State v. Mobley ( 2021 )


Menu:
  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE,                     )
    )
    v.                               )          ID No. 2002007105
    )
    TERRELL S. MOBLEY,                     )
    )
    Defendant.                       )
    Submitted: November 9, 2020
    Decided: November 19, 2021
    Upon Defendant Terrell S. Mobley’s Motion in Limine to Limit Expert Testimony
    Regarding Firearm/Toolmark Evidence
    DENIED.
    Upon Defendant Terrell S. Mobley’s Motion in Limine to Exclude Certain
    Convictions
    DENIED.
    OPINION AND ORDER
    Matthew B. Frawley, Esquire and Periann Doko, Esquire, Deputy Attorneys
    General, Department of Justice, 820 North French Street, Wilmington, Delaware
    19801, Attorneys for the State.
    Patrick J. Collins, Esquire, Collins & Associates, 8 East 13th Street, Wilmington,
    Delaware 19801, Attorney for Defendant Terrell S. Mobley.
    WHARTON, J.
    I.    INTRODUCTION
    Defendant Terrell S. Mobley (“Mobley”) is facing two first degree murder
    charges in separate indictments.1 Originally, the cases were specially assigned to
    two different judges, but upon the retirement of one of those judges, this judge was
    assigned to both. The older case, I.D. No. 1906003201, was assigned to the now
    retired judge, but was tried before this judge in August 2021. The jury was unable
    to reach a unanimous verdict and the Court declared a mistrial. Trial in that case
    now has been set for after trial in this case. There are two motions before the Court
    in this case, both submitted by Mobley: (1) a motion in limine to limit the opinion
    testimony of the State’s ballistic expert; and (2) a motion in limine to prohibit
    impeachment of Mobley with certain prior felony convictions under D.R.E. 609
    should he elect to testify. The first motion in limine seeks to limit the opinion
    testimony of the State’s firearm/toolmark expert to preclude the expert from
    testifying to what Mobley believes is an unwarranted degree of certainty about his
    conclusions. The second motion in limine seeks to prohibit impeachment of Mobley
    with two prior felony drug offenses — Drug Dealing in a Tier 4 Quantity and Tier 4
    Possession of a Controlled Substance – should he testify. Mobley did not testify in
    his first trial, and he has not told the Court that he will testify in this trial.
    1
    ID Nos. 1906003201 and 2002007105.
    2
    Nevertheless, because the option to testify remains open to him, the Court addresses
    the motion now so that Mobley may make an informed decision about testifying.
    The Court finds that the State has demonstrated by a preponderance of the
    evidence that the proposed expert opinion testimony is reliable.           Therefore,
    Mobley’s Motion in Limine to Limit Expert Testimony is DENIED. The Court finds
    that the probative value of Mobley’s prior felony convictions outweighs their
    prejudicial effect and are admissible under D.R.E. 609(a). Therefore, Mobley’s
    Motion in Limine to Exclude Certain Prior Convictions is DENIED.
    II.   FACTUAL AND PROCEDURAL BACKGROUND
    On April 3, 2018, the Wilmington Police Department responded to the 1400
    block of W. 3rd Street for reports of shots fired.2 Officers located the victim, Kevis
    Tyler (“Tyler”), suffering from gunshot wounds.3          Tyler was transported to
    Christiana Hospital where he died from his injuries — nine gunshot wounds.4
    Investigators recovered 28 spent 9mm shell casings as well as bullet fragments from
    the scene.5 This evidence was sent to the Delaware State Police Forensic Firearms
    Service Unit for analysis.6 Ballistics expert James Cadigan (“Cadigan”) concluded
    2
    State’s Resp. to Def.’s Mot. to Exclude Certain Prior Convictions, at 1, D.I. 17.
    3
    Id.
    4
    Id.
    5
    State’s Resp. to Def.’s Mot. to Limit Expert Testimony, at 1, D.I. 18.
    6
    Id.
    3
    that all 28 casings were fired from the same firearm.7 Later, a firearm was recovered
    in an unrelated investigation.8 Cadigan concluded that gun fired all 28 casings.9
    Witness interviews pointed the investigation to Mobley.10 On February 17, 2020,
    Mobley was indicted on the charges of Murder First Degree, Reckless Endangering
    First Degree, Possession of a Firearm During the Commission of a Felony (two
    counts), Possession of a Firearm by a Person Prohibited, and Possession of
    Ammunition by a Person Prohibited.11 The latter two charges were severed on
    Mobley’s motion.12
    On September 30, 2020, Mobley filed the motions in limine.13 In support of
    the motion to limit expert testimony, Mobley argues that the State’s expert would
    mislead the jury by “testifying with any degree of certainty.”14 As to the motion to
    exclude prior convictions, Mobley concedes that his prior Burglary Second Degree
    conviction is admissible as proper impeachment under D.R.E. 609 as a crime of
    7
    Id. at 2.
    8
    Id.
    9
    Id.
    10
    Id.
    11
    Indictment, D.I. 1.
    12
    D.I. 26.
    13
    Def.’s Mot. to Limit Expert Testimony, D.I. 14; Def.’s Mot. to Exclude Certain
    Prior Convictions, D.I. 15.
    14
    Def.’s Mot. to Limit Expert Testimony, D.I. 14.
    4
    dishonesty or false statement.15 But, he argues that his two drug-related felony
    convictions should be excluded as unfairly prejudicial.16
    III.   THE PARTIES’ CONTENTIONS
    A.     Motion in Limine to Limit Expert Testimony
    Mobley argues that the Superior Court, in State v. Gibbs,17 already has held
    that firearm/toolmark examiners’ opinion testimony must be limited with respect to
    the degree of certainty of the match/identification.18 He argues this Court should
    follow Gibbs and other subsequent cases which allow the expert to state his
    methodology and opinion, but not to any degree of certainty.19
    The State argues that it has established repeatedly that the firearms and
    toolmark examination methodology satisfies all requirements for admissibility under
    D.R.E. 702.20 The State contends that Defendant can explore any possible issues
    with the expert’s degree of certainty through cross-examination, leaving it to the jury
    to determine what weight to give his opinion.21
    15
    Def.’s Mot. to Exclude Certain Prior Convictions, at 3, D.I. 16.
    16
    Id.
    17
    
    2019 WL 6709058
     (Del. Super. Ct. Dec. 9, 2019).
    18
    Def.’s Mot. to Limit Expert Testimony, D.I. 14.
    19
    
    Id. 20
    Sate’s Resp to Def.’s Mot. to Limit Expert Testimony, D.I. 18.
    21
    
    Id. at 7
    .
    5
    B. Motion in Limine to Exclude Certain Prior Convictions,
    Mobley argues that the drug convictions have minimal probative value on the
    issue of his credibility.22 In his view, this lack of probative value, coupled with a
    danger of unfair prejudice, weighs in favor of excluding those convictions, if he
    elects to testify in his own behalf.23 Mobley successfully advanced the same
    argument in his other murder case.24 Despite the favorable ruling, Mobley did not
    testify in that case. Nonetheless, he argues that holding is correct, and those
    convictions should be excluded in the trial of this case as well.
    The State argues that Mobley’s convictions have probative value, especially
    considering their recency.25 Further, the State argues that Mobley’s history as a
    career offender is probative, and the drug convictions allow impeachment of his
    credibility without venturing into Mobley’s extensive “career as a felon.”26 The
    State contends that, under the balancing test set forth in D.R.E. 609(a)(1), the
    relevant factors suggest that Mobley’s convictions are highly probative of his
    credibility, and that the probative value outweighs any prejudicial effect.27
    22
    Def.’s Mot. to Exclude Certain Prior Convictions, at 5, D.I. 16
    23
    
    Id. 24
    State v. Mobley, 
    2020 WL 2572738
     (Del. Super. CT. May 21, 2010).
    25
    State’s Resp. to Def.’s Mot. to Exclude Certain Prior Convictions, at 8, D.I. 17.
    26
    
    Id. at 7
    .
    27
    
    Id. at 11-12
    .
    6
    IV.    DISCUSSION
    A.     Motion in Limine to Exclude Expert Testimony Regarding
    Firearm/Toolmark Evidence
    D.R.E 702 requires “the proffered testimony to provide relevant and reliable
    principles and terminology. This rule does not require that the conclusions derived
    from those principles and methods be scientifically valid. [T]he trial judge must
    determine that the expert ‘has a reliable basis in the knowledge and experience of
    the [relevant] discipline.’”28 The party seeking to introduce expert testimony bears
    the burden of establishing its admissibility by a preponderance of the evidence.29
    “[W]here the State’s expert testimony is based on methodology previously held
    reliable under Daubert, the State has demonstrated by a preponderance of the
    evidence that the proposed expert testimony is reliable.”30
    The methodology of the State’s ballistics expert witness has been held reliable
    previously under Daubert.31 However, Mobley suggests that current trends in case
    law point to limiting expert testimony in the area the certainty of the expert’s
    opinions.32 For example, the Court in Gibbs limited the State’s ballistics expert’s
    28
    McNally v. State, 
    980 A.2d 364
     (Del. 2009).
    29
    Bowen v. E.I. DuPont de Nemours & Co. Inc., 
    906 A.2d 787
    , 795 (Del. 2006).
    30
    State v. Gibbs, 
    2019 WL 6709058
    , at *3 (Del. Super. Ct. Dec. 9, 2019) (citing
    McNally, 
    980 A.2d at 370
    )).
    31
    State v. Phillips, 
    2015 WL 5168253
    , at *5-7 (Del. Super. Ct. Sept. 2, 2015)
    (quoting State v. McMullen, 
    900 A.2d 103
    , 114 (Del. Super. Ct. 2006)).
    32
    Gibbs, 
    2019 WL 6709058
    , at *4 n.43 & n.44 (collecting cases).
    7
    testimony where “‘the process by which a firearms examiner declares a ‘match’
    remains inherently subjective,’ and where the State agrees that the expert is not to
    testify with ‘100%’ certainty...”33 Unlike in Gibbs, the State has not agreed to limit
    its expert’s testimony in this case. Because of the State’s agreement, the degree of
    the expert’s certainty in his opinion was not contested in Gibbs, diminishing Gibbs’
    authoritativeness in this case when the issue is controverted.
    Neither Daubert, nor Phillips concerned themselves with the correctness or
    degree of certainty with which expert witnesses held their opinions. Instead, they
    were concerned with the reasonableness of the methodology by which the experts
    reached their opinions. Evaluating the weight to be given expert opinions, especially
    competing opinions, is manifestly a jury function. That is the reason why courts are
    concerned with the reliability of methodology rather than result in performing their
    gatekeeper function. The degree of certainty with which an expert holds an opinion
    may be warranted or not, but it is for the cross-examiner to exploit any
    overconfidence the expert might have in that opinion, and for the jury to adjudicate
    what weight to give it. The Court finds that the State has demonstrated by a
    preponderance of the evidence that the proposed expert testimony is reliable.
    Therefore, the Motion in Limine to Limit Expert Testimony is DENIED.
    33
    
    Id. 8
    B.      Motion In Limine to Exclude Certain Prior Convictions
    D.R.E 609(a) provides:
    For the purpose of attacking the credibility of a witness,
    evidence that the witness has been convicted of a crime
    must be admitted but only if the crime (1) constituted a
    felony under the law under which the witness was
    convicted, and the court determines that the probative
    value of admitting this evidence outweighs its prejudicial
    effect or (2) involved dishonesty or false statement,
    regardless of the punishment.”
    The State seeks to impeach Mobley with three prior felony convictions should
    he testify.   The parties agree that his Burglary Second Degree conviction is
    admissible as impeachment evidence. That conviction occurred in 2005, but despite
    the 10-year time limit of D.R.E. 609(b), is admissible because Mobley was released
    from confinement on that charge less than 10 years ago.34 The other two felony
    convictions the State seeks to admit as impeachment are Drug Dealing and Tier 4
    Possession, both in 2016. Thus, the Court must balance whether the probative value
    of those convictions outweighs their prejudicial effect.35 If it concludes that their
    probative value does outweigh their prejudicial effect, the evidence “must be
    admitted.”36 But, only “the type of crime and the date and place of the convictions”
    are admissible “without releasing the prejudicial details of the events.”37 “[T]he
    34
    D.R.E. 609(b).
    35
    Gregory v. State, 
    616 A.2d 1198
    , 1203-04 (Del. 1992).
    36
    D.R.E. 609(a).
    37
    Archie v. State, 
    721 A.2d 924
    , 928 (Del. 1998).
    9
    cross-examination should be restricted to the fact of the convictions, and the
    circumstances and details of the prior criminal conduct should not be explored by
    the prosecutors.”38
    Several factors can be considered when deciding the probative value of prior
    convictions: the recency of the conviction, where the crime falls on the scale of
    veracity-related crimes, and whether the crime was substantially different from the
    instant prosecution.39 The Court in United States v. Hayes noted that a conviction
    for “mere narcotics possession” would have less probative value than either selling
    or smuggling.40 In this instance, Mobley both sold and possessed narcotics, which
    still are relatively low on the scale of veracity-related crimes.41 However, the
    convictions are relatively recent—both occurring in 2016—and they are
    substantially different in character from the crimes charged here.42
    D.R.E. 609 recognizes that the fact of a felony conviction, no matter what the
    charge, has inherent impeachment value. If the State were limited to impeaching
    Mobley with the 2005 burglary conviction, the jury would be presented with a
    distorted view of his testimonial credibility, since it might reasonably conclude that
    38
    
    Id. 39
    U.S. v. Hayes, 
    553 F.2d 824
    , 828 (2d. Cir. 1977).
    40
    
    Id. at 829
     (citing United States v. Ortiz, 
    553 F.2d 782
     (2d Cir. 1977)).
    41
    See 
    id. 42
    Id.
    10
    it should give little impeaching weight to a conviction occurring a decade and a half
    ago. The relatively recent convictions present the jury with a more comprehensive
    basis to assess Mobley’s credibility. Mobley’s recent past convictions for narcotics
    offenses do not create a substantial risk that the jury would draw the forbidden
    character inference that Mobley acted in conformity with a character predisposed to
    murder.43 The crimes are substantially different. Thus, the Court concludes that the
    probative value of Mobley’s two felony drug convictions outweighs their prejudicial
    effect. The Motion in Limine to Exclude Certain Prior Convictions is DENIED.44
    THEREFORE, Defendant Terrell Mobley’s Motion in Limine to Limit
    Expert Testimony Regarding Firearm/Toolmark Evidence is DENIED.
    43
    
    Id.
     (Finding that “[t]he conviction was for a crime substantially different from the
    instant prosecution, so that there was not here the prejudice to appellant that
    inevitably results from the introduction of a conviction for the same crime as that for
    which he is on trial.”)
    44
    The Court appreciates that it has reached a different conclusion than the judge in
    Mobley’s other murder case. State v. Mobley, 
    2020 WL 2572738
     (Del. Super., May
    21, 2020). In addition to weighing the probative value and prejudicial effect
    differently, the Court reaches a different conclusion for two other reasons. First, it
    appears the judge in that case applied the standard for balancing admission of
    convictions older than 10 years under D.R.E. 609(b) which requires the probative
    value of admission be supported by “specific facts and circumstance.” 
    Id., at *1
    .
    D.R.E. 609(a) contains no such requirement. Second, and more importantly, her
    determination that drug convictions generally are “highly prejudicial when offered
    to impeach the veracity of a witness whose innocence or guilt is being determined
    by the jury,” was based on Gregory v. State, 
    616 A.2d 1198
    , 1203 (Del. 1992). 
    Id.
    In Gregory, the impeaching drug convictions were offered to impeach the defendant
    who was on trial for drug charges. Obviously, the prejudice was much greater in
    that case because it had character and propensity implications under D.R.E. 404(b)
    not present here. See, Hines v. State, 
    248 A. 2d 92
     (Del. 2021).
    11
    Defendant Terrell Mobley’s Motion in Limine to Exclude Certain Prior
    Convictions is DENIED.
    IT IS SO ORDERED.
    /s/ Ferris W. Wharton
    Ferris W. Wharton, J.
    12