No Deberry/Lolly Instruction Without a Duty to Collect Third-Party Doorbell Footage; Motions in Limine Cannot Substitute for Dispositive Motions

Introduction

In Boulden v. State (Del. May 7, 2026), Ronald Boulden appealed Superior Court convictions for Aggravated Menacing and Terroristic Threatening arising from a neighborhood dispute in New Castle, Delaware. The central appellate issue was evidentiary: whether the State’s failure to obtain and preserve a neighbor’s doorbell-camera video required either (i) dismissal of the prosecution, or (ii) a Deberry/Lolly “missing evidence” jury instruction.

The Delaware Supreme Court, sitting en banc, affirmed. It held that (1) a request to dismiss cannot properly be raised through a motion in limine, and (2) a missing-evidence instruction was not warranted because the police had no duty to collect the doorbell footage where they had no reason, at the time, to believe it might be exculpatory—particularly given the police determination that the relevant clip contained audio only (and that audio was captured on body-worn camera).

Summary of the Opinion

The Court’s decision rests on two determinations:

  1. Procedure: Although the defense styled its filing as a “motion in limine” seeking dismissal, dismissal is a dispositive remedy that must be pursued via an appropriate dispositive motion; the trial court therefore did not err in denying the dismissal request as procedurally improper.
  2. Merits (missing evidence): A Deberry/Lolly instruction requires that the police had a duty to collect or preserve the evidence, which exists only if the police had reason at the time to believe the evidence might be exculpatory. Here, officers reviewed the doorbell clips, identified one clip as material, determined it did not capture video of the altercation (only audio), and recorded the audible portion on bodycam. Accordingly, no duty to collect additional doorbell “video evidence” arose and no missing-evidence instruction was required.

Analysis

Precedents Cited

  • Lolly v. State, 611 A.2d 956 (Del. 19 92)
    Role in the Opinion: The defense invoked Lolly as the basis for a missing-evidence instruction. The Supreme Court treated the request as a classic Deberry/Lolly claim: when the State fails to collect or preserve evidence material to the defense, a jury may be instructed to infer the missing evidence would have tended to exculpate the defendant—but only if a duty to collect/preserve existed.
  • Deberry v. State, 457 A.2d 744 (Del. 1983)
    Role in the Opinion: Alongside Lolly, Deberry supplies the doctrinal framework for remedies when evidence is not preserved. The Court reaffirmed that the instruction is not automatic; it is conditioned on a threshold duty and the circumstances of the failure.
  • Coleman v. State, 289 A.3d 619 (Del. 2023)
    Role in the Opinion: The Court relied on Coleman for two points: (i) the standard of review (de novo) for denial of a requested Deberry/Lolly instruction, and (ii) Coleman’s detailed discussion of how Lolly and Deberry operate in practice, reinforcing that the duty-to-collect requirement is a gatekeeping step.
  • Powell v. State, 49 A.3d 1090 (Del. 2012) (citing Weber v. State, 38 A.3d 271 (Del. 2012))
    Role in the Opinion: Powell (via Weber) provides the key formulation: a duty to collect exists only where “the police must have had a reason, at that time, to believe the evidence might be exculpatory.” The Court used this standard to reject the premise that police must routinely secure third-party doorbell footage in “every circumstance.”
  • Baynum v. State, 133 A.3d 963 (Del. 2016)
    Role in the Opinion: Cited with Coleman for the de novo standard of review regarding denial of a requested Deberry/Lolly instruction.
  • Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001)
    Role in the Opinion: Although a civil case, Hercules is used for a procedural principle that translates across contexts: appellate courts review de novo a trial court’s characterization of a “motion in limine” as actually dispositive. Here, it supported the trial court’s decision to treat the dismissal request as procedurally improper.
  • Erhart v. DirecTV, Inc., 2012 WL 2367426 (Del. Super. June 20, 2012), aff'd 53 A.3d 301, 2012 WL 4137289 (Del. Sep. 19, 2012) (TABLE)
    Role in the Opinion: Cited for the caution that litigants sometimes misuse motions in limine to seek dispositive rulings after dispositive-motion deadlines have passed. The citation underscores that the label “in limine” does not convert a dispositive request into a proper evidentiary motion.

Legal Reasoning

1) The dismissal request failed on procedural grounds

The Court distinguished between:

  • Motions in limine, which are typically pretrial evidentiary rulings about admissibility, scope, or handling of evidence at trial; and
  • Dispositive motions, which seek to terminate charges or claims (e.g., dismissal) and are governed by different procedural rules and timing.

Because Boulden sought dismissal through a motion in limine, the trial court “properly confined its analysis” to the missing-evidence instruction question and could deny dismissal “in summary fashion” as procedurally improper. The Supreme Court endorsed that approach, reinforcing that substantive remedies must be pursued through proper procedural vehicles.

2) No Deberry/Lolly instruction because there was no duty to collect the “missing” video

The Court reaffirmed the threshold requirement: a missing-evidence instruction presupposes that the police had a duty to collect or preserve the evidence. Under Powell v. State (citing Weber v. State), that duty arises only if, at the time of the investigation, the police had reason to believe the evidence might be exculpatory.

Applying that standard to the facts, the Court emphasized:

  • The neighbor showed officers two doorbell-camera clips; officers identified only one as corresponding to the relevant time.
  • Officers determined that clip did not capture video of the altercation—only audio.
  • Officers recorded the audio by replaying the clip and capturing it on Corporal Davis’s bodycam.

From these facts, the Court reasoned that the doorbell camera did not contain video evidence that “might be exculpatory” and, in any event, the material audible portion was preserved via bodycam. Because the predicate duty was absent, the Court concluded: “No missing evidence instruction was required.”

Impact

  • Clarifies limits on police obligations regarding third-party digital footage: The Order reinforces that Delaware’s missing-evidence doctrine is not a general mandate to seize or copy all potentially relevant privately held recordings (e.g., doorbell cameras). The duty turns on what police reasonably understood at the time about potential exculpatory value.
  • Encourages litigants to use correct procedural tools: By affirming the trial court’s refusal to entertain dismissal via motion in limine, the Court signals that parties should not use evidentiary motions to obtain late dispositive rulings.
  • Practical guidance for investigations and trial courts: The decision implicitly approves a common field practice—capturing the substance of third-party media (here, doorbell audio) through body-worn camera recording when the original is not taken into police custody—at least where the allegedly “missing” component (here, video) is not shown to be plausibly exculpatory.

Complex Concepts Simplified

Deberry/Lolly missing evidence instruction
A jury instruction that permits (and effectively prompts) jurors to infer that evidence the State failed to collect or preserve would have tended to help the defense. It is a remedial tool aimed at fairness when the State’s failure deprives the defendant of material evidence—but only when the police had a duty to collect/preserve it.
Duty to collect (or preserve) evidence
Not every investigative omission triggers a remedy. Under Delaware law as applied here, the duty exists only if police had reason, at the time, to believe the evidence might be exculpatory. If police could not reasonably see potential exculpatory value, the instruction is not warranted.
Motion in limine vs. dispositive motion
A motion in limine generally addresses how evidence will be handled at trial. A dispositive motion seeks to end the case (e.g., dismissal). Courts may reject attempts to use motions in limine as substitutes for untimely or improper dispositive motions.

Conclusion

Boulden v. State reinforces two practical rules in Delaware criminal litigation. First, defendants cannot obtain dismissal by packaging a dispositive request as a motion in limine. Second, a Deberry/Lolly missing-evidence instruction hinges on a threshold duty to collect or preserve evidence; that duty arises only when police had reason, at the time, to believe the evidence might be exculpatory. Where officers reasonably determine that third-party doorbell footage contains no exculpatory video and preserve the material audio through bodycam recording, the instruction is not required.