Deberry v. State

• Decision Date: 27 January 1983
• Citation: 457 A.2d 744
• Parties: Tony T. DEBERRY, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 744

457 A.2d 744

Tony T. DEBERRY, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Oct. 19, 1982.

Decided Jan. 27, 1983.

Upon appeal from Superior Court. Reversed and remanded.

Raymond J. Otlowski, Asst. Public Defender, Wilmington, for appellant.

James B. Ropp, Deputy Atty. Gen., Wilmington, for appellee.

Before QUILLEN, HORSEY and MOORE, JJ.

MOORE, Justice:

The defendant, Tony T. Deberry, challenges his convictions in the Superior Court for first degree rape (11 Del.C. § 764), first degree kidnapping (11 Del.C. § 783A), and possession of a deadly weapon during the commission of a felony (11 Del.C. § 1447). He has been sentenced to life imprisonment.

Deberry first contends that reversible error occurred when the State did not produce or account for potentially exculpatory evidence. We agree and reverse since this deprived Deberry of evidence to which he was entitled under Superior Court Criminal Rule 16(b) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also argues that the victim's out-of-court identification should have been suppressed, but in our opinion the identification evidence was properly admitted. Because the kidnapping and weapons charges necessarily depend upon the rape conviction and cannot stand independently of it, we reverse all of the convictions and remand the case for a new trial, subject to certain conditions.

I.

A.

The alleged victim, Beverly, and Deberry were both employed by Delaware Park racetrack during the summer of 1980. The State's evidence was that on August 14, 1980, Beverly, her boyfriend, Mark, and Deberry had been attending a party which began about 12:30 or 1:00 p.m. on the track premises. People were drinking all afternoon and taking drugs. As the party went on into the night, Mark became involved in several fights, and on one occasion Deberry helped break up an altercation. Afterwards Deberry invited Beverly and Mark to his room to calm down from these incidents. There, they continued to drink and take drugs. According to Beverly, Deberry tried to persuade her to spend the night with him. Soon after Deberry's proposition, Beverly went to another bunkhouse to sleep with two other men, one of whom Mark had fought earlier. Mark accompanied her but decided to sleep outside because of his earlier fight with one of the occupants.

Beverly claims she was awakened by Deberry shortly after falling asleep. She told him to leave, and he did so. Sometime later she was again awakened by Deberry, who was attempting to pull her pants off. This time Deberry put a knife to Beverly's throat. When she saw the knife, she supposedly grabbed for it and cut several fingers.

Beverly and Deberry then went about one hundred yards from the bunkhouse to a spot behind a barn. He threatened to kill her if she screamed, and he ordered her to undress. After partially undressing, Deberry had intercourse with her. They spent about thirty minutes behind the barn when Deberry began to fear discovery. He ordered Beverly to dress and led her at knife point to a more secluded area outside the track enclosure. To reach this location, they had to pass a guard station, where a guard observed two people leave the track. When they reached the second spot, Deberry made Beverly undress, and for an hour or more they had intercourse.

The two then returned to the track complex. The guard at the gate asked for and examined their employee identification cards. When they separated, Deberry warned Beverly not to mention the incident. Returning to her boyfriend, Beverly woke him to take her to the hospital to have her hand treated (which later required sutures). On the way out of the track complex, she told him that Deberry had raped her. The police were called and arrived about ten minutes later. Beverly explained what happened and led them immediately to Deberry's bunkhouse. An officer went inside and brought Deberry to the door. Beverly was sitting in a police car about 20-30 feet from Deberry, and the car's headlights were aimed toward the door in which Deberry stood. A policeman asked her if Deberry was the assailant, and she answered without hesitation that he was.

Deberry's version of the facts was that after accompanying Beverly and Mark to the bunkhouse where she wanted to sleep, both Deberry and Mark bedded down outside her door. However, the ground was damp, and after a few minutes he returned to his own bunkhouse where he promptly went to sleep. The next thing he knew was when he was awakened by the police. He has consistently denied any participation in the alleged attack on Beverly.

B.

In a pre-trial discovery request, the defense asked for the following:

3. A list of all books, papers, documents or tangible objects in the possession of the State pursuant to its investigation of the above-captioned case.

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5. All information and materials in the possession of the State which fall within the scope of Brady v. Maryland ... and its progeny as to the defendant in the above-captioned case.

The State replied that there were no objects in its possession, and that there was no Brady material.

Immediately before the start of Deberry's first trial (which resulted in a mistrial), the defense inquired about production of the clothes Deberry wore during the alleged attack. The clothing was of obvious relevance since the likelihood of Beverly's blood being found on it was very strong. She and the defendant purportedly had intercourse in two places for 1 1/2 hours or longer; she claimed to have been cut when Deberry awoke her; and the injury was severe enough to require stitches several hours later. Under such circumstances the defense argued that Deberry could not avoid getting Beverly's blood on his clothes if he in fact was her assailant. Counsel asked the court to determine if the clothing was available, and he indicated that the defendant would seek dismissal of the charges if these items were not produced.

In response to the defense allegation that the presence or absence of blood on Deberry's clothing was material to the case, the prosecutor stated that he was unaware of any blood found on Deberry's clothes. The trial judge observed that if the presence of blood was at issue, testimony that there was no blood on the clothing would be an acceptable substitute for the actual clothing. However, the judge's ultimate ruling went only to the scope of testimony about the injury on Beverly's hand, rather than the potentially exculpatory effect of the absence of blood on Deberry's clothes. ¹ The prosecutor was also directed to determine if the clothing was available and to so advise the defense. The clothing, however, was not found.

At the second trial, one state police detective testified, consistent with his testimony at Deberry's first trial, that a detective assigned to the evidence unit took Deberry's clothing and the victim's clothing. The evidence unit detective, however, testified that Deberry's clothing had not been seized and had not been sent to the FBI for analysis. Furthermore, he did not know what had happened to those items. Deberry testified that the police took all of his clothing from his room. He never returned there, having been incarcerated since his arrest. Thus, he states that the police have had full control over his personal effects since that night.

The forensic evidence introduced at trial consisted of results of blood and hair comparisons. From the victim's jeans, a black head hair of Negroid origin was recovered. Though the majority of structural characteristics resembled those of Deberry's hair, there were sufficient disparities to prevent the FBI analyst from reaching any conclusion as to its origin. In the combings obtained from Deberry's pubic region, a hair was found that was dissimilar to that of the victim, and no other hair was recovered. While there were blood and semen stains on Beverly's clothes, results of blood typing tests were inconclusive. There was no evidence about blood on the knife allegedly used by Deberry in the attack. The doctor who examined the victim testified that there were no signs of forcible intercourse, but the absence of trauma would be consistent with either non-consensual or consensual intercourse.

II.

A.

Deberry contends that the State was required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), to produce his clothing for examination. In light of the inconclusive results of the forensic tests, Deberry's clothes, on the basis of possible stains and hairs, could have disputed the victim's story. Furthermore, the absence of stains and hairs on his clothing would have been material to the issue of guilt since the evidence could have created a reasonable doubt not otherwise present.

In response, the State argues that the duty under Brady and Agurs attaches only when it actually possesses or has access to the requested material. Boyer v. State, Del.Supr., 436 A.2d 1118, 1126-27 (1981). Since the evidence at trial was unclear as to the State's possession of the clothing, so the argument goes, there was no duty to produce it. The State further contends, relying on Agurs, 427 U.S. at 106-07, 96 S.Ct. at 2398-2399, that in the context of the defense's general request for Brady material, the clothing was not so obviously exculpatory as to trigger the State's duty to disclose it. Finally, according to the State, the absence of blood, semen, or hair on the clothes would not create a reasonable doubt that did not otherwise exist as to Deberry's guilt, and the clothing was therefore immaterial evidence by the standards of Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-2402.

The parties have argued this case along the lines suggested by Brady and Agurs, i.e., was the evidence favorable to the defense, and was the evidence material? However, ...