IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

v. )

) ID No. 2007003250

CAPICE JOHNSON, )

Defendant. )

Submitted: February 20, 2023

Decided: February 27, 2023

ORDER

Upon Defendant’s Motion in Limine – DENIED.

This 27

th day of February, 2023, having considered Defendant’s Motion in 

limine seeking a Lolly/Deberry instruction, the State’s Response, oral arguments of 

counsel and the record in this matter; it appears to the Court that:

1. Defendant Capice Johnson (hereinafter “Defendant”) was indicted on 

September 21, 2020, and charged with one count of Possession of a Firearm by a 

Person Prohibited in violation of Title 11, Section 1448 of the Delaware Code, one 

count of Driving Under the Influence of a Drug in violation of Title 21, Section 4177 

of the Delaware Code, one count of Possession of Marijuana in violation of Title 16, 

Section 4764(d) of the Delaware Code and one count of No Proof of Insurance, in 
violation of Title 21, Section 2118(p) of the Delaware code, following a collision 

which occurred on July 7, 2020.

1

2. Defendant filed this Motion in Limine on January 17, 2023.2 The State 

filed its response on January 31, 2023,3and the motion was heard on February 17, 

2023.4 During oral argument on the motion, technological difficulties prevented the 

relevant surveillance video from playing in the courtroom. After the hearing, the 

State provided the Court with a copy of the surveillance for review prior to a decision 

on the motion. This was received on February 18, 2023, and reviewed in chambers

with consent of the parties.5

3. The Court will briefly recount here the relevant evidence presented with 

respect to this motion. Defendant was the sole occupant of a 2013 white Kia Optima, 

a passenger sedan, which crashed into a concrete barrier approaching the Biddles 

Toll Plaza on Delaware State Route 1 on July 7, 2020. The surveillance reveals that 

upon the crash occurring, various toll booth workers immediately attend to the driver 

1 See Indictment, State v. Capice Johnson, ID No. 2007003250 (Del. Super. 

Ct. Sept. 21, 2020) (D.I. 1).

2 D.I. 21.

3 D.I. 22

4 D.I. 23.

5

It was agreed at the hearing that the surveillance will be marked as State’s 

Exhibit 1 upon receipt by the Court. Upon receipt, the surveillance was so 

marked.
and sole occupant of the crashed vehicle, who was ultimately revealed to be 

Defendant. The vehicle was registered to a Kimberly Moreland, not Defendant.

4. Upon hearing the crash, one toll booth worker, who was inside of the 

Administration Building adjacent to the toll plaza, ran out of the building and 

observed Defendant in the driver’s seat.6 As stated above, the surveillance video 

reveals that this witness was not the only witness who approached the Kia following 

the crash, but multiple apparent toll booth employees went over to the car. The 

other employees, however, have not been identified by the State or interviewed in 

relation to this case. Therefore, the sole identified witness reported to the Delaware 

State Police investigating Troopers that, “she observed the Defendant bend over 

inside the car before reaching for something under the driver seat...[and]...after 

Defendant reached under the seat, he had a black sweatshirt in hand, he exited the 

vehicle, opened the trunk, and placed the sweatshirt inside of the trunk toward the 

right passenger side.”7 

7. Likewise, the surveillance video shows Defendant exit his vehicle with 

a dark object in his hand, proceed to the trunk and place the dark object in the trunk 

before returning to the driver’s seat. 

6 State’s Reply to Mtn., p. 2.

7

Id.
8. Investigating Troopers initiated a Driving Under the Influence 

investigation and it wasn’t until the Kia was eventually towed and impounded did 

an inventory search reveal a loaded 9mm handgun wrapped in a black sweatshirt, in 

the trunk.

8

 The handgun was collected and tested for DNA, with no results of 

evidentiary value. The black sweatshirt was not collected and left in the trunk of 

the vehicle, which was ultimately returned to the registered owner, with a tow slip 

being provided to Defendant upon completion. 

9. Defendant now moves in limine for a missing evidence instruction 

pursuant to Lolly v. State9and Deberry v. State.

10

 Defendant argues the Delaware 

State Police had a duty to preserve this black sweatshirt, were negligent in not doing 

so, and this negligence warrants a missing evidence instruction at trial. The State 

opposes, arguing no such duty exists in this factual scenario.

10. A Lolly/Deberry analysis requires the Court to first determine whether 

the unpreserved evidence, if in possession of the State, would have been subject to 

disclosure under Superior Court Criminal Rule 16 or under Brady v. Maryland.

11

 

The second step in a Lolly/Deberry analysis requires the Court to determine whether 

the State had a duty to preserve the non-collected evidence.12 If the State had a duty 

8

Id. 2-3.

9 611 A.2d 956 (Del. 1992).

10 457 A.2d 744 (Del. 1983).

11 Johnson, 27 A.3d at 546, citing Brady v. Maryland, 373 U.S. 83 (1963).

12 Id.
to collect the missing evidence, the Court must next determine the appropriate 

consequence that flows from the breach of that duty. In making that determination, 

the Court must examine the degree of negligence or bad faith involved, the 

importance of the missing evidence (i.e. the probative value and the reliability of 

secondary or substitution evidence available) and the sufficiency of the other 

evidence produced/to be produced.13

11. In support of his motion, Defendant cites to Johnson v. State.

14

 The 

Delaware Supreme Court in Johnson found a missing evidence instruction was 

required due to the police’s failure to collect a sweatshirt that was used to conceal a 

firearm in the backseat of a car, in which defendant Johnson was a passenger. While 

at first glance, Johnson appears similar, a closer look at the facts of Johnson reveal 

important distinguishing factors. Johnson was a passenger in a car driven by his 

one-time co-defendant, Reeves. Upon being pulled over, Reeves and Johnson were 

both asked to step out of the Reeves vehicle and were questioned by police after a 

firearm, wrapped in clothing, was located in the backseat. Johnson fled during this 

questioning and ran towards a trailer in which he had been staying. When the police 

approached this trailer, the owner showed them to Johnson’s room, and stated that 

Reeves also stayed with Johnson in that room on occasion. In this room, the police

13 Id. 546-547, citing Deberry v. State, 547 A.2d at 749 and Lolly v. State, 611 

A.2d at 960.

14 27 A.3d 541 (Del. 2011).
located another firearm, which was also wrapped in clothing: a pair of sweatpants. 

Initially, both Reeves and Johnson were charged, however, the State dropped the 

charges against Reeves and proceeded to trial solely against Johnson for the firearm 

offenses. 

12. In ruling that a Lolly/Deberry instruction should have been given, the 

Court reasoned that because the police were investigating two separate weapon 

possession offenses, “the police had a duty to gather and to preserve the clothing 

from the car, and the sweatpants from the bedroom, that concealed each of the 

weapons that were the basis for the criminal charges against Johnson.”15 The Court 

explained that a possession offense may certainly be proved by circumstantial 

evidence and concluded that had these clothes been collected, they would have been 

discoverable under Superior Court Criminal Rule 16. 

13. The Court continued its analysis and found that there was not sufficient 

secondary evidence of ownership to support not collecting the clothing. Johnson 

argued that that the clothes in which the weapons were concealed did not belong to 

him, and thus were important to his defense that the weapons did not belong to him. 

The Court agreed.16 Therefore, the Court turned to the final step and concluded that 

15 Id. at 547 (emphasis added).

16 Id. at 548.
the proper consequence which should have flowed from this breach was that a 

missing evidence instruction was warranted.17 

14. Here, had the evidence been collected, it would have undoubtedly been 

discoverable under Rule 16. However, that does not necessarily mean that the State 

had a duty to collect this sweatshirt here. In contrast to the facts before the Johnson 

court, Defendant was the sole operator of a vehicle, albeit not the owner, who is 

charged with a single count of possession of a firearm. There is no other linked 

investigation here, which diminishes the importance of the non-collected sweatshirt, 

if any. Therefore, under these circumstances, there was no duty to collect this 

sweatshirt, as the owner of the sweatshirt was irrelevant to this situation.

15. Defendant argues that the sweatshirt could have been tested for DNA, 

as he was injured in the crash and could have bled onto the sweatshirt. At this point 

in time, the record is devoid of evidence that there was any blood on Defendant’s 

hand and any arguments related to DNA is speculation.18

16. Even assuming arguendo that the State have had a duty to collect this 

sweatshirt, Defendant would not be entitled to a missing evidence instruction. 

Defendant appropriately concedes that there was no bad faith in failing to collect the 

sweatshirt. Therefore, the analysis into the consequence of the assumed breach of 

17 Id.

18 See Blenman v. State, 134 A.3d 760 (Del. 2016) (Table); 2016 WL 889551 

at *3.
duty continues under a finding that the Officer was negligent for not collecting the 

sweatshirt. In evaluating the degree of negligence involved, the record as it exists 

does not support this factor weighing heavily against the State. In conducting an 

inventory search of the Kia following a DUI investigation, the Trooper unexpectedly 

located a firearm wrapped in a black sweatshirt in the trunk. It was not negligence 

to not collect the sweatshirt given the fact that Defendant was the sole operator of 

the vehicle and there was a witness, corroborated by surveillance, who stated 

Defendant was seen carrying a black sweatshirt to the trunk. While it would have 

been best practices to collect the sweatshirt, it was not negligent to fail to do so.

17. Turning to the remaining analysis necessary in determining the 

consequences of this supposed breach of duty to collect, the non-collected sweatshirt 

is of minimal probative value in this factual scenario. The State asserts it will present 

the toll employee-witness who saw Defendant reach down in the front passenger seat 

of the Kia, pick up a black sweatshirt, exit the Kia, carry the sweatshirt to the trunk, 

open the trunk, place the sweatshirt in the trunk, close the trunk and then return to 

the driver’s seat of the Kia prior to the police arriving on scene. Additionally, 

surveillance video supports this witness statement. While the surveillance video 

does not clearly show what is in Defendant’s hands when he exits the vehicle to walk 

to the trunk, it is clear there is a dark object in his hands and he places that object in 

the trunk prior to returning to the driver’s seat of the Kia. Therefore, not only does 
the State have a witness, but that witness’ testimony is corroborated by the video. 

Therefore, the reliability of the secondary evidence is strong, as is the sufficiency of 

any other evidence to be produced/presented to the jury. 

18. Defendant remains free to argue to the jury any reasonable inferences 

from the facts regarding the sweatshirt or the investigation, but that the facts as the 

record stands at this point do not entitle him to a missing evidence instruction 

pursuant to Lolly/Deberry.

19

IT IS HEREBY ORDERED, that Defendant’s Motion in Limine for a 

Lolly/Deberry Instruction is DENIED. 

________________________________

Danielle J. Brennan, Judge

Original to Prothonotary

Cc: William L. Raisis, Esquire, Deputy Attorney General 

Sean A. Motoyoshi, Esquire, Office of Defense Services 

19 Defendant is correct, as he submitted in oral argument, that he has no burden

to produce evidence to support his claim, there must be record evidence to 

support any ruling on this issue above and beyond speculation. The record, 

as it currently exists pre-trial, does not support a ruling in favor of Defendant’s 

motion.