missing evidence instruction in Delaware

2026The court denied the motion, finding that the doorbell video was not in the police’s possession and that the police did not have a duty to ask for the video at the time.20 The court also held that, even if the police had a duty to collect the video, “the purported failure to collect . . . was not negligent or in bad faith” and therefore did not require a missing evidence instruction.21 Finally, the court found that the police preserved the relevant evidence because the bodycam captured the audio while the police reviewed the video clips.22 (7) On the second day of trial, the court granted Boul

2026The court was “not prepared to make a blanket statement at this time that the police are required to ask for the video under every circumstance as [Boulden] implies.” A29–30. 21 A30. 22 Id. 4 Felony count.23 The jury found Boulden guilty of the two remaining charges.24 (8) On appeal, Boulden argues that the court erred when it denied his motion in limine to dismiss or give a missing evidence instruction.

2023Taylor insists officers had a duty to create a document or report on “who moved [Aloysius’s] cell phone and where [the first-responders] originally observed the cell phone . . . .”72 It is this non-existent investigative document, says Taylor, that “could easily have [been] gathered and preserved,” and therefore warrants the missing-evidence instruction.73 71 Id. (citing Johnson v. State, 27 A.3d 541, 547 (Del. 2011); Deberry, 457 A.2d at 753 ; Hammond v. State, 569 A.2d 81, 85 (Del. 1989); Lolly, 611 A.2d at 958 ). 72 Am.

1999Deberry v. State, 457 A.2d at 751-52 ; Bailey v. State, 521 A.2d at 1090 ; Hammond v. State, 569 A.2d at 85 ; Lolly v. State, 611 A.2d at 959-960 .

2023The 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.

2023The 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.

2019Trial Counsel did not object to admissibility of the statement; accordingly, the Supreme Court reviewed this Court’s admission of the statement for plain error.26 The Supreme Court found no plain error in this Court’s consideration of the statement, concluding that the evidence of Defendant’s guilt was overwhelming even absent the purported hearsay.27 Finally, Defendant argued that this Court erred by denying a missing evidence instruction on the grounds that certain evidence offered at trial was originally 24 See id. at 1148–49. 25 See id. at 1150 (“In this bench trial, the [Superior Court] a

2019Trial Counsel did not object to admissibility of the statement; accordingly, the Supreme Court reviewed this Court’s admission of the statement for plain error.26 The Supreme Court found no plain error in this Court’s consideration of the statement, concluding that the evidence of Defendant’s guilt was overwhelming even absent the purported hearsay.27 Finally, Defendant argued that this Court erred by denying a missing evidence instruction on the grounds that certain evidence offered at trial was originally 24 See id. at 1148–49. 25 See id. at 1150 (“In this bench trial, the [Superior Court] a

2015Lolly, 611 A.2d at 960. '9 meon v. State, 710 A.2d 197, 199 (Del. 1998) (“The remedy for failure to preserve potentially exculpatory evidence is a missing evidence instruction commonly referred to as a Lolly or Deben-y instruction.

1998See Lunnon v. State, 710 A.2d 197, 201 (1998) (concluding that a missing evidence instruction is a ruling on the admissibility of evidence and is not a prohibited charge on matters of fact); Hamann v. State, Del.Supr., 565 A.2d 924, 929 (1989) (holding that the correct statement of the law in the jury instructions was not a comment on the evidence). 28 .

2023Taylor insists officers had a duty to create a document or report on “who moved [Aloysius’s] cell phone and where [the first-responders] originally observed the cell phone . . . .”72 It is this non-existent investigative document, says Taylor, that “could easily have [been] gathered and preserved,” and therefore warrants the missing-evidence instruction.73 71 Id. (citing Johnson v. State, 27 A.3d 541, 547 (Del. 2011); Deberry, 457 A.2d at 753 ; Hammond v. State, 569 A.2d 81, 85 (Del. 1989); Lolly, 611 A.2d at 958 ). 72 Am.

2023A defendant must make specific allegations of actual prejudice and substantiate them.”). 56 Def.’s Mot. for Postconviction Relief, at 8 (A-620). 57 Trial Tr., Feb. 8, 2018, at 49-69 (A-203-223). -16- his later-requested Lolly/Deberry jury instruction,58 i.e., an instruction that the jury should infer that any such video evidence would have been exculpatory to Mr. Lindsey had the State obtained and preserved it.59 While the application for a missing evidence instruction was ultimately unsuccessful at trial,60 Mr. Malik’s investigation and pursuit of this issue at trial was wholly reasonable. 61

2023Mr. Taylor would only have been convicted of PFBPP.”). -10- errors, the result of the proceeding would have been different.58 There is a strong presumption that a criminal defense counsel’s representation was reasonable.59 When assessing the reasonableness of counsel’s conduct, the Court considers “not what is possible or what is prudent or appropriate, but only what is constitutionally compelled.”60 Too, one claiming ineffective assistance “must make specific allegations of how defense counsel’s conduct actually prejudiced the proceedings, rather than mere allegations of ineffectiveness.”61 L

2017On November 13, 2015, your attorney filed a Motion in Limine to exclude the proffered expert testimony of Sergeant Wright regarding whether the drugs you possessed were for personal use or 6 Coleman, 2003 WL 22092724 , at *2, quoting Strickland, 466 U.S. at 689 . 5 not.

2026Sep. 19, 2012) (TABLE) (denying motion for interlocutory appeal); see also Hercules, Inc., 784 A.2d at 499–500 (denying the “motion in limine” because it was actually an untimely motion for summary judgment). 5 request to dismiss because the request was procedurally improper. (10) The court also did not err by denying the request for a missing evidence instruction.

2025Muniz-Rodriguez did not seek a missing-evidence instruction at trial, nor has he shown that video of the Child’s arrival at the hospital, if such video 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 82 . 4 existed, would have been favorable to the defense.

2025Muniz-Rodriguez did not seek a missing-evidence instruction at trial, nor has he shown that video of the Child’s arrival at the hospital, if such video 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 82 . 4 existed, would have been favorable to the defense.

2025Muniz-Rodriguez did not seek a missing-evidence instruction at trial, nor has he shown that video of the Child’s arrival at the hospital, if such video 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 82 . 4 existed, would have been favorable to the defense.

2025We find no plain error as to these issues. (9) Muniz-Rodriguez asserts that thirteen photographs that he sent to the detective during his interview at the police station—photographs suggesting a positive relationship between the Child and Muniz-Rodriguez, taken before the day 6 See Brown v. State, 897 A.2d 748, 753 (Del. 2006) (finding no plain error as to defendant’s contention that the trial court, sua sponte, should have given a missing-evidence instruction); see also Tisinger v. State, 2025 WL 2047466 , at *2 (Del.

2025Muniz-Rodriguez did not seek a missing-evidence instruction at trial, nor has he shown that video of the Child’s arrival at the hospital, if such video 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 82 . 4 existed, would have been favorable to the defense.

2023Aug. 14, 2000) (finding that “because Cook has not demonstrated that he was entitled to a ‘missing evidence’ jury instruction, Cook was not prejudiced by defense counsel’s failure to request such an instruction”). 81 Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just conceivable.” (citing Strickland, 466 U.S. at 693 )); Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (stating that prejudice requires that there is “a substantial likelihood—i.e., a meaningful chance—that a different outcome would have occurred but for counsel’s de

2023The burden is on Taylor to show that his counsel’s conduct fell below an objective standard of reasonableness, “i.e., that no reasonable lawyer would have “failed to record some calls,” and concluding that “no evidence was missing”), aff’d, 970 F.2d 900 (3d Cir. 1992); Metcalf v. Commonwealth, 158 S.W.3d 740, 747 (Ky. 2005) (finding a missing-evidence instruction was not warranted where the “recording device malfunctioned,” since the evidence was neither lost nor destroyed, instead it “never existed”); Hajireen v. State, 39 A.3d 105, 119-20 (Md.

2023The burden is on Taylor to show that his counsel’s conduct fell below an objective standard of reasonableness, “i.e., that no reasonable lawyer would have “failed to record some calls,” and concluding that “no evidence was missing”), aff’d, 970 F.2d 900 (3d Cir. 1992); Metcalf v. Commonwealth, 158 S.W.3d 740, 747 (Ky. 2005) (finding a missing-evidence instruction was not warranted where the “recording device malfunctioned,” since the evidence was neither lost nor destroyed, instead it “never existed”); Hajireen v. State, 39 A.3d 105, 119-20 (Md.

2023Mot. for Postconviction Relief at 15-16 (emphasis added). “[T]he 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.” Coleman, 289 A.3d at 625 (emphasis added) (citations omitted). 78 D.I. 108. 79 Coleman, 289 A.3d at 626-67 (rejecting defendant’s contention that a missing-evidence instruction was required where police “fail[ed] to record the position of” the defendant’s two firearm magazines in relation to the firearm itself); Baynum v. State, 133 A.3d 963, 967-69

2023See 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. 13 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 limi

2023Aug. 14, 2000) (finding that “because Cook has not demonstrated that he was entitled to a ‘missing evidence’ jury instruction, Cook was not prejudiced by defense counsel’s failure to request such an instruction”). 81 Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just conceivable.” (citing Strickland, 466 U.S. at 693 )); Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (stating that prejudice requires that there is “a substantial likelihood—i.e., a meaningful chance—that a different outcome would have occurred but for counsel’s de

2023Mr. Taylor would only have been convicted of PFBPP.”). -10- errors, the result of the proceeding would have been different.58 There is a strong presumption that a criminal defense counsel’s representation was reasonable.59 When assessing the reasonableness of counsel’s conduct, the Court considers “not what is possible or what is prudent or appropriate, but only what is constitutionally compelled.”60 Too, one claiming ineffective assistance “must make specific allegations of how defense counsel’s conduct actually prejudiced the proceedings, rather than mere allegations of ineffectiveness.”61 L

2023Aug. 26, 2015) (finding a duty under Lolly/Deberry is not triggered where evidence “simply d[oes] not exist”); Ruffin v. State, 131 A.3d 295, 308 (Del. 2015) (finding Lolly/Deberry “only requires that the State adequately gather and preserve physical evidence,” not test that physical evidence (citations omitted)).

2023App. 2012) (finding the State’s failure to record the defendant’s interview was not evidence for which a missing-evidence instruction would be warranted). 80 State v. Reyes, 155 A.3d 331, 355 (Del. 2017) (finding that prejudice cannot be established where there is “no proper basis for giving a missing evidence instruction”); Cook v. State, 2000 WL 1177695 , at *4 (Del.

2023A defendant must make specific allegations of actual prejudice and substantiate them.”). 56 Def.’s Mot. for Postconviction Relief, at 8 (A-620). 57 Trial Tr., Feb. 8, 2018, at 49-69 (A-203-223). -16- his later-requested Lolly/Deberry jury instruction,58 i.e., an instruction that the jury should infer that any such video evidence would have been exculpatory to Mr. Lindsey had the State obtained and preserved it.59 While the application for a missing evidence instruction was ultimately unsuccessful at trial,60 Mr. Malik’s investigation and pursuit of this issue at trial was wholly reasonable. 61

2023United States v. Fries, 781 F.3d 1137, 1152 (9th Cir. 2015) (rejecting missing-evidence instruction where “the FBI agent merely failed to record the telephone call,” and finding a missing-evidence instruction is only to be used where “evidence was lost or destroyed” (citation omitted)); United States v. Flores, 1991 WL 171394 , at *14 (E.D.

2020In light of the availability of secondary/substitute evidence (Harrison’s 4S MeCrey v. State, 2008 WL 187947, at *2 (Del.

2018Trial counsel states that the failure to collect the pack of cigarettes only evidenced “a shoddy police investigation”, but not that the State lost or destroyed any evidence, and 102 See, Malin v. State, 2009 WL 537060 , at *5 (Del.Super.); Desmond v. State, 654 A.2d 821, 829 (Del. 1994) 105 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at * 5. 22 he did not believe this fact pattern Warranted a missing evidence instruction, so he did not request one.104 Had trial counsel believed a missing evidence instruction pursuant to Deberrjy v. State105and Lolly v. State106wa

2016Prior to trial, the Court denied Defendant’s request for a missing evidence instruction because the State was never in possession of the video, there was no evidence of negligence or bad faith with respect to the police officers’ efforts to retrieve or secure the video, and the police officers’ reliance on the representations made by the Budget Inn’s employee and the DVR installer was not unreasonable.108 In addition, after the close of evidence at trial the Defendant renewed his motion for a missing evidence instruction, which was independently denied by the Court.109 Deberry’s first prong pr

2016Deberry’s third prong requires the Court to determine what consequences should flow from such a breach.112 In making this determination, the Court considers: “(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 the conviction.”113 111 Powell v. State, 49 A.3d 1090 , 1101-02 (Del. 2012). 112 Id. 113 Id. (quoting United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979)). 20 In Wainer v. State, the investigating officer, Jeffrey Melvin (“Officer Melvin”), took notes during