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

Submitted: January 11, 2022

Decided: January 18, 2022 

Barzilai Axelrod, Esquire John S. Malik, Esquire 

Matthew Hicks, Esquire 100 East 14th St 

Deputy Attorneys General Wilmington, DE 19801. 

Carvel State Building 

820 N. French St. 

Wilmington, DE 19801 

Re: State v. Sorento Martin

ID No. 2010006144

Upon the State’s Motion in Limine to Exclude Evidence of Victim’s Toxicology, 

CONDITIONALLY GRANTED.

Dear Counsel:

The Defendant, Sorento Martin (“Martin”), is charged with vehicular 

homicide second degree and overtaking and passing a school bus. The indictment 

alleges that Martin’s criminally negligent operation of a motor vehicle caused the 

death of Leroy Lynch, III (“Lynch”). The State’s theory of criminal negligence is 

that Martin passed a school bus stopped on the shoulder of southbound Route 9 with 

its red lights activated and its stop sign extended and struck and killed Lynch who 
2

had crossed in front of the bus and entered into the southbound lanes of traffic. A 

post-mortem toxicology report listed an unquantified amount of marijuana in 

Lynch’s blood. 

Before the Court is the State’s Motion in Limine seeking to exclude any 

evidence at trial of those toxicological results. The State argues that the results are 

irrelevant under DRE 401 and therefore inadmissible under DRE and 402. The State 

further argues that, even if the results are relevant, they should be excluded under 

DRE 403. The results do not constitute a defense to the defendant’s criminal liability 

and their admission would be unfairly prejudicial, confuse the issues, mislead the 

jury, cause undue delay, and waste time. 

 Martin opposes the motion. He argues that the presence of marijuana in 

Lynch’s blood is relevant to assessing the causation and mens rea elements of the 

vehicular homicide charge. He explains that Lynch’s walking into the roadway in 

darkness without a light could be considered a cause of the collision. Further, it is 

highly probable that Lynch’s ingestion of marijuana impaired his cognition, 

perception, and ability to react at the time of the accident, making it relevant to the 

cause of the accident. He further argues that Lynch’s decision to walk into the 

roadway in the dark without a light has a bearing Martin’s ability to perceive a risk 

that his driving would cause a death and Martin’s conduct was a gross deviation 
3

from the standard of conduct of a reasonable person. Finally, he disputes that 

probative value of the toxicology would be substantially outweighed by the danger 

of unfair prejudice, undue delay, confusion of issues, or wasting time. 

Under DRE 401, relevant evidence is evidence that “has any tendency to make 

a fact more or less probable than it would be without the evidence,” and “the fact is 

of consequence in determining the outcome.” DRE 402 make relevant evidence 

admissible with certain exceptions not relevant here and irrelevant evidence 

inadmissible. DRE 403 allows a court to exclude relevant evidence if “its probative 

value is substantially outweighed by the danger of ... unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” 

The parties have called to Court’s attention to several cases where the

relevance of the victim’s possible intoxication was addressed. In Lilly v. State the 

Delaware Supreme Court held that the trial court did not abuse its discretion when 

it excluded evidence of the blood alcohol content and cocaine impairment of the 

victim of a head-on collision occurring in her lane of traffic.1 At trial, it was not 

disputed that Lilly crossed the center line and collided head-on with the victim who 

1 649 A.2d 1055, 1060 (Del. 1994).
4

was travelling in the proper lane of traffic.2 Under these undisputed facts, the Court 

held that the proposed evidence of the victim’s impairment was not relevant because 

it was not asserted at trial that her conduct was the cause of the accident.3 

In Zdina v. State, a criminally negligent homicide case, the Delaware Supreme 

Court also found that the trial court did not abuse its discretion when it refused to 

allow cross-examination of the State’s investigating officer about the victim’s blood 

alcohol level.4 The trial court had found that all of the testimony at trial indicated 

that the victim was struck when he was on the shoulder of the highway and that his 

blood alcohol level was not related to any contested issue of fact.5

 In State v. Pardo, the Superior Court addressed the issue of a victim’s 

impairment in the context of a post-conviction claim of ineffective assistance of 

counsel.6 Pardo had been convicted of manslaughter as a result of his operation of 

his motor vehicle causing the death of a cyclist. In his post-conviction relief motion, 

he claimed that his trial counsel was ineffective in withdrawing a motion to admit a 

toxicology report showing that the victim had ingested marijuana.7 Trial counsel 

2

Id.

3

Id.

4 1997 WL 328593, at *1 (Del. 1997)

5

Id.

6 2019 WL 6329067, at *10 (Del. Super. Ct. Nov. 26, 2019). 

7

Id. 
5

originally had sought to introduce the evidence to show that the victim’s conduct 

had contributed to the collision, but withdrew the motion after determining that there 

was no meaningful correlation between the amount of marijuana in a person’s 

bloodstream and the person’s impairment.8 For that reason, trial counsel concluded, 

correctly in the Pardo court’s view, that the marijuana in the victim’s bloodstream 

was not probative of the cause of the victim’s death and therefore irrelevant.9 

Accordingly, the decision to withdraw the motion was professionally reasonable and 

not ineffective assistance of counsel.10

 Finally, the parties discuss Stickel v. State.11 Stickel was convicted of two

counts of vehicular homicide.12 On appeal, he claimed that the Superior Court 

abused its discretion in admitting toxicology reports offered by the State to show 

that the decedents were not intoxicated at the time of the accident.13 In Stickel, the 

defense argued that it was the decedents’ possible speeding, drag racing and 

otherwise dangerous operation of their motorcycles that caused the accident in an 

effort to create doubt that his criminally negligent driving caused their deaths.14 The 

8

Id.

9

Id.

10 Id. 

11 975 A.2d 780 (Del. 2009).

12 Id.

13 Id.

14 Id., at 783.
6

Supreme Court held that unlike the situation in Lilly, the decedents’ behavior in 

driving their motorcycles was at issue, and thus, the trial court did not abuse its 

discretion in admitting evidence that the decedents had not consumed alcohol or 

drugs.15 

Here, Martin argues that because Lynch walked into a roadway in front of a 

bus in darkness without a light with marijuana in his system, his behavior could be 

considered a cause of the accident. In the Court’s view, the resolution of the motion 

depends on the facts the State is able to establish. The State has laid out a set of facts 

whereby Martin passed a stopped school bus with its red lights activated and its stop 

sign extended before striking Lynch in the roadway. Martin does not contest those 

facts in his response to the motion, nor does he admit them. He merely 

acknowledges that the State alleges them. If the evidence at trial is uncontested and 

establishes that Martin indeed did pass a stopped school bus with its red lights 

activated and its stop sign extended, the Court finds that the presence of marijuana 

in Lynch’s system to be irrelevant. Under those facts, Martin violated the statute 

prohibiting passing a stopped school bus. Similar to the victims in Lilly and Zdina, 

Lynch was where he was legally entitled to be and where Martin was not entitled to 

intrude. It is Martin’s conduct that is the proximate cause of Lynch’s death and not 

15 Id., at 785.
7

Lynch’s behavior. The statute is intended to protect children from motorists passing 

stopped school busses. The risk, whether it be to a child or to Lynch is the same and 

failing to perceive that risk is a gross deviation from the standard of care a reasonable 

person would exercise under the circumstances. 

On the other hand, if there is a genuine issue of fact whether the bus was 

stopped with its red lights activated and its stop sign extended when Martin passed 

it, Lynch’s behavior, including his possible intoxication would be relevant. Further, 

under those circumstances, DRE 403 would not bar the admission of Lynch’s 

toxicology results. Because Martin has not argued those contrary facts, however, 

the motion is CONDITIONALLTY GRANTED. 

Accordingly, the State’s Motion in Limine to Exclude Evidence of the

Victim’s Toxicology is CONDITIONALLY GRANTED. 

IT IS SO ORDERED.

/s/ Ferris W. Wharton

 Ferris W. Wharton

 Judge

oc: Prothonotary