IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY WASHINGTON § § No. 94, 2016 Defendant Below, § Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § No. 1412002092A § Plaintiff Below, § Appellee. §

Submitted: December 14, 2016 Decided: December 15, 2016

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

ORDER

On this 15th day of December 2016, having considered the appellant’s

opening brief, the State’s answering brief, and the Superior Court record, it appears

to the Court that:

(1) In October 2015, following a three-day trial, a Superior Court jury

convicted Anthony Washington of Aggravated Possession, Possession of Drug

Paraphernalia, Tier 4 Drug Dealing, Possession of a Firearm During the

Commission of a Felony, and Conspiracy Second Degree. This is Washington’s

appeal of two of the Superior Court’s rulings on evidence.

(2) First, Washington argues that the Superior Court abused its discretion

by granting the State’s pretrial Motion for Extension to produce the controlled substances laboratory report. But, we need not reach the merits of his argument

because it is barred under Supreme Court Rule 8, which requires “[o]nly questions

fairly presented to the trial court may be presented for review.”1 Here, Washington

did not oppose the report when it was produced on September 21st or in later

motions2 and so waived the argument.3

(3) Even if this Court reached the merits of Washington’s argument, he

would not prevail. This Court reviews Superior Court pretrial discovery rulings for

abuse of discretion4 and will only reverse the Superior Court “if the substantial

rights of the accused are prejudicially affected.” 5 To determine prejudice, this

Court considers: “(1) the centrality of the error to the case; (2) the closeness of the

case; and (3) the steps taken to mitigate the results of the error.”6 The Superior

Court’s conclusion that the State’s Motion for Extension was appropriate was a

rational conclusion. Here, the report confirmed the validity of the field tests

showing that the drugs were in fact drugs, which was not an issue Washington

contested at trial. Thus the delay—really “delays” because the State also missed

the Superior Court’s revised deadline—was not central to the case, and

1 Id.; See Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 2 App. to Appellant’s Corrected Opening Br. at A5 (Superior Court Docket). 3 Cf. 1 JOSEPH M. MCLAUGHLIN, WEINSTEIN’S FEDERAL EVIDENCE § 103.11[2][b] (2d ed. 2016) (“[A] motion in limine is ineffective to preserve a claim of error in the admission of evidence if the trial court deferred ruling on it.”). 4 Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006). 5 Hopkins v. State, 893 A.2d 922, 927 (Del. 2006). 6 Id. (citing Ray v. State, 587 A.2d 439, 441 (Del. 1991).

2 Washington did not experience prejudice. Although defense counsel should

generally not be expected to endure late discovery, the Superior Court was within

its discretion to grant the extension after the deadline passed.7

(4) Second, Washington argues that the Superior Court abused its

discretion in denying his pretrial Motion in Limine seeking to exclude DNA

evidence under Delaware Rules of Evidence 403. Washington argues that the

DNA evidence was confusing, misleading, and its probative value was

substantially outweighed by its prejudicial effect. The Superior Court’s decision to

admit evidence is reviewed for abuse of discretion.8 The Superior Court denied

Washington’s Motion in Limine because it found the probative value of the

evidence in supporting the State’s theory that Washington was one of several

people handling the guns was not substantially outweighed by its prejudicial effect

when the evidence could be tested under cross-examination. Although the DNA

evidence did not conclusively show that the DNA found on the gun was

7 Although we cannot find that the Superior Court abused its discretion in granting the State’s Motion for Extension when the State failed to meet the deadlines imposed by the scheduling order, we note our concern over late production of this kind. We recognize that given high volumes of serious criminal cases, there is stress on prosecuting authorities to produce required discovery in a timely manner. But, that stress also extends equally to the defense, and defense counsel should not be expected to deal regularly with late discovery of important materials. That is unfair, compromises the defense’s ability to prepare professionally for trial, and the risk of prejudice due to the disruption to the defense’s ability to prepare must be taken seriously by the trial court when addressing a motion complaining about late discovery. To this point, it is not necessarily that the defense has no time to review the specific late materials produced, it is that the need to do so in a rushed manner necessarily can affect adversely other work on the case that defense counsel needs to complete. 8 Lampkins v. State, 465 A.2d 785, 790 (Del. 1983).

3 Washington’s, it did show that only one in eleven African Americans had a DNA

profile consistent with what was found on the gun, Washington had that profile,

and the Superior Court weighed the probative value of that evidence against

prejudice in a rational way. Thus, the Superior Court did not abuse its discretion in

admitting the evidence.

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

Court is AFFIRMED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

4