IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
v. § I.D. No. 0104015882
CHAUNCEY STARLING, §
Defendant. §
QRM

Upon State’s Motion in Limine to Exclude Testimony of F orensic Investigation
Expert Robert Tressel
DENIED

Upon Starling’s Motion in Limine to Exclude Evidence of Starling’s Nickname
GRANTED

Submitted: January 25, 2017
Decided: January 26, 2017

This case arises from the deaths of Darnell Evans and Darnon Gist Jr. on
March 9, 2001. On October 24, 2003, following trial, a jury found Defendant
Chauncey Starling guilty of two counts of Murder in the First Degree. Starling
Was subsequently sentenced to death.

On Decernber 14, 2016, the DelaWare Supreme Court reversed Starling’s
convictions and remanded the case to this Court for a new trial. On remand, the
parties have presented numerous evidentiary challenges This is the Court’s

decision regarding (l) the State’s Motion in Limine to Exclude Testimony of

Starling’s Forensic Investigation Expert Robert Tressel; and (2) Starling’s Motion
in Limine to Exclude Evidence of Starling’s Nickname.

Upon consideration of the parties’ submissions; the Superior Court Criminal
Rules; the facts, arguments, and legal authorities set forth by the parties; statutory
and decisional law; and the entire record in this case, the Court hereby finds as
follows:

l. On March 9, 2001, Darnell Evans, an adult, and Damon Gist Jr., a
five-year old child, were shot to death at the Made-4-Men Barbershop on Fourth
Street between Market and Shipley Streets in Wilmington, Delaware.

2. On April 27, 20()1, following an investigation, Starling was arrested
for the shootings. On November 5, 2001, a grand jury indicted Starling for two
counts of Murder in the First Degree, two counts of Possession of a Firearm during
Commission of a Felony, and one count of Conspiracy in the First Degree.

3. On October 24, 2003, following trial, a jury convicted Starling on
each count of the indictment The jury unanimously agreed on the existence of

three statutory aggravating circumstances] and unanimously recommended the

 

l See ll Del. C. § 4209(€), declared unconstitutional by Raufv. State, 145 A.3d
430 (Del. 2016).

death penalty. On June 10, 2004, Starling was sentenced to death for the murders
of Darnell Evans and Damon Gist Jr.2

4. On February 8, 2005, Starling filed a direct appeal from his conviction
and sentence to the Delaware Supreme Court. By Opinion dated August 16, 2005,
the Delaware Supreme Court affirmed Starling’s conviction but vacated his death
sentence3 The Delaware Supreme Court remanded the case to the Superior Court
for resentencing4

5. On October 2, 2005, the Superior Court resentenced Starling to death
for each count of Murder in the First Degree. The Delaware Supreme Court
affirmed Starling’s death sentences on Starling’s Second direct appeal.5

6. In April 2007, Starling filed three motions for postconviction relief as
a self-represented litigant pursuant to Superior Court Criminal Rule 61. The Court
appointed counsel (“Rule 61 Counsel”) to represent Starling during postconviction

proceedings

7. On April 1, 2008, Rule 61 Counsel filed an amended motion for

postconviction relief. Thereafter, the parties Submitted numerous motions and

 

2 The Delaware Supreme Court recently declared Delaware’s capital sentencing
scheme unconstitutional Rauf v. State, 145 A.3d 430 (Del. 2016). The Supreme
Court has also held that Rauf retroactively applies to death sentences that were
final at the time Rauf was decided. Powell v. State, 2016 WL 7243456 (Del. Dec.
15, 2016).

3 Starling v. S¢a¢e, 882 A.zd 747 (Del. 2005).

4 Id. at 759.

5 Starling v. S¢a¢e, 903 A.zd 758 (Del. 2006).

3

responses and the Court held numerous hearings Supplemental briefing for
Starling’s motion for postconviction relief concluded on May 30, 2014. By
Memorandum Opinion dated August 28, 2014, this Court denied Starling’s motion
for postconviction relief.6

8. On September 22, 2014, Starling filed a direct appeal from this
Court’s Memorandum Opinion denying Starling’s motion for postconviction relief.
By Opinion dated December 14, 2015, the Delaware Supreme Court reversed and
remanded Starling’s convictions, granting Starling a new trial.7

9. On remand for a new trial, the State seeks to exclude the testimony of
Starling’s forensic investigation expert Robert Tressel at trial. Although the State
expressly recognizes that Tressel is a qualified forensic investigator, the State
contends that Tressel’s opinion is not relevant to this particular case, will not assist
the trier of fact, and has the potential to confuse the jury. The State asserts that
Tressel’s opinion is baseless, and amounts to conclusory “Monday morning
quarterbacking” of the investigation that led to Starling’s arrest. The State asserts
that the propriety of the Starling investigation can be adequately addressed through
cross-examination of investigating detectives, who are in the best position to

answer questions regarding the investigation in this case.

 

6 stare v. S¢arling, 2014 wL 4386127 (Del. super. Aug. 28, 2014).
7 Starling v. S¢aze, 130 A.3d 316 (Del. 2015).

4

10. The admissibility of expert testimony is governed by Delaware Rule
of Evidence (“DRE”) 702, which provides:

If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an opinion or
otherwise, if (l) 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.8

11. The Delaware Supreme Court has ruled that the admissibility of
expert testimony under DRE 702 is governed by the same test set forth by the
United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.9
Consistent with Daubert, the Court considers a five-step test to determine whether
expert testimony is admissible at trial.10 The Court must determine whether:

(l) 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 that 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 confuse or
mislead the jury. ll

 

8 D.R.E. 702.

9 MG. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521-22 (Del. 1999) (citing
Daubert v. Merrell Dow Pharm, lnc., 509 U.S. 579 (1993)).

10 Bowen v. E.I. DuPont de Nelnours & Co., 906 A.2d 787, 795 (Del. 2006).

1‘ smith v. Gn'@f, 2015 wL 128004, at *2 (Del. Jan. 8, 2015) (citing Bowen, 906
A.2d at 794); Pallano v. AES Corp., 2016 WL 750432, at *3 (Del. Super. Feb. 26,

2016).

The party seeking to introduce expert testimony bears the burden of establishing
admissibility by a preponderance of the evidence.12

12. The decision to admit expert testimony is not a conclusion that the
expert’s opinion is correct. Rather, the trial judge’s role as gatekeeper13 is limited
to determining “whether the proponent of the evidence has demonstrated that
scientific conclusions have been generated using sound and reliable approaches.”14
Expert opinions are admissible where they assist the trier of fact in understanding
the facts or evidence presented at trial15 and are otherwise the relevant product of
reliable methodology16 “Once the trial court has determined that a witness is
competent to testify as an expert, challenges to the expert’S skill or knowledge go
to the weight to be accorded the expert testimony rather than its admissibility.”17

13. This Court is satisfied that Tressel is competent to testify as an expert

in forensic investigation under DRE 702. The State acknowledges that Tressel’s

 

11 Pavey v_ Kalish, 2010 wL 3294304, at *3 (Del. 2010); sturgis v. Bayszde Heal¢h
ASS ’n, 942 A.2d 579, 584 (Del. 2007).

13 Pavey, 2010 wL 3294304, at *3; swrgis, 942 A.2d at 583.

14 stare v. McMullen, 900 A.2d 103, 114 (Dei. super. 2006) (citing rn re Paolz R.
R. md PCB Li¢ig., 35 F.3d 717, 744 (36 Cir. 1994)).

15 Pavey, 2010 wL 3294304, at *3; Ward v. shoney'$, rnc., 817 A.2d 799, 803
(Del. 2003); Sweiger v. Delaware Park, L.L.C., 2013 WL 6667339, at *4 (Del.
Super. Dec. 9, 2013).

16 Roa'riguez v. State, 30 A.3d 764, 769 (Del. 2011); McNally v. State, 980 A.2d
364, 368 (Del. 2009) M.G. Bancorporatz`on, Inc., 737 A.2d at 521.

17 Perry v. Berkley, 996 A.2d 1262, 1270_71 (Del. 2010) (quoting sylla-sawdon v.
Uniroyal Goodrich Tl`re Co., 47 F.3d 277, 283 (8th Cir. 1995)).

6

training, education, and experience qualify him as an expert in forensic
investigation Moreover, the proper procedures for a homicide investigation
constitute specialized knowledge that is not possessed by the average trier of fact.18
This Court disagrees with the State’S contention that Tressel’s opinions are based
on irrelevant generalities that are certain to create confusion To the contrary, the
Court finds that Tressel’s testimony will assist the trier of fact in considering a
complex and highly relevant issue to this case: the adequacy of the Starling
homicide investigation There is no indication that Tressel has an insufficient or
unreliable basis to assess the adequacy of a homicide investigation, or that Tressel
fails to tie his opinion to specific issues of material importance The Court is
satisfied that any generalized conclusions in Tressel’s testimony are made
applicable to the particular facts of this case.19

14. Upon a preponderance of the evidence,20 this Court finds that Tressel
has a reliable basis of knowledge and experience in the relevant discipline of
forensic investigation21 Accordingly, Tressel is competent to offer testimony

regarding the adequacy of the Starling homicide investigation pursuant to DRE

 

18 See Pennell v. State, 602 A.2d 48, 55 (Del. 1991); State v. Wright, 2009 WL
3111047, at *3 (Del. Super. Sept. 14, 2009).

19 See McNally v. State, 980 A.2d 364, 369 (Del. 2009).

20 Bowen, 906 A.2d 31795.

21 McNany, 980 A.2d at 370; Price v. Blood Bank Of Delaware, lnc., 790 A.2d
1203, 1210 (Del. 2002); MG. Bancorporation, Inc., 737 A.2d at 523; Willialns v.
Desperito, 2011 WL 7452803, at *3 (Del. Super. Oct. 24, 2011).

7

702. Because Tressel is a qualified expert witness, this Court finds that the State’s
evidentiary challenge goes to the weight of Tressel’s testimony and not its
admissibility22 The State may challenge Tressel’s testimony through the
traditional means of attacking admissible evidence, including cross-examination
and presentation of competing evidentiary theories.23 The State’s Motion in
Limine to Exclude Testimony of Starling’s Forensic lnvestigation Expert Robert
Tressel is therefore denied.

15 . Starling seeks to exclude evidence and testimony regarding Starling’s
nickname “Smoke” as irrelevant and unfairly prejudicial pursuant to DRE 403.
Starling argues that the probative value of the nickname is substantially
outweighed by the potential for unfair prejudicial inferences by the jury as to the
nickname’s meaning and Starling’s criminal disposition

16. DRE 403 permits the exclusion of relevant evidence “if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues or misleading the jury, or by considerations of undue delay, waste of

time or needless presentation of cumulative evidence.” Relevant evidence is

 

22 See Perry, 996 A.2d at 1270*71(“Once the trial court has determined that a
witness is competent to testify as an expert, challenges to the expert’s skill or
knowledge go to the weight to be accorded the expert testimony rather than its
admissibility”); id. at 1270 (“Weight and credibility challenges, on the other hand,
relate to an expert’s skill or knowledge in being able to tie the facts of the case to
the opinion he or she plans to give.”).

23 see state v. Phtlltps, 2015 wL 5168253, at *4 (Del. supet. sept 2, 2015)
(quoting Daubert, 509 U.S. at 596).

defined as “evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
than it would be without the evidence.”24 “To be considered relevant, the purpose
for which the evidence is offered must be material and probative.”25 “The
determination of whether the probative value of a particular piece of evidence is
substantially outweighed by the danger of unfair prejudice is a matter which falls
particularly within the discretion of the trial judge, who has the first-hand
opportunity to evaluate relevant factors.”26

17. This Court finds that the probative value of evidence concerning
Starling’s nickname “Smoke” is substantially outweighed by the danger of unfair
prejudice. Although the State contends that evidence regarding Starling’s
nickname is probative for identification purposes, the State fails to specify a factual
basis that demonstrates the relationship between the nickname and Starling’s

identity as the perpetrator of the March 9, 2001 murders of Darnell Evans and

Damon Gist, Jr. Moreover, the State fails to show how presentation of Starling’s

 

23 D.R.E. 401.

23 Hattsl@y v. state, 104 A.3d 833, 837 (De1. 2014) (quoting Notwood v. state, 95
A.3d 588, 598 (Dei. 2014)). see also Ltlly v. state, 649 A.2d 1055, 1060 (Del.
1994) (“The definition of relevant encompasses materiality and probative value.”).

26 Gttllttwtty v. state, 65 A.3d 564, 571 (Del. 2013) (quoting thltttms v. state, 494
A.2t11237, 1241 (Del. 1985)).

nickname is relevant, i.e. how it makes Starling’s culpability for these two murders
more or less likely.27

18. This Court agrees with Starling’s contention that introducing the
nickname “Smoke” may cause the jury to draw prejudicial inferences as to
Starling’s criminal disposition in the specific context of this case. lt is quite
conceivable that a jury may infer that Starling’s nickname is derived from previous
acts of violence, i.e., that Starling has previously killed, or “smoked,” someone.
“When a defendant charged with a crime of violence is identified before a jury by a
nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is
obvious.”28 Considering that Starling is on trial for Murder in the First Degree, this
Court finds that the potential for the nickname’s prejudicial impact is greater than

under circumstances that do not involve allegations of violent criminal conduct.

 

22 Cf United states v. Emttegbtmttm, 268 F.3d 377, 394 (6th cit 2001) (“It is eieat,
however, that the use of an alias in an indictment and in evidence is permissible if
it is necessary to connect the defendants with the acts charged.”); Hall v. State,
2013 WL 992550, at *1 (Del. Mar. 12, 2013) (holding that the admission of
Defendant’s nickname “Nasty Nate” was appropriate where the record showed that
the term “Nasty” did not improperly suggest criminal propensity and was probative
of the perpetrator’s identity); Fallman v. State, 2011 WL 6009670, at *3 (Del. Dec.
1, 2011) (holding that having Defendant display his facial scar and tattoos during
trial was appropriate where evidence of Defendant’s physical appearance was
highly probative to identifying Defendant as a perpetrator of robbery). See also
D.R.E. 401 (“‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”).

28 United States v. Farmer, 583 F.3d 131, 136 (2d Cir. 2009).

10

19. In the specific circumstances of this case, the probative value of the
nickname “Smoke” is substantially outweighed by the danger of unfair prejudice
Accordingly, Starling’s Motion in Limine to Exclude Evidence of Starling’s
Nickname is therefore granted.

NOW, THEREFORE, this 26th day of January, 2017, the State’s Motion
in Limine to Exclude the Testimony of Forensic Investigation Expert Robert
Tressel is hereby DENIED, and Starling’s Motion in Limine to Exclude

Evidence of Starling’s Nickname is hereby GRANTED.

IT Is so oRDEREI). §j@w_QQQ

The Honorable Andrea L. Rocanelli`

 

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