IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
)
v,Z ) Cr.A. No.: 1503008254
)
)
RANDOLPH LUCAS, )
)
Defendant. )
)
Submitted: August 3, 2015
Decided: September 2, 2015
John S. Grimm, Esquire Marc J. Wienkowwitz, Esquire
Deputy Attorney General 1716 Wawaset Street
820 N. French Street, 7th Floor Wilmington, DE 19806
Wilmington, DE 19801 Attorney for Defendant

Attorney for the State of Delaware

DECISION AFTER TRIAL

RENNIE, J.

INTRODUCTION

On March 14, 2015, Randolph Allen Lucas (“Defendant”) was arrested and charged with
Possession of Marijuana with an Aggravating Factor, in violation of 16 Del. C. § 4764(a), and
Failure When Moving Right, Left or Turning to Signal Continuously Not Less Than 300 Feet, in
violation of 21 Del. C. § 4155(b). At trial on July 27, 2015, the Court heard testimony from
Detective Matthew Rosaio (“Detective Rosaio”) of the Wilmington Police Department (“WPD”)
and Defendant. At the conclusion of trial, the Court reserved its decision and ordered
supplemental brieﬁng. This is the Court’s ﬁnal decision after trial.

FACTUAL BACKGROUND

On March 14, 2015, Detective Rosaio was patrolling the City of Wilmington when he
saw Defendant driving a white Nissan, traveling east on the 1400 block of West 3rd Street.
Detective Rosaio testiﬁed that he saw Defendant drive his car from the center of the road to the
right side of the road in an attempt to park, without activating his tum signal. Contrary to
Detective Rosaio’s testimony, Defendant testified that he used his tum-signal when parking, and
stated that the tum-signal was still activated once he parked.

Detective Rosaio testiﬁed that upon making contact with Defendant, he immediately
detected the smell of fresh marijuana, and that when questioned, Defendant stated that he had
just finished smoking marijuana. Defendant did not, however, state that he had marijuana on his
person or in his car. Detective Rosaio then removed Defendant from the vehicle, and performed
a search of the vehicle, which yielded two sandwich bags containing a substance that Detective

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Rosaio deemed to be marijuana. Detective Rosaio determined that the substance was marijuana

after he smelled a recognizable pungent odor emanating from the substance. Defendant did not

 

 

I Detective Rosaio stated that the substance appeared to be the buds from a marijuana plant (marijuana nuggets),
which is the purest form of marijuana.

 

 

 

make any statements as to what the substance was or how he came to possess the substance.
Detective Rosaio placed Defendant under arrest, and took him to the station. While collecting
inventory, Detective Rosaio found a large sum of money in Defendant’s right pocket, and a
canine sniff of the currency resulted in a positive alert to the presence of a controlled dangerous
substance. Detective Rosaio subsequently utilized a NARK #8 ﬁeld test kit, and he testiﬁed that
the substance tested positive for marijuana.

At the end of trial, Defendant argued that the State did not meet its burden in producing
sufﬁcient. evidence that identiﬁed the substance seized from Defendant’s car as marijuana. The
State argued that it did meet its burden because it produced Detective Rosaio as an expert in the
area of identiﬁcation of controlled substances. Defendant objected to Detective Rosaio’s
testimony and argued that the State had not produced sufﬁcient evidence to qualify him as an
expert.

DISCUSSION

A. Defendant’s Charge of Failure to Signal

Under 21 Del. C. § 4155(b), “[a] signal of intention to turn or move right or left when
required shall be given continuously during not less than the last 300 feet or more than 1/2 mile
traveled by the vehicle before turning.” In this case, Defendant testiﬁed that he activated his turn
signal when parking, however, Detective Rosaio testiﬁed that he saw Defendant drive his car
from the center of the road to the right side of the road in an attempt to park without activating
his turn signal. Aﬁer weighing the credibility of both witnesses, the Court ﬁnds that the State
has met its burden in proving that Defendant failed to activate his turn signal while parking, in

violation of 21 Del. C. § 4155(b).

B. Defendant’s Charge of Possession of Marijuana

The dispositive issue before the Court is whether the State has produced sufﬁcient
evidence to prove beyond a reasonable doubt that the substance seized by Detective Rosaio was
marijuana. The State did not provide a medical examiner’s report, or any corroborating evidence
on the identiﬁcation of the substance at issue. Instead, the State relied solely on the testimony of
Detective Rosaio, and proffered Detective Rosaio as an expert in the area of identiﬁcation of
controlled substances.

As an expert witness, Detective Rosaio’s testimony is governed by Delaware Rule of
Evidence 702 (“D.R.E. 702”). Pursuant to D.R.E. 702, expert testimony is admissible if: “(1) the
testimony is based upon sufﬁcient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles and methods reliably to the

facts of the case.”2

D.R.E. 702 tracks Federal Rule of Evidence 702, and the Delaware Supreme Court has
adopted Daubert v. Merrell Dow Pharmaceuticals, Inc.3 as the correct interpretation of D.R.E.
702.4 Consistent with Daubert, D.R.E. 702 “‘imposes a special obligation upon a trial judge to

ensure that any and all scientiﬁc testimony . . . is not only relevant, but reliable.”5 In order for

“E

expert testimony to be reliable, it must be supported by appropriate validation—Le, good

grounds, based on what is known.’”6 Expert testimony is validated when it pertains to valid,

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scientiﬁc knowledge. Under Daubert, when determining whether expert testimony is reliable

and validated, the Court should consider the following factors:

2 D.R.E. 702.

3 509 US. 579 (1993).
4 D.R.E. 702 cmt. See also MG. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del.1999).

5 Bowen v. E]. DuPont de Nemours & C0., 906 A.2d 787, 794 (Del. 2006) (citingMG. Bancorporation, 737 A.2d

at 521 (citations 0mitted)).
6 Tumlinson v, Advanced Micro Devices, Inc., 106 A.3d 983, 990 (Del. 2013) (citing Daubert, 509 US. at 597).

7 Id.

 

 

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( 1) whether a theory or technique has been tested;

(2) whether it has been subjected to peer review and publication;

(3) whether a technique had a high known or potential rate of error and whether there
are standards controlling its operation; and

(4) whether the theory or technique enjoys general acceptance within a relevant

scientiﬁc community.8

Delaware jurisprudence further requires the Court to apply a ﬁve-step test to determine the
admissibility of scientiﬁc or technical expert testimony, in which the Court must decide whether:

(1) the witness is qualiﬁed as an expert by knowledge, skill, experience,
training, or education,

(2) the evidence is relevant,

(3) the expert's opinion is based upon information reasonably relied upon
by experts in the particular ﬁeld,

(4) the expert testimony will assist the trier of fact to understand the
evidence or determine a material fact in issue, and

(5) the expert testimony will not create unfair prejudice or conﬁise or
mislead the jury.9

If the testimony submitted to the Court does not satisfy the requirements needed to qualify as
expert testimony, then the Court may consider the testimony as lay opinion. Additionally, “when
the scientiﬁc evidence is obtained from the use of a scientiﬁc instrument, expert testimony is
necessary to establish the reliability and accuracy of the instrument.”10 “‘The party seeking to
introduce the expert testimony bears the burden of establishing its admissibility by a

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preponderance of the ev1dence.’”

First, the Court will address the admissibility of the NARK #8 ﬁeld test result. Although
Detective Rosaio gave a cursory explanation of how he administered the ﬁeld test, he did not

describe the process with speciﬁcity so as to demonstrate the reliability and accuracy of the

 

 

8- Bowen, 906 A.2d at 795 (citing Daubert, 509 US. at 590—94).
9 Sturgis v. Bayside Health Ass’n Chartered, 942 A.2d 579, 584 (Del. 2007) (citing Bowen, 906 A.2d at 795).

10 Tolson v. State, 900 A.2d 639, 645 (Del. 2006)
H Sturgis, 942 A.2d at 584 (quoting Bowen, 906 A.2d at 795).

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NARK ﬁled test.12 Similarly, while Detective Rosaio testiﬁed that the NARK kits have a high
probability of precision, he could not state a known error rate of the NARK kits’ reliability.l3
Moreover, the record is void of any evidence that the NARK kit has been tested or has generally
been accepted as a reliable method of identifying controlled substances in the law enforcement
community. Therefore, without more corroborating evidence as to the reliability and accuracy,
the result of the ﬁeld test is inadmissible as scientiﬁc evidence that the substance seized by
Detective Rosaio was marijuana.

The Court will now address the admissibility of Detective Rosaio’s testimony as an
expert witness. The State proffered Detective Rosaio as an expert in the area of identiﬁcation of
controlled substances based on his knowledge, training and experience. Detective Rosaio
testiﬁed that when he received his police training, he learned how to identify drugs and the
various ways in which individuals may use certain drugs and narcotics. Additionally, over the
course of Detective Roasio’s ﬁve-and-one-half year tenure with WPD, he has attended several
trainings and courses on drugs and drug use.[4 In particular, Detective Rosaio attended a course
at the University of Delaware where he learned of the newest forms of marijuana and trends in
using marijuana. Detective Rosaio testiﬁed that he has arrested numerous people for drug-
related offenses, and has seized close to one-hundred pounds of marijuana over the course of his
career. After seizing the substance from Defendant, Detective Rosaio determined that the

substance was marijuana after smelling a recognizable pungent odor emanating from the

 

ii _ _

 

 

'2 Detective Rosaio testiﬁed that he took a small sample of the seized substance and placed it into a plastic vile that
contains another plastic vile ﬁlled with a chemical agent. Defendant Rosaio then shook the viles and the inner vile
broke and the chemical agent changed to a “purple-ish blue” color, which Defendant Rosaio explained, meant that
the substance tested positive for the presence of marijuana.

13 While Detective Rosaio offered his own subjective opinion of the NARK kit’s reliability, he was unable to
provide any objective opinion as to its reliability. As such, the record is void of any evidence that would show that
the NARK kit as a generally acceptable method for identifying marijuana. '-

M This training includes U.S. Marshall training, FBI training, and ofﬁcer safety training.

6

 

substance. He testiﬁed that he recognized the odor based on his knowledge, training and
experience.

At trial and in its post-trial brieﬁng, the State contended that Detective Rosaio’s expert
testimony, without more, was sufﬁcient to establish that the substance seized from Defendant
was in fact marijuana. Defendant, however, has challenged whether the State produced evidence
sufﬁcient to establish Detective Rosaio’s qualiﬁcations to even testify as an expert witness.
While the State properly relied on Wright v. State” and Norman v. State16 in support of its
argument, the State has not produced any argument on whether Detective Rosaio properly
testiﬁed as an expert witness.

Although the Court ﬁnds Detective Rosaio to be a credible witness, the Court ﬁnds that
the State has not produced enough evidence that establishes Detective Rosaio’s qualiﬁcations to
testify as an expert. Detective Rosaio provided general background information on his
knowledge and training in the area of identiﬁcation of controlled substances. In addition, he
testiﬁed that he took one course at the University of Delaware, but he did not provide any
speciﬁc testimony as to what his training encompassed, when he was trained, or who trained
him. Without more corroborating evidence as to Detective Rosaio’s speciﬁc qualiﬁcations, the
Court is unable to conclude that Detective is qualiﬁed to testify as a witness in the area of
identiﬁcation of controlled substances. Accordingly, the Court will consider Detective Rosaio’s
testimony as lay opinion.

Under D.R.E. 701, a lay witness may give an opinion if the opinion is “(a) rationally
based on the perception of the witness and (b) helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue and (c) not based on scientiﬁc, technical or other

‘5 953 A.2d 188 (DEL 2008).
‘6 968 A.2d 27, 31 (Del. 2009);.

 

specialized knowledge within the scope of Rule 702.”17 The Delaware Supreme Court has found
that “[a] lay witness with familiarity and experience with the drug in question may testify and
establish a drug’s identity,”18 however, a police ofﬁcer cannot testify as a lay witness when
identifying a substance as a drug.19 In Norman v. State, the Court highlighted this distinction by
comparing a police ofﬁcer’s knowledge to that of a drug dealer.20 Unlike a police ofﬁcer’s
familiarity, a drug dealer who is familiar with a particular drug is familiar with it because he

I In other words, he is testifying as a true lay witness who is

buys, handles and sells the drug.2
familiar with and has the ability to identify a drug based on his handling of that drug. A police
ofﬁcer’s “familiarity with controlled substances, by contrast, comes from [his] training and [his]
specialized experience in apprehending criminals who are involved in drugs.”22 Such testimony
would Violate D.R.E. 701(c), and therefore cannot constitute proper lay opinion.23 Essentially,
when a police ofﬁcer identiﬁes a drug while giving lay testimony, he “actually [is] testifying as
[an] expert[] without being qualiﬁed.”24

Consequently, the Court will not consider Detective Rosaio’s lay opinion as to the
identity of the substance seized from Defendant. Without proper expert testimony, a medical

examiner’s report, or other valid corroborating evidence, this Court cannot conclude, beyond a

reasonable doubt, that the substance seized by Detective Rosaio was indeed marijuana.

'7 D.R.E. 701.
'8 Wright, 953 A.2d at 195.

‘9 Norman, 968 A.2d at 31.

20 Id. (comparing the lay witness proffered in Wright v. State, 953 A.2d 188 (Del. 2008) with the lay witness
proffered in Norman).

2' Id.

22 Id.

23 Id.

24 Id. (citing Seward v. State, 723 A.2d 365 (Del. 1999).

_ 

CONCLUSION

For the foregoing reasons, the Court ﬁnds Defendant Randolph Lucas GUILTY of
Failure When Moving Right, Left or Turning to Signal Continuously Not Less Than 300 Feet, in
Violation of21 Del. C. § 4155(b).

The State has not met its burden of proving beyond a reasonable doubt that Defendant
Randolph A. Lucas was in possession of marijuana. Accordingly, the Court finds Defendant
Randolph Lucas NOT GUILTY of Possession of Marijuana with an Aggravating Factor, in
Violation of 16 Del. C. § 4764(a).

This Judicial Ofﬁcer shall retain jurisdiction of this case and will schedule it forthwith for

sentencmg. /--'

IT IS so ORDERED this 2“d day of Se ember 015. . -

 

