of possession of a firearm by a person prohibited. Because neither of the counts 

charging Coleman with possession of a firearm by a person prohibited describes the 

firearm—that is, neither count identifies the type of firearm Coleman was alleged to 

have possessed—we do not know whether Coleman was convicted of possessing the 

Ruger or the Smith & Wesson firearm.

Before Coleman’s trials, the State had filed a motion asking the court to 

sentence Coleman as a habitual offender under 11 Del. C. §4214(d). The Superior 

Court granted the motion at Coleman’s sentencing hearing. The court then 

sentenced Coleman to 29 years of unsuspended Level V time for the possession-ofa-firearm-by-a-person-prohibited conviction and a fine for the drug-possession 

misdemeanor.

II

In this appeal, Coleman raises a single issue: he contends that the Superior 

Court erred by denying his request for a “missing evidence” instruction thereby 

depriving him of his right to due process. Although Coleman did not tender a draft 

14 Id. at A1432–33.
9

instruction to the trial court, his reference to Deberry and Lolly and his briefing in 

this Court indicate that the jury instruction he favored would have read as follows:

In this case the court has determined that the State failed to 

collect/preserve certain evidence which was material to the defense. 

The failure of the State to collect/preserve such evidence entitles the 

defendant to an inference that if such evidence were available at trial it 

would be exculpatory. This means that, for purposes of deciding this 

case, you are to assume that the missing evidence, had it been 

collected/preserved, would not have incriminated the defendant and 

would have tended to prove the defendant not guilty. The inference 

does not necessarily establish the defendant’s innocence, however.

If there is other evidence presented which establishes the fact or 

resolves the issue to which the missing evidence was material, you must 

weigh that evidence along with the inference. Nevertheless, despite the 

inference concerning missing evidence, if you conclude after 

examining all the evidence that the State has proven beyond a 

reasonable doubt all elements of the offense(s) charged, you would be 

justified in returning a verdict of guilty.15

Based upon our de novo review of the court’s ruling,16 we conclude that, 

because the evidence whose absence forms the basis of Coleman’s argument was 

not physical evidence subject to production under Superior Court Criminal Rule 16 

or Brady v. Maryland,

17 the Superior Court’s ruling was not erroneous. In short, the 

Lolly/Deberry framework is inapplicable to Coleman’s “missing evidence” claim.

 

15 Opening Br. at 28 (quoting Lolly, 611 A.2d at 962 n.6).

16 See Hendricks v. State, 871 A.2d 1118, 1123 (Del. 2005) (applying de novo review to the denial 

of a request to give a “missing evidence” instruction to the jury).

17 Brady v. Maryland, 373 U.S. 83 (1963).
10

A

In Deberry v. State, a case involving a rape at knife-point, although there was 

testimony that the police had taken Deberry’s clothing as well as the victim’s bloodstained clothes, the State was unable to produce Deberry’s clothing for testing.18

 

That Deberry’s clothing had gone missing was problematic because, had Deberry 

committed the crimes with which he was charged, “the likelihood of [the victim’s] 

blood being found on [Deberry’s] clothing was very strong, given the injuries 

sustained by the victim.”19 Conversely, the absence of Deberry’s blood and the 

victim’s hair on his clothing “would have been material to the issue of guilt since 

the evidence could have created a reasonable doubt not otherwise present.”20 Thus, 

Deberry’s clothing “was of obvious relevance.”21

In response to Deberry’s contention that reversible error occurred when the 

State failed to produce or account for the potentially exculpatory evidence, this Court 

recognized that the State’s duty to disclose evidence under Superior Court Criminal 

Rule 16(b) also includes a duty to preserve that evidence.22 We observed that the 

government’s “obligation to preserve evidence is rooted in the due process 

18 This Court believed that there was “little doubt that the State actually had possession of 

Deberry’s clothing at one time and then lost or destroyed it[.]” Deberry, 457 A.2d at 749.

19 Id. at 748. 

20 Id. at 749.

21 Id. at 748.

22 Id. at 751–52. See id. (“[U]nder Superior Court Rule 16(b), a defendant need only show that an 

item ‘may be material to the preparation of his defense’ to be discoverable.”).
11

provisions of the fourteenth amendment to the United States Constitution and the 

Delaware Constitution, article I, section 7.”23 We held further that if the government 

fails to preserve important physical evidence, a criminal defendant may be entitled 

to an inference that the missing evidence would have been exculpatory.24 To aid in 

determining whether the inference is available, Deberry adopted a framework that

examines both the conduct of the State and the nature of the missing evidence:25

1) would the requested material, if extant in the possession of the 

State at the time of the defense request, have been subject to 

disclosure under Criminal Rule 16 or Brady [v. Maryland, 373 

U.S. 83 (1963)]?

2) if so, did the government have a duty to preserve the material?

3) if there was a duty to preserve, was the duty breached, and what 

consequences should flow from a breach?

We explained that, in the final step of the Deberry analysis, to determine what 

consequences should flow from a breach of duty, the trial courts should consider 

“(1) the degree of negligence or bad faith involved, (2) the importance of the lost 

evidence, and (3) the sufficiency of the other evidence adduced at the trial to sustain 

23 Id. at 751–52.

24 Id. at 753–54 (When vital “physical evidence . . . is lost or otherwise becomes unavailable 

through some apparent default of the police, the State bears a heavy burden of overcoming the 

defendant’s claim of prejudice. . . . Because the State must bear the responsibility for the loss, and 

the defendant therefore enjoys the inference that evidence of the clothing would be exculpatory in 

nature, in a retrial the State must stipulate that if Deberry’s clothing was introduced it would not 

contain any evidence incriminating him.”).

25 Id. at 750.
12

the conviction.”26 “This analysis, of course, assumes that the missing evidence 

might be exculpatory, i.e., that [it is] relevant to a disputed issue.”27 We have 

maintained, as we held in Deberry, that “[a] claim that potentially exculpatory 

evidence was lost or destroyed by the State can only be decided after each element 

of the above analysis has been considered.”28 

Six years after Deberry, we decided Hammond v. State,

29 a vehicular homicide 

case in which the defendant, whose defense hinged in part on his claim that he was 

not the driver, argued that the State’s failure to preserve the crash vehicle or to gather 

evidence from inside the crash vehicle violated his guaranteed right of access to 

evidence.30 Preservation of the crash vehicle was important to Hammond because 

evidence of fingerprints, blood, or hair on torn clothing in the interior might have 

supported his defense that he was not the driver. The crash vehicle might also have 

been tested for mechanical failure, providing an innocent cause of the accident. 

Applying Deberry, we concluded that the State breached its duty to preserve 

important physical evidence by failing to preserve the crash vehicle itself and that 

26 Id. at 752 (citing United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979) (Kennedy, 

J., concurring)). See Bailey v. State, 521 A.2d 1069, 1091 (Del. 1987) (citing Deberry, 457 A.2d 

at 752).

27 McNair v. State, 990 A.2d 398, 403 n.16 (Del. 2010) (emphasis in original).

28 Deberry, 457 A.2d at 750.

29 Hammond v. State, 569 A.2d. 81 (Del. 1999).

30 Id. at 85.
13

the defendant was entitled to the inference, that if available, the crash vehicle would 

have contained exculpatory evidence.31

In 1992, in Lolly v. State, we extended our holding in Deberry to “claims

involving the alleged failure to gather evidence ab initio.”32 In addition, we held 

that the State’s failure to gather or preserve evidence material to the defense entitles 

the defendant to an inference that, if such evidence were available at trial, it would 

be exculpatory.33 In Lolly, a burglar was apparently injured by a boobytrapped 

window; after discovering a trail of blood inside and outside of the apartment, the 

police arrested Lolly based on an eyewitness identification and the fact that he was 

holding a rag to a bleeding wound on his hand.34 Despite the obvious relevance of 

the blood as evidence connecting the defendant to the crime, the State failed to 

collect any samples of the blood, even after the defendant told the police that he had 

cut his hand earlier in the day.35 In Lolly, we endorsed our rationale in Deberry and 

Hammond, adding that the proper emphasis continues to be upon the significance of 

31 Id. at 89–90. See also id. (denial of jury instruction was harmless error).

32 Lolly, 611 A.2d at 960 (citing Hughes v. State, 490 A.2d 1034, 1049 (Del. 1985)).

33 Id. at 961 n.6. See Hendricks, 871 A.2d at 1124 (emphasis in original) (“there may be 

circumstances when the State failed to [gather or] preserve evidence that was material to the 

defense and the defendant would be entitled to a missing evidence instruction but not a dismissal 

of the charges.”) (citing Lolly, 611 A.2d at 961–62).

34 Lolly, 611 A.2d at 958.

35 Id.
14

the “missing evidence” in the trial setting with appropriate guidance by the trial 

judge through jury instruction.36 

B

As the preceding discussion illustrates, the courts’ employment of a 

Lolly/Deberry “missing evidence” instruction has been limited to those instances 

where potentially exculpatory physical evidence was either not collected by law 

enforcement or collected but not preserved during the course of the prosecution. We 

have faulted the State for failing to gather or preserve physical evidence material to 

a defendant’s guilt or innocence, like clothing worn during an alleged rape,37 a crash 

vehicle in a vehicular homicide case,38 blood observed near a boobytrapped 

window,39 or clothing concealing firearms that were the basis of criminal charges.40 

But in this case the physical evidence—the weapons and magazines—was collected, 

preserved, and available at trial. There simply is no “missing evidence” in the sense 

that the Lolly/Deberry line of cases addresses. This conclusion is consistent with the 

line of cases discussed above, which teach that “[t]he Deberry standard only requires 

that the State adequately gather and preserve physical evidence.”41

36 Id. at 960.

37 Deberry, 457 A.2d at 753.

38 Hammond, 569 A.2d at 85.

39 Lolly, 611 A.2d at 958

40 Johnson v. State, 27 A.3d 541, 547 (Del. 2011).

41 Ruffin, 131 A.3d at 308 (emphasis added) (citing Deberry, 457 A.2d at 751–52).
15

As previously noted, the threshold inquiry under Deberry is whether, had it 

been collected, the evidence would have been subject to disclosure under Rule 16. 

In conducting this inquiry, the Deberry court confined its review of Rule 16 to 

subparagraph (b). Under that subparagraph, as it existed when Deberry was decided, 

the State was required, upon the defendant’s request, to produce for inspection, 

copying, or photographing “designated books, papers, documents, tangible objects, 

buildings or places, copies or portions thereof which are within the possession, 

custody or control of the State, upon a showing that the items sought may be material 

to the preparation of his defense and that the request is reasonable.”42 Thus, all the 

material that is subject to disclosure under former Rule 16(b) was tangible physical 

evidence. That the current, identically worded version of Rule 16(b), found in 

Superior Court Criminal Rule 16(a)(1)(C), is entitled “Documents and tangible 

objects” further reinforces that the Deberry framework addresses missing physical 

evidence and not the observations of evidence-collecting law-enforcement officers. 

Coleman’s real complaint is not with the failure to collect or preserve physical 

evidence but is, rather, with the probation officer’s evidence-collection methods, that 

is, his failure to record the position of the two .40 caliber magazines vis-à-vis the .40 

caliber weapon. Coleman cites no authority, nor are we aware of any, that would 

42 See Deberry, 457 A.2d at 750 n.3.
16

support this expansion of the doctrine.43 For this and the other reasons discussed 

below, we are not inclined to extend our Lolly/Deberry “missing evidence” doctrine 

to the circumstances presented here. 

C

Although Coleman has not explicitly relied on the Lolly/Deberry framework’s 

inclusion of a Brady component—that is, whether the “missing evidence,” if extant, 

would have been subject to a disclosure under Brady—he does point to the 

potentially exculpatory nature of the evidence. Indeed, the assumption underlying 

the Lolly/Deberry rationale is that the missing evidence might by exculpatory.44 We

therefore take this opportunity to briefly address Coleman’s implicit Brady

argument.

Brady is principally concerned with the prosecution’s withholding of evidence 

that is favorable to the accused. A Brady violation has three components: “(1) 

evidence exists that is favorable to the accused, because it is either exculpatory or 

43 Oral Argument, at 9:14–9:48, Coleman v. State, No. 83, 2022 (Del. argued Oct. 19, 2022), 

https://livestream.com/accounts/5969852/events/10612709/videos/233387482/player. The 

following exchange took place:

The Court: Can you point to any cases where this Court has found a Deberry or 

Lolly violation where the actual physical evidence was collected, preserved, and 

produced, but that evidence was collected in a way where its evidentiary value 

may have been affected?

Coleman’s Counsel: I have not found one, your Honor. I think this is a unique 

set of facts.

44 McNair, 990 A.2d at 403 n.16. 
17

impeaching; (2) that evidence is suppressed by the state; and (3) its suppression 

prejudices the defendant.”45 Brady claims typically involve the withholding of 

evidence that is within the government’s possession, custody, or control.46 Here, 

however, Coleman’s claim is that the evidence was never possessed by the State 

because the investigating officer should have, but did not, collect the evidence.

In Powell v. State, this Court addressed a similar claim, although we note that, 

like the cases discussed above that applied the Lolly/Deberry framework, Powell 

involved the failure to preserve physical evidence. The Court recognized a “broadly 

applicable principle” relevant to such claims:

[F]or the police to have a duty to collect and preserve specific 

evidence, the police must have had a reason, at the time, to believe 

the evidence might be exculpatory. In that regard, . . . “the duty to 

preserve exculpatory evidence does not include a duty to seek out

exculpatory evidence.”47

Under Coleman’s argument, if the magazine bearing his fingerprint was inside 

the weapon, the likelihood that he possessed the weapon was greater than if it had 

been loose in the backpack. Coleman couched this contention in the following 

terms:

If the magazine with his fingerprint was in the weapon, that would have 

been powerful evidence of his guilt[]. The converse is also true. If the 

45 Starling v. State, 882 A.2d 747, 756 (Del. 2003) (citing Strickler v. Greene, 527 U.S. 263, 281–

82 (1999)).

46 See, e.g., Schaffer v. State, 184 A.3d 841, 2018 WL 1747793, at *3 (Del. Apr. 10, 2018)

(TABLE). 

47 Powell v. State, 49 A.3d 1090, 1101 (Del. 2012) (alteration in original) (quoting Mason v. State, 

963 A.2d 139, 2009 WL 189839, at *1 (Del. Jan. 5, 2009) (TABLE)).
18

magazine with his fingerprint was not the one in the weapon, it is not 

proof that he possessed the weapon.48

It follows, according to Coleman, that evidence that the magazine with the print was 

loose in the backpack—had that been the case—would be exculpatory and the 

absence of that evidence, which was the consequence of the probation officer’s 

negligence, should result in a rebuttable presumption that he possessed neither of the 

firearms found in his backpack. Implicit in Coleman’s argument is the assumption

that the jury would not have convicted him, or at least would have been less likely 

to convict him, had they known (or were directed to assume) that the magazine 

bearing his fingerprint was not found in the Smith & Wesson firearm, but merely in 

close proximity and in the backpack with it. This reasoning is, in our view, flawed 

in several respects.

First, by its verdict, the jury appears to have rejected Coleman’s false 

dichotomy under which the jury would necessarily convict him if it believed the 

magazine with the fingerprint was in the weapon but otherwise would acquit. His 

counsel argued the same in his closing argument:

We don’t know which clip was up in the Smith & Wesson. If that clip 

had the fingerprints of [Coleman] . . . , I would submit to you that it 

would be logical to conclude that, not only had Devin Coleman touched 

that magazine, but he also touched and handled the firearm . . . . But we 

don’t know. It’s a 50-50 chance that that clip, the one with Devin’s 

fingerprint on it, was the one that was lose in the bag.49

48 Opening Br. at 34.

49 App. to Opening Br. at A1500–01.
19

Coleman’s counsel then observed that “50-50 [is] a tie,” and that therefore the 

prosecution had not proven that Coleman possessed the Smith & Wesson beyond a 

reasonable doubt.50 But the jury was not bound to—and apparently did not—adopt 

Coleman’s binary view of the significance of the fingerprint evidence. In fact, it is 

more likely that the jury weighed the fingerprint evidence as we do. For us, the 

relevance of the fingerprint evidence on the .40 caliber magazine is that it tended to 

establish that Coleman possessed a .40 caliber handgun. Whether the magazine was 

found inside or outside the actual .40 caliber handgun found in the same backpack 

does not tip the scales one way or the other. Unlike in Deberry, where the absence 

of blood and hair on the missing clothing would have created a reasonable doubt that 

Deberry committed the charged crimes, here the presence of Coleman’s fingerprints 

on the .40 caliber magazine in close proximity to the weapon in question is hardly 

exculpatory even if, standing alone, “it is not proof that [Coleman] possessed the 

weapon.”51 

For purposes of our analysis, we have considered Coleman’s best-case 

hypothetical scenario and have assumed that the probation officer recorded the 

positions of the two .40 caliber magazines at the time of seizure and that the 

fingerprint evidence was found on the loose magazine, not in the gun. Would this 

50 Id. at A1501–03.

51 Opening Br. at 34.
20

make it measurably less likely that the jury would convict Coleman of possessing 

the .40 caliber gun? We think not. From our point of view, the fingerprint on the 

magazine sitting next to the gun is, for all intents and purposes, and when considered 

with the other evidence of possession (i.e., Coleman’s statement of the day before 

and the weapon’s presence in Coleman’s backpack) as incriminating as a fingerprint 

found on the magazine inside the gun. It follows that the “evidence” upon which 

Coleman has constructed his Lolly/Deberry claim is not exculpatory in the sense we 

have recognized in our “missing evidence” case law.52

We have also considered a different scenario in which neither of the .40 

caliber magazines bore Coleman’s fingerprints and ask whether, in that hypothetical 

event, the evidence of Coleman’s possession of the firearm would be sufficient to 

sustain his conviction. In our view, it would be. Viewing the evidence, including 

Coleman’s statement the day before that he had purchased guns the day before that 

and the presence of two guns in a backpack found in Coleman’s room and in his 

backpack, a reasonable juror could find Coleman guilty beyond a reasonable doubt 

of possessing one or both guns. It is illogical in our view to conclude that, because 

in the actual event, fingerprints were found and those prints might have been on the 

52 This view of the purportedly missing evidence also undermines Coleman’s claim that the 

probation officer’s failure to record the original location of the magazines was negligent. Put 

differently, we cannot fault the officer’s failure if we ourselves discount the evidentiary relevance 

of whether the magazines were inside or outside the gun.
21

loose magazine, the absence of prints on the magazine inside the gun tends to show 

he did not possess the gun. 

Coleman’s argument also asks us to assume that the jury credited his selfserving testimony that purportedly explained away his recorded statement from the 

day before that he had “spent $1,700 on guns yesterday” and the presence of his 

fingerprint on what he posits was the loose magazine. But this assumption, as we 

have explained above, is belied by the jury’s guilty verdict. The jury soundly 

rejected Coleman’s claim that he was unable to purchase guns because of lack of 

funds. To the contrary, by all appearances, the jury concluded that Coleman 

possessed at least one of the two handguns found in his blue backpack—most 

probably, the .40 caliber Smith &Wesson,53 given his possession of the unloaded .40 

caliber magazine.

In sum, the evidence that Coleman claims was “missing” at his trial was of 

dubious exculpatory value. And to the extent it had any such value, Coleman has 

53 Coleman’s argument assumes that the jury found him guilty of possessing the Smith & Wesson 

.40 caliber firearm and not the 9mm Ruger. This premise is based on the jury’s acquittal of 

Coleman on the other weapon charge and the ammunition charge. According to Coleman, because 

the jury acquitted him on the ammunition charge and the 9mm Ruger was loaded, the guilty verdict 

must necessarily be directed to the .40 caliber Smith & Wesson firearm charge. But that is the 

type of assumption about a jury’s deliberative framework that this Court has frequently, if not 

consistently, eschewed. It should be sufficient to note that, while Coleman posits a reasonable 

explanation of the jury’s verdicts under which the conviction relates to the .40 caliber Smith & 

Wesson and the acquittal to the 9mm Ruger, that is not the only conceivable explanation. Because 

the evidence at trial was, in our view, sufficient to sustain a conviction for possession of either of 

the firearms, we are not prepared to conclude that the ammunition-charge acquittal, which could 

have been the product of jury lenity, means that the jury could not have convicted Coleman of 

possessing the Ruger.
22

not explained how that would have been apparent to the probation officer upon his 

seizure of Coleman’s backpack and his discovery of the weapons and magazines in 

it.

III

Because the “missing evidence” that forms the basis of Coleman’s argument 

is not physical evidence subject to disclosure under Rule 16 and was not, in any 

event, likely to be exculpatory, Coleman’s Lolly/Deberry claim fails. We, therefore,

affirm the Superior Court’s judgment of conviction.