No. 540, 1998.Supreme Court of Delaware.
July 19, 1999.
Appeal from the Superior Court, CrA IN97-02-1735.
AFFIRMED.
Unpublished Opinion is below.
EARL EXUM, JR., Defendant Below, Appellant v. STATE OF DELAWARE, in and for New Castle County, Plaintiff Below, Appellee. No. 540, 1998. Supreme Court of Delaware. Submitted: May 18, 1999 Decided: July 19, 1999
Court Below: Superior Court of the State of Delaware, Cr.A. No. IN97-02-1735.
Before WALSH, HOLLAND and BERGER, Justices.
ORDER
This 19th day of July, 1999, upon consideration of the briefs of the parties, it appears to the Court that:
(1) Earl Exum, Jr., appeals from his conviction, following a jury trial, of possession with intent to deliver heroin. He argues that (i) the trial court erred in failing to give a requested Lolly[1] instruction; and (ii) the prosecutor’s improper comments during closing argument deprived Exum of a fair trial. We find no merit to either argument and affirm.
(2) On February 6, 1997, Wilmington Police Officer William Schmid and another officer were patrolling on Kirkwood Street, a well known area of drug activity. Schmid noticed Exum standing on the corner and not moving. After asking Exum to identify himself and state where he was going, Schmid patted Exum down and found $94 in his pocket. The officer released Exum and returned to his patrol car.
(3) About twenty minutes later, the two officers again noticed Exum on the same street. This time he was talking to another man, later identified as Jackie Brooks. When Exum and Brooks saw the patrol car, they separated and began walking away. Schmid saw Exum drop an item on the windowsill of an abandoned residence and continue walking. Schmid’s partner retrieved the package, which was a plastic bag containing eight smaller plastic bags filled with heroin. The officers arrested Exum and Brooks. They found a small bag of heroin on Brooks and $112.44 on Exum. At trial, a police expert testified that the street price for a bag of heroin at the time of the arrest was approximately $15, and that the absence of drug paraphernalia at the time of Exum’s arrest indicated an intent to sell, rather than recreational use.
(4) The plastic bag in which the drugs were found was never tested for fingerprints and it was not preserved against fingerprint contamination. Because the State failed to preserve this potential evidence, Exum asked the trial court to give a so-called Lolly instruction — that the jury should assume the missing fingerprint evidence would have been exculpatory. The trial court refused.
(5) In Lunnon v. State[2] , this Court reviewed the analysis required when considering a missing evidence instruction. First, the trial court should decide whether the requested evidence was discoverable; whether the State had a duty to preserve it; and whether the State breached that duty. If so, the court must balance “the degree of negligence or bad faith in the State’s conduct; the importance of the missing evidence; and the sufficiency of the other evidence presented at trial. . . .”[3]
(6) The parties agree that, had a fingerprint analysis been done, it would have been discoverable and the State would have been obligated to preserve that evidence. In balancing the State’s conduct against the prejudice to Exum, the trial court noted that fingerprints rarely are obtainable from plastic baggies and that there was no indication that the police acted in bad faith. The trial court then considered the other evidence against Exum. It noted that a police officer saw Exum drop a package, which was recovered moments later and found to contain heroin. In addition, although the trial court did not specifically rely on this evidence, Exum had $18 more cash at the time of his arrest than he had when stopped twenty minutes earlier, which was the approximate street value of the bag of heroin found on Brooks. From these facts, the trial court correctly concluded that the State was not negligent in failing to preserve possible fingerprints on the plastic bag; there was sufficient evidence to support the conviction; and a Lolly instruction was not required.
(7) Exum also complains about the prosecutor’s comment, during closing argument, that “[t]he role of a defense attorney . . . is to try to poke holes, make smoke. . . .” Exum argues that this comment improperly diverted the jury’s attention from its duty to analyze the evidence. We find that this isolated comment did not deprive Exum of a fair trial.
(8) In deciding whether an improper comment prejudicially affects a defendant, the court considers: “1) the closeness of the case, 2) the centrality of the issue, and 3) the steps taken to mitigate the effects of the error.”[4] Here, although the evidence was not overwhelming, this was not a close case given the eyewitness testimony and immediate recovery of the drugs. Second, the comment about the role of a defense attorney was not central to any issue in the case. Finally, to the extent that the comment was prejudicial, the general instruction that attorneys’ comments are not evidence, and that the attorneys’ personal opinions should be disregarded, was sufficient to mitigate the effects of the comment.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
s/ Carolyn Berger
Justice