IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARSHALL C. BROWN, §

§ No. 282, 2017

Defendant Below, §

Appellant, § Court Below—Superior Court

§ of the State of Delaware

v. §

§ Cr. ID No. 1505023582A(N)

STATE OF DELAWARE, §

§

Plaintiff Below, §

Appellee. §

Submitted: March 7, 2018

Decided: March 13, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

O R D E R

This 13

th day of March, 2018, having considered the parties’ briefs and the 

record below, it appears to the Court that:

A New Castle County grand jury indicted Appellant Marshall Brown 

on (i) Home Invasion; (ii) two counts of First Degree Assault; (iii) First Degree 

Burglary; (iv) First Degree Reckless Endangering; (v) three counts of First Degree 

Robbery; (vi) eight counts of Possession of a Firearm During the Commission of a 

Felony; (vii) eight counts of Wearing a Disguise During the Commission of a 

Felony; (viii) Second Degree Conspiracy; (ix) Endangering the Welfare of a Child; 

and (x) Possession of a Firearm by a Person Prohibited. Brown’s first trial in 2016 

ended in a mistrial when the jury was unable to reach a unanimous verdict. When 
2

Brown was retried in 2017, the jury found Brown guilty of all charges except for 

Possession of a Firearm by a Person Prohibited. After declaring Brown a habitual 

offender, the Superior Court sentenced Brown to life imprisonment plus 388 years. 

In this appeal, Marshall Brown raises a single issue: whether the 

observation of Brown by two witnesses at his first trial was the equivalent of an 

impermissibly suggestive pretrial identification procedure. Brown claims that it was 

and that, therefore, his due-process rights were violated when the two witnesses were 

permitted to offer identification testimony at his second trial.

At the first trial, the State admitted the two witnesses’ prior out-of-court 

identifications, but did not ask them to identify Brown in court. At the beginning of 

the third day of trial, after the witnesses testified, the State requested the court to lift 

its sequestration order so that the witnesses could observe the balance of the trial. 

Defense counsel did not object, and the Superior Court granted the request. Brown 

claims that the witnesses’ “observing him extensively at the first trial [after they 

testified] was analogous to [an] unduly suggestive pretrial show-up identification,”1

requiring exclusion of courtroom identification by the witness at the second trial.

Brown raised the issue below by way of a motion in limine to preclude 

the witnesses from identifying him in court at his second trial. After a hearing at 

 

1 Appellant’s Opening Br. 10.
3

which both witnesses testified, the Superior Court denied the motion and allowed 

both witnesses to provide identification testimony at trial.

We review a denial of a motion to exclude evidence after an evidentiary 

hearing for abuse of discretion.2 Our review of the identification procedure for 

compliance with the Constitution is de novo.

3

Because the “primary aim of excluding identification evidence obtained 

under unnecessarily suggestive circumstances is to deter law enforcement use of 

improper procedures,”4and the police did not intentionally orchestrate the 

witnesses’ observation of Brown at the first trial to procure an identification, the 

Superior Court correctly concluded that no constitutional violation occurred. 

Moreover, after hearing the witnesses’ testimony during a pretrial hearing, the 

Superior Court thoughtfully balanced the probative value of the testimony against 

the danger of unfair prejudice under D.R.E. 403. Under the circumstances, allowing 

the challenged testimony was not an abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor

Justice

 

2 Culver v. State, 956 A.2d 5, 10 (Del. 2008).

3

See id.

4 Perry v. New Hampshire, 565 U.S. 228, 241 (2012).