State v. Mobley ( 2023 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
FERRIS W. WHARTON LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE WILMINGTON, DE 19801-3733
PHONE: (302) 255-0657
FAX: (302) 255-2273
January 3, 2023
Matthew B. Frawley, Esquire Patrick J. Collins, Esquire
Deputy Attorney General Collins & Price
Department of Justice 8 East 13th Street
820 N. French St. Wilmington, DE 19801
Wilmington, DE 19801
Re: State v. Terrell Mobley
ID# 1906003128A/B
Upon Defendant’s Motion to Compel
DENIED.
Upon Defendant’s Motion for Partial Reargument
DENIED.
Dear Counsel:
Trial in the above case ended in a mistrial when the jury was unable to arrive
at a unanimous verdict. After trial, the Defendant moved to compel production of
Brady material related to Cpl. Leonard Moses of the Wilmington Police Department
(“WPD”). Of the three police officers involved in the Defendant’s arrest, Cpl. Moses
was the only one who testified at trial. The Court sent a letter to counsel on
December 16, 2022 addressing issues raised by the Motion, but not resolving it.
Specifically, it directed the State to review Cpl. Moses’ personnel for Brady material
and report the result of that review to the Court and counsel.
The Defendant then moved for partial reargument of what he perceived to be
the Court’s ruling in that letter regarding the Motion to Compel. The Court wrote
counsel on December 22nd stating that it was not the Court’s intention to rule on the
Motion in its letter of December 16th. Rather, by ordering the State to review Cpl.
Moses’ personnel file, the Court was seeking further information that it felt might
be helpful in deciding the Motion to Compel. To that end, the Court stated that it
would take such action as it deemed appropriate following the State’s report.
In the Court’s letter of December 22nd, it directed the State to review its
response to the Court’s December 16th letter and its response to the Motion to
Compel in light of the Defendant’s belief that the State was misunderstanding Brady.
The State responded on December 28th and reports that Cpl. Moses’ personnel file
does not contain any material consistent with Mobley’s position that Cpl. Moses’
conduct in State v. Daryus Whittle1 is Brady material. The State also reiterates its
representation in its response to the Motion to Compel that it has conducted a review
and was unable to discover any case where Cpl. Moses swore out an affidavit and/or
testified in a matter which was or later determined to be false, deceptive, or
misleading.
The Motion to Compel alleges that Cpl. Moses provided false information in
the probable cause affidavit and testified falsely at the preliminary hearing in
Whittle. The Defendant seeks to have the Court order the State to produce: (1) all
communications of any kind between the prosecutor in Whittle or anyone at the
Department of Justice (“DOJ”) and the Wilmington Police after the trial judge in
Whittle expressed his “hope” that the prosecutor would bring Cpl. Moses’ testimony
to the attention of his superiors;2 (2) all materials and communications from the WPD
with Cpl. Moses after the prosecutor made his report; (3) all communications within
the DOJ regarding Cpl. Moses’ affidavit and testimony specifically and Cpl. Moses’
credibility generally; and (4) disclosure of any other case in which Cpl. Moses has
1
ID No. 1607000578.
2
The Court noted in its letter on December 16th that the Motion states that the
prosecutor was “ordered” to report Cpl. Moses to his superiors, but the actual
language the trial judge used was, “…and because of the circumstances of the Court
of Common Pleas testimony which, by the way …, I hope as an officer of this court
you are going to bring to the attention of that officer’s superiors.) Prelim. Hrg. Tr.
(Feb. 7, 2017) at 61:15-18, Ex. C., Mot. to Compel. In his Motion for Partial
Reargument, the Defendant attempts to explain to the Court how a Delaware lawyer
would understand the trial court’s comment. That explanation nis unnecessary.
What the Court was doing in its letter was accurately quoting the trial judge, which
the Motion to Compel did not, in order to properly represent the Whittle record.
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sworn to affidavits and/or testified in a false, deceptive, or misleading manner.
The State opposes the motion. It takes the position that a review of the record
in Whittle does not support the claim that Cpl. Moses either swore falsely in the
affidavit of probable cause or testified falsely in the preliminary hearing. It
represents that after diligent inquiry, it is unaware of any other cases in which Cpl.
Moses swore to affidavits and/or testified in a manner which was or which was later
determined to be false, deceptive, or misleading. The State reaffirmed this
representation in its letter dated December 28th. As to internal communications or
materials within the DOJ and the WPD the State deems this a request for privileged
material for which the Defendant has not established the necessary factual predicate
for disclosure under Snowden v. State.3
In its letter to counsel, the Court observed that the Defendant made no effort
to justify his specific requests for the Court to compel production of communications
between the Whittle prosecutor and Cpl. Moses’ superiors at WPD, communications
between WPD and Cpl. Moses related to any report to WPD by the Whittle
prosecutor, or communications within the DOJ regarding Cpl. Moses’ credibility.
Additionally, after discussing Snowden, the Court ordered the State to review Cpl.
Moses’ personnel file and report the results to the Court and defense counsel. The
defendant does not seek reargument of this direction to the State, acknowledging
that it addresses his request for actions and communications between WPD and Cpl.
Moses including any disciplinary actions, reports, and communications of any kind.
It now appears that only two of the items the Defendant seeks to compel the
State to produce remain in dispute. They are communications between the trial
prosecutor in Whittle and anyone else at DOJ and WPD regarding Cpl. Moses’
conduct in that trial and communications within the DOJ regarding Cpl. Moses’
credibility both in connection with Whittle and generally.
As mentioned, the Court noted in its December 16th letter that the Defendant
made no effort in his Motion to Compel to justify these specific requests. In his
Motion for Partial Reargument, the Defendant argues that his requests were very
specific - indeed, they were as specific as possible.
The Defendant misses the point of the Court’s observation. The Court stated
3
672 A.2d 1017, 1023-24 (Del. 1996).
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that the Defendant made no effort to justify his specific requests and cited no
authority for production of the items he sought in particular. The Court did not say
the requests lacked specificity. It said the Motion lacked any rationale why those
particular items should be produced. In other words, the Motion did not explain
why peripheral, secondary evidence in the form of communications between others
in the DOJ and WPD about what Cpl. Moses had said or written in Whittle were
material when the primary impeaching evidence – the affidavit and testimony - was
already in the Defendant’s possession.
In his Motion for Partial Reargument, the Defendant attempts to make that
effort. He argues that “Moses’ conduct in Whittle is classic impeachment evidence.”
Fair enough. But the Defendant already possesses that “classic impeachment
evidence.” He knows about all of Cpl. Moses’ conduct in Whittle. The Defendant
also states that defense counsel argued in the Motion to Compel that “the materials
once produced would be used to impeach Moses at the retrial.” No, he did not.
Defense counsel made that argument about the Whittle affidavit and testimony. He
made no such argument about the additional materials he wants the State to produce
now.
The closest the Defendant comes to expressing a reason for producing the
remaining items he seeks is found for the first time in his partial reargument motion
where he states, “The materials may be used to refresh recollection, to confront with
a prior inconsistent statement, or other means of impeachment.” The Court is not
persuaded. The Defendant has Cpl. Moses’ affidavit and testimony to confront him
with a prior inconsistent statement and to refresh his recollection should his memory
of them falter at trial.4 Citing unspecified “other means of impeachment” adds
nothing to the argument.
Accordingly, the Court finds that the Defendant has not articulated a basis for
the Court to compel the State to produce either: (1) all communications of any kind
between the Whittle prosecutor or anyone at the DOJ and the Wilmington Police
after the Whittle prosecutor was ordered [sic] to report Cpl. Moses to his supervisors;
or (2) All communications of any kind within the DOJ regarding Cpl. Moses’
affidavit and testimony in the Whittle case specifically and Cpl. Moses’ credibility
4
The Defendant does not explain how he might confront Cpl. Moses with someone
else’s prior statement inconsistent with his own as a prior inconsistent statement of
Cpl. Moses.
4
as a witness generally. Therefore, the Defendant’s Motion to Compel Brady material
is DENIED. It goes without saying, of course, that the State is under a continuing
duty to produce any Brady material it discovers, including, but not limited to, such
material related to Cpl. Moses.
The Defendant’s Motion for Partial Reargument was filed before the Court
ruled on the Defendant’s Motion to Compel. Therefore, the Motion for Partial
Reargument is DENIED as untimely.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton
Judge
oc: Prothonotary
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