State v. J W
| Decision Date | 30 March 2021 |
| Docket Number | Case No.: 200106973 |
| Parties | Re: State of Delaware v. J W |
| Court | Delaware Family Court |
FELICE GLENNON KERR JUDGE
Kelly Sheridan, Esquire, DAG
820 N. French Street
Wilmington, DE 19801
Lauren Mahler, Esquire
500 N. King Street. Suite 2400
Dear Ms. Sheridan and Ms. Mahler:
Respondent J W ("W ") filed a Motion seeking to either dismiss the pending charges in the above-referenced case number or to exclude eight (8) photographs which the State did not provide in discovery until March 10, 2021, five days before the scheduled hearing on March 15, 2021. The Court held a conference call with the parties on March 14, 2021 to discuss the case and any potential issues with the trial moving forward as there are witnesses involved and the Court is still subject to directives from the Delaware Supreme Court and policies of the Delaware Family Court regarding in person hearings during COVID-19. W , thorough his counsel, advised the Court that the Motion could be modified because at least one of the questioned photographs had been provided in an earlier batch of photographs sent to W . The Court and counsel discussed the Motion and also some issues regarding witnesses including an individual who obtained video evidence through a "Ring" doorbell camera. The State explained that dozens of pictures were sent to W through earlier discovery responses and that the State would need time to go through all the photographs to confirm which pictures were sent and which were not in Order to respond. Given that the one witness was not willing to attend Court in person due to concerns about COVID and as W was concerned about the ability to assess this witness' credibility, and the need to review the photographs, the Court continued the hearing. The Court received the Answer to the Motion and reached out to both counsel to set up a conference call to discuss rescheduling the hearing.
In the Response to the Motion the State notes that there were two photographs of the eight that had been sent in discovery previously. Two of the pictures depict Respondent's shoes which are alleged to have a dry "brush-like" plant material on them. W was provided with a copy of the police report which indicates that W had "monkey ball" residue on his shoes. The other four photographs depict the disposal site where the firearm was alleged to be located. According to the State, the four additional site photographs are similar to 65 other site photographs previously provided. The site photographs show burr-like plants growing out of the ground. The photographs of the shoes shows a dry plant-like substance attached to the shoes. Since the police report describes the shoes as being covered in "monkey ball' residue and describes the area where the site photographs were taken as having "overgrown weeds in the rear yard, including 'monkey balls'." As W was aware that the "monkey ball" residue on the shoes was referenced in the police report and as W had the photographs of the site with what the police were calling "monkey balls"1, the Court does not find that W would be prejudiced by the delay in providing the photographs, particularly since the Court has not yet rescheduled the hearing and there was the additional issue There is nothing to indicate that the failure to send the photographs was intentional and several comparable photographs were forwarded.
The appropriate sanction for a discovery violation is addressed to the sound discretion of the trial judge, after weighing the particular facts and circumstances. The Court has broad discretion to fashion the appropriate sanction.2 In Delaware, the court apply a three-prong analysis which includes: (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.3 There are various remedies available when there has been a discovery violation including granting a...
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