133 A.3d 963
Del.2016Background
- Baynum was charged and convicted of multiple offenses (burglary, unlawful imprisonment, menacing, assault, harassment, offensive touching) after an October 24, 2013 incident at his estranged wife Manisha’s residence involving force, cords, and a knife.
- Police interviewed Manisha in three recorded segments; between the second and third segments she was alone in the interview room for about an hour and made phone calls that were not recorded.
- Detective Burse was told by another officer that a phone call suggested a possible inconsistent statement by Manisha about where she first saw Baynum; Burse reopened and recorded a third segment in which he confronted her about the inconsistency.
- Defense moved (Motion in Limine) to dismiss or, alternatively, for a Lolly missing-evidence jury instruction, arguing the State failed to collect/preserve the unrecorded phone statement that could impeach Manisha.
- Superior Court denied the motion, finding no duty breached to collect/preserve the unrecorded statement, no bad faith and only slim evidence of negligence, available secondary evidence (witness testimony and recorded questioning), and sufficient other evidence to sustain conviction.
- On appeal the Delaware Supreme Court affirmed, holding no duty required recording the unasked-for phone calls, no prejudice from any alleged failure, and that a Lolly instruction was not warranted.
Issues
| Issue | Baynum's Argument | State's Argument | Held |
|---|---|---|---|
| Whether police had a duty to collect/preserve Manisha’s unrecorded phone statement such that failure required relief under Lolly/Deberry | The unrecorded call contained a material inconsistent statement and the State should have recorded/preserved it; failure entitles him to Lolly instruction or dismissal | The State recorded all formal questioning, disclosed the recorded confrontation, had no duty to record an unprompted private phone call, and produced available impeachment evidence | No duty to preserve the unrecorded phone call; Superior Court properly refused a Lolly instruction |
| Whether the State acted with negligence or bad faith in not recording the hour when Manisha was alone | Department policy required continued recording; nonrecording was negligent and warrants sanction | No written policy required continuous recording; evidence of negligence was slim and no bad faith shown | No bad faith; only minimal/negligent practice at best, not sufficient to trigger relief |
| Whether secondary/substitute evidence rendered missing statement harmless | Missing recording was critical impeachment evidence and its absence prejudiced defense | Witnesses (Burse, Ziemba, Manisha) and recorded third interview segment provided substitute impeachment evidence | Substitute and secondary evidence was available and reliable; prejudice not established |
| Whether other trial evidence was sufficient so that any error was harmless | Missing evidence could have undermined credibility and affected verdict | Overwhelming other evidence supported convictions | Other evidence was sufficient to sustain convictions beyond a reasonable doubt; no reversal warranted |
Key Cases Cited
- Lolly v. State, 611 A.2d 956 (Del. 1992) (establishes missing-evidence instruction when State fails to gather/preserve material evidence)
- Deberry v. State, 457 A.2d 744 (Del. 1983) (duty to preserve evidence rooted in due process; applies to investigative agencies)
- McNair v. State, 990 A.2d 398 (Del. 2010) (standard of review for denial of Lolly instruction; describes missing-evidence instruction meaning)
- Hendricks v. State, 871 A.2d 1118 (Del. 2005) (framework for analyzing duties and consequences when evidence not preserved)
- Johnson v. State, 27 A.3d 541 (Del. 2011) (Lolly duty construed to include gathering evidence ab initio and agencies should adopt broad preservation rules)