IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )

)

) Crim. ID No. 1312014951

v. )

) Supreme Court No. 147, 2015

)

JEROME MADISON )

Submitted: July 7, 2015

Decided: July 21, 2015

ORDER ON DEFENDANT’S MOTION TO COMPEL

This 21st day of July, 2015, upon consideration of the Defendant’s Motion to 

Compel (D.I. 72), the State’s response (D.I. 74), and the record in this matter, it 

appears to the Court that:

(1) Defendant-Appellant Jerome Madison was convicted of eleven crimes 

after a nonjury trial in this Court including, inter alia, first degree rape, attempted 

rape, unlawful sexual contact, kidnapping and assault involving two different 

victims. At trial, Madison was represented by counsel. At sentencing, Madison 

was sentenced to a term that included forty-two years of imprisonment.

(2) His trial counsel filed Madison’s direct appeal to the Delaware 

Supreme Court. The Office of Public Defender then substituted for trial counsel 
-2-

but has since, at Madison’s urging, been discharged so that he may proceed pro 

se.

1

 His direct appeal remains pending before the Delaware Supreme Court with 

Mr. Madison representing himself.2

(3) On July 7, 2015, Madison filed the instant “Motion to Compel/DNA 

Results/Chain of Custody” asking that this Court compel the State to produce: 

(a) the “chain of custody report concerning DNA samples taken from” the victims 

and himself; and (b) “all scientific test results taken from” the victims and 

himself.3 Presumably, this application is made pursuant to Superior Court 

Criminal Rule 16(d)(3)(C), even though that is a rule governing pre-trial discovery 

that requires both a showing of a party’s failure to comply with a proper Rule 16 

discovery request and the filing of a timely motion after such failure.4

 

(4) The State has responded to Madison’s motion as follows: (1) during 

the pendency of Madison’s direct appeal, this Court is without jurisdiction to 

decide his motion; and (2) even if the Court could act on the motion, “DNA testing 

was not requested nor performed because identity was not an issue in the case . . . 

 1 Madison v. State, Del. Supr., No. 147, 2015, Valihura, J. (June 30, 2015).

2 Id. 

3 Def. Mot. to Compel, at 8. 

4 Del. Super. Ct. Crim. R. 16(d)(3)(C) (“Motion to compel. -- If a party fails to comply 

with a request the opposing party may move for an order compelling compliance with the 

request. A motion to compel shall be filed within ten days after the time for response or at such 

other time as ordered by the court.”). 
-3-

[b]oth Defendant and Defense counsel were made aware that DNA testing was not 

requested prior to June of 2014.”5

(5) Does the filing of a direct appeal in a criminal case divest the Superior 

Court of jurisdiction to consider a motion to compel discovery while the appeal is 

pending? The general rule is that “the proper perfection of an appeal . . . divests 

the trial court of its jurisdiction over the cause of action.”6

 There are exceptions to 

the general rule. Our Supreme Court has recognized limited circumstances, 

involving “collateral or independent matters,” where a trial court might exercise 

concurrent jurisdiction.7

 But it is the general rule that is most-oft applied in a 

criminal case,

8

 and that should be followed here. Madison’s is not a request as to 

a “collateral or independent matter.” 

(6) Before the Delaware Supreme Court only “the original papers and 

exhibits [ ] shall constitute the record on appeal.”9

 There is no “discovery” during 

the pendency of an appeal. And the parties are not free to expand or supplement 

 5 State’s Ans. to Mot. to Compel, at 2. 

6 Radulski ex rel Taylor v. Delaware State Hosp., 541 A.2d 562, 567 (Del. 1988).

7 Id. 

8 See Eller v. State, 531 A.2d 948, 951 (Del. 1987) (Superior Court was divested of 

jurisdiction to rule on the motion for new trial when direct appeal was pending); Carter v. State,

2005 WL 1175938, at *1 (Del. May 16, 2005) (same for postconviction motion).

9 Del. Supr. Ct. R. 9(a); Id. 9(b) (the record on appeal contains all of the original papers, 

photographs and documentary exhibits in the court below, along with the prepared transcript).
-4-

the record on appeal.

10 In turn, this Court has no jurisdiction to enter orders 

designed to do so. If Madison prevails on appeal, any discovery matters would be 

addressed by this Court before any potential re-trial. If he is unsuccessful on 

appeal, expansion of the record and discovery matters can be addressed during any 

postconviction proceedings.11

NOW, THEREFORE, IT IS ORDERED that Madison’s Motion to 

Compel is DISMISSED, without prejudice, as this Court can take no action on 

that application; his pending direct appeal divested this Court of jurisdiction to 

address the merits of such Motion.

12

/s/ Paul R. Wallace

Paul R. Wallace, Judge

Original to Prothonotary

cc: Elizabeth R. McFarlan, Esquire, Chief of Appeals

Karin M. Volker, Esquire, Deputy Attorney General

Mr. Jerome Madison, pro se

 10 See generally Delaware Appellate Handbook § 4.14, at 4-xviii (2d ed. 1996). 

11 See Super. Ct. Crim. R. 61(g) (providing that the Court “may direct that the record be 

expanded by the parties by the inclusion of additional materials relevant to the determination of 

the merits of the motion”); see also Dawson v. State, 673 A.2d 1186, 1197-98 (Del. 1996) (while 

this Court’s Criminal Rule 61 makes no provision for additional discovery, the Court has found it 

possesses “‘the inherent authority under Rule 61 in the exercise of its discretion to grant 

particularized discovery for good cause shown’”—such discovery may be granted under a good 

cause standard when an inmate demonstrates a “compelling reason for the[ ] [requested 

material’s] discovery.”).

12 Walker v. State, 2000 WL 1535299 (Del. Oct. 10, 2000).