IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
, ) )

v. ) ID No. 2002007105 ) TERRELL S. MOBLEY
, ) ) Defendant

. )

Submitted: November 9 , 202 0 Decided: November 19
, 202 1

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 Attorney s General, Department of Justice, 820 N orth French Street, Wilmington, Delaware 19801, Attorneys for the State.
Patrick J. Collins, Esquire, Collins & Associates, 8 East 13th Street, Wilmington, Delaware 19801 , Attorney for Defendan t Terrell S. Mobley.

WHARTON , J.2 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 m otion in l imine to l imit the opinion
testimony of the State’s ballistic expert; and ( 2 ) a m otion in l imine to prohibit
impeachment of Mobley with certain prior felony convictions under D.R.E. 609

should he elect to testify

. The first m otion in l imine seeks to limit the opinion
testimony o f the State’s f irearm/ t oolmark expert t o preclude the expert from
testifying to what Mobley believes is an unwarranted degree of certainty about his

conclusions

. T he second m otion in l imine seeks to prohibit imp eachment of Mobley

with two prior felony drug offenses

— D rug D ealing in a T ier 4 Quantity and T ier 4

P ossession 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 2002007105.3

Nevertheless, because the option to testify remains open to him, the Court addresses

the motion now so that Mobley may make an informed decision a bout testifying.

The C ourt finds that the State has demonstrated by a preponderance of the
evidence that the proposed expert opinion testimony is reliable. Therefore,
Mobley ’s M otion in L imine to L imit E xpert T estimony is DENIED

. The Court finds

that t he probative value of Mobley’s prior felony convictions outweighs their
prejudicial effect and are admissible under D.R.E. 609(a). Therefore , Mobley ’s

M otion in L imine to E xclude C ertain Prior Convictions is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2018, the Wilmington Police Department responded to the 1400

block of W. 3 rd Street for reports of shots fired. 2 Officers located the victim, Kevis
Tyler (“Tyler”) , suffering from gunshot wounds. 3 Tyler was transported to

Christ iana 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 B allistics 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.4

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 O n February 17, 2020,
Mobley was indicted on the charges of Murder First Degree, Reckless Endangering
First Degree, Possession of a Firearm Dur ing 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 m otion s in l imine

. 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 p rior 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. 1 4 ; Def.’s Mot. to Exclude Certain Prior Convictions, D.I. 1 5

. 14 Def.’s Mot. to Limit Expert Testimony, D.I. 1 4

.5

d ishonesty 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 th is 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

T he 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

- exami nation , leaving it to t he 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. 1 4

. 19 Id.
20 Sate’s R esp to Def.’s Mot. to Limit Expert Testimony, D.I. 18.
21 Id. at 7.6

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, t his lack of probative value, coupled with a
danger of unfair prejudice, weighs in favor of excluding those convictions, if he

elects to testif

y 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, h e argues that holding is correct, and th ose

convictions should be excluded in the trial of this case as well

.
T he State argues that Mobley’s convictions have probative value, espe cially
considering the ir 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

Stat e 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, 20 20 WL 2572738 (Del. Super. CT. May 21, 2010).
25 State’s R esp. to Def.’s Mot. to Exclude Certain Prior Convictions, at 8, D.I. 17.
26 Id. at 7.
27 Id. at 11

- 12.7 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 derive d
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 limit ing 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 d e Nemou rs & Co. Inc. , 906 A.2d 787, 795 (Del. 2006).
30 State v. Gibbs , 2019 WL 6709058, at *3 (Del. Super. Ct. Dec. 9, 20 1 9) (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).8

testimony where “‘the process by which a firea rms 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 th e 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 Phi l lips 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 i t 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 t he State has demonstrated by a
preponderance of the evidence that the proposed expert testimony is reliable.

The refore, the Motion in Limine to Limit Expert Testimony is DENIED

.

33 Id.9

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. T he 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 ch arge 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 201 6

. Thus, the Court must balanc e whether the probative value

of th ose convictions outweighs their prejudicial effect. 35 If it concludes that the ir
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).10

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 prosec utors. ” 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

i nstant 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 crime s 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.11

it should give little impeaching weight to a convict ion 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 p ast convictions for narcotics

offenses do not create a substantial risk that the ju ry 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 o utweighs the ir prejudicial

effect. The Motion in Limine to Exclude Certain Prior Convictions is DENIED

. 44

THEREFORE, Def

e ndant Terrell Mobley’s M otion in L imine to Limit

E xpert T estimony 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 e ffect 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

va lue 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 th e 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 d rug 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).12

Defendant Terrell Mobley’s Motion in Limine to E xclude C ertain P rior

C onvictions is DENIED

.

IT IS SO ORDERED.

/s/ 

### Ferri s W. Wharton Ferris W. Wharton, J.