      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                       )
                                         )
      v.                                 )        ID Nos. 1906003128A/B;
                                         )                1906003201
TERRELL S. MOBLEY,                       )
                                         )
      Defendant.                         )

                             Submitted: March 23, 2020
                              Decided: May 21, 2020

           Upon Defendant’s Motions to Exclude Certain Prior Convictions
                                  GRANTED

                  Upon State’s Motion in Limine to Admit Evidence
                                     DENIED

                                     ORDER




Matthew B. Frawley, Deputy Attorney General, Periann Doko, Deputy Attorney
General, Department of Justice, Wilmington, Delaware, Attorneys for the State of
Delaware.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware, Attorney
for Defendant.



Rocanelli, J.
      This decision addresses evidentiary issues in two criminal actions against

Defendant Terrell Mobley (“Defendant”).1 Defendant is charged with murder,

attempted murder, and weapons offenses in Case No. 1906003201 (“Murder Case”).

Defendant is charged with various weapons offenses in Case No. 1906003128A/B

(“Weapons Case”). Both cases were scheduled for trials that have now been

continued as a result of the state of emergency related to COVID-19.

      Defendant intends to testify as a witness at both trials. The parties seek rulings

on the admissibility of certain evidence in anticipation of Defendant’s testimony in

his own defense. Defendant moves to exclude reference in both trials to Defendant’s

prior felony convictions for drug dealing offenses, arguing that the probative value

of the evidence is outweighed by its prejudicial effect pursuant to D.R.E. 609.2 The

State seeks admission in its case-in-chief of the Murder Case of certain evidence

related to Defendant’s alleged criminal activities under D.R.E. 404(b) on the grounds

that the information will establish motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.3




1
  A third case is also pending but is not addressed by this Order.
2
   Initially, Defendant also moved to exclude Defendant’s 2005 conviction for
Burglary Second Degree but later withdrew that part of the motion, conceding that
the burglary conviction is admissible for impeachment as a crime of dishonesty if
Defendant testifies as a witness.
3
  The State’s motion and Defendant’s response in opposition thereto have both been
filed under seal.
                                           1
                                   DISCUSSION

I. Defendant’s Motions

      Defendant’s motions seek a ruling on whether Defendant’s 2016 convictions

for drug dealing offenses may be used to attack Defendant’s credibility as a witness

if he chooses to testify at trial. These are felony offenses, and these convictions are

within 10 years.4 However, drug dealing is not a crime of dishonesty and, therefore,

evidence of these convictions is not admissible “unless the court determines, in the

interests of justice, that the probative value of the conviction supported by specific

facts and circumstances substantially outweighs its prejudicial effect.”5

      The prejudicial effect of Defendant’s prior drug dealing convictions

outweighs any probative value the convictions might have. While the convictions

are relatively recent, 6 they say very little about the credibility of Defendant’s

testimony. On the other hand, convictions for drug dealing offenses are highly

prejudicial when offered to impeach the veracity of a witness whose innocence or

guilt is being determined by the jury. 7 Presentation of such evidence is more likely


4
  D.R.E. 609(a) addresses the requirement of a felony conviction and D.R.E. 609(b)
addresses additional analysis for convictions more than 10 years old.
5
  D.R.E. 609(b).
6
  Both convictions occurred in 2016.
7
  See Gregory v. State, 616 A.2d 1198, 1203 (Del. 1992) (“[P]ast convictions for
narcotics offenses created a substantial risk that the jury would draw the character
inference, forbidden by D.R.E. 404(b), that the defendant acted in conformity with
a character predisposed to selling drugs. That failure was clearly prejudicial to
substantial rights as to jeopardize the fairness and integrity of the trial process.”).
                                            2
to call into question Defendant’s general propensity for criminal behavior than to

challenge the credibility of Defendant’s testimony.       Accordingly, evidence of

Defendant’s 2016 Drug Dealing drug convictions shall not be permitted as

affirmative evidence to impeach his credibility as a witness.8

II. The State’s Motion

      The State requests a ruling from the Court that the State be permitted to

introduce certain evidence in the State’s case-in-chief at Defendant’s trial in the

Murder Case. The State contends the evidence is necessary to explain its theory of

Defendant’s motives and intent for the homicide, as well as Defendant’s identity.

Specifically, the State proposes to present evidence it claims will establish proof of

Defendant’s various criminal relationships and illicit business dealings, as well as

an alleged admission by Defendant that Defendant shot the victim based on a

mistaken understanding that the victim was someone else who owed Defendant a

drug debt.

      Evidence of a person’s past crimes and other wrongful acts, while

inadmissible to prove a person’s character, 9 “may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,



8
  On the other hand, evidence of Defendant’s 2016 convictions for drug dealing
offenses would be permitted to challenge any testimony by Defendant that directly
contradicts the fact of these prior convictions.
9
  D.R.E. 404(b)(1).
                                           3
absence of mistake, or lack of accident.”10 The Delaware Supreme Court, in Getz v.

State, articulated a six-part test to assess the admissibility of evidence of crimes,

wrongs, or other acts under Rule 404(b):

      (1)    The evidence of other crimes must be material to an issue or
             ultimate fact in dispute in the case. . . .
      (2)    The evidence of other crimes must be introduced for a purpose
             sanctioned by Rule 404(b) or any other purpose not inconsistent
             with the basic prohibition against evidence of bad character or
             criminal disposition.
      (3)    The other crimes must be proved by evidence which is ‘plain,
             clear and conclusive.’
      (4)    The other crimes must not be too remote in time from the charged
             offense.
      (5)    The Court must balance the probative value of such evidence
             against its unfairly prejudicial effect, as required by D.R.E. 403.
      (6)    The jury must be instructed regarding the evidence’s limited
             purpose as required by D.R.E. 105. 11

Furthermore, the Delaware Supreme Court identified additional factors to consider

when balancing the probative value and unfair prejudice of proffered evidence under

the fifth prong of Getz,12 as follows:

      (1)    The extent to which the point to be proved is disputed;
      (2)    The adequacy of proof of the prior conduct;
      (3)    The probative force of the evidence;
      (4)    The proponent's need for the evidence;
      (5)    The availability of less prejudicial proof;
      (6)    The inflammatory or prejudicial effect of the evidence;
      (7)    The similarity of the prior wrong to the charged offense;
      (8)    The effectiveness of limiting instructions; and
      (9)    The extent to which prior act evidence would prolong the

10
   D.R.E. 404(b)(2).
11
   538 A.2d 726, 734 (1988).
12
   DeShields v. State, 706 A.2d 502, 506–07 (Del. 1998).
                                         4
             proceedings.13

      A.     “Drug Debt” Evidence Related to Uncharged Illicit Transactions

      The State seeks to present evidence to the jury of a “drug debt” allegedly owed

to Defendant by a person not otherwise involved in the shooting incidents in the

Murder Case. In addition, the so-called “drug debt” involves alleged transactions

that have not been the subject of criminal charges. To be admissible under Rule

404(b), evidence of Defendant’s participation in an uncharged drug transaction must

be “plain, clear, and conclusive.”14

      Citing Lloyd v. State,15 the State argues that “[w]itness testimony is sufficient

to support a finding of plain, clear, and conclusive evidence.” 16       The witness

testimony in Lloyd, however, was provided by a victim of uncharged sexual assault

to show that the defendant had, in fact, assaulted her. 17 Such testimony, the Court

noted, “is enough to support an element of the crime of rape” and is therefore

sufficient “to show reliability under the ‘plain, clear and conclusive’ standard of

Getz.”18




13
   Id.
14
   See id.
15
   1991 WL 247737 (Del. Nov. 6, 1991).
16
   Mot. in Lim. Admit Evid. 8.
17
   See Lloyd, 1991 WL 247737, at *3.
18
   Id.
                                          5
      However, the evidence which the State proposes to present in Defendant’s

Murder Case is much more attenuated and will not be presented by a witness with

personal knowledge of the uncharged misconduct at issue.          Rather, the State

proposes to present a witness who claims that Defendant mentioned a drug debt

owed by another person not otherwise related to the murder allegations at issue.

Such proposed testimony is not conclusive evidence of uncharged drug dealing.

      Furthermore, the total weight of the DeShields factors militates against

admissibility. First, the “adequacy of proof of the prior conduct” weighs heavily

against admissibility for the same reasons that the evidence is not plain, clear, and

conclusive—the “proof,” if any, is limited to the testimony of a witness who lacks

personal knowledge of the alleged unlawful drug transaction. Second, the State’s

need for the “drug debt” evidence is minimal. According to the State, two proposed

witnesses will both testify that Defendant admitted (1) to firing the gun that killed

the victim in the Murder Case and (2) that Defendant intended to kill someone else

who owed Defendant a drug debt. Such testimony is relevant in that it tends to prove

a fact in controversy, i.e., that Defendant is responsible for the homicide, but

introduces peripheral evidence of other criminal acts. The relatively marginal

probative value of the testimony is substantially outweighed by the highly

prejudicial nature of “drug debt” evidence. Moreover, introduction of this “drug




                                         6
debt” evidence will necessitate a mini-trial on highly controverted facts which would

require a much longer trial than otherwise would be necessary.

       Thus, upon balancing the probative value and unfair prejudice of the proffered

evidence, the State’s proposed “Drug Debt” evidence will be excluded.

       B.    Criminal Relationships Evidence

       The State cites the “inextricably intertwined” doctrine as support for its

request to admit evidence of alleged criminal relationships between Defendant and

two proposed witnesses relating to drug dealing and the illegal sale of firearms. The

inextricably intertwined doctrine’s “applicability is limited to ‘inextricably

intertwined’ evidence of uncharged misconduct which, if excluded, would create a

‘chronological and conceptual void’ in the State’s presentation of its case to the jury

that would likely result in significant confusion.”19 “A trial judge may only admit

evidence of ‘inextricably intertwined’ misconduct for the purposes of avoiding the

confusion which would be caused by its exclusion, and then only after balancing the

prejudicial effect of its inclusion.”20

       The State claims that evidence of the alleged criminal relationships is

necessary to “explain how [the witnesses] know Defendant” and “why Defendant

would confide in [the witnesses].”21 In other words, the State seeks to bolster the


19
   Pope v. State, 632 A.2d 73, 76 (Del. 1993).
20
   Id.
21
   Mot. in Lim. Admit Evid. 11–12.
                                          7
credibility of the witnesses, which is not a valid basis for invoking the inextricably

intertwined doctrine. The State can accomplish its goals without proffering highly

prejudicial character evidence.

      Thus, upon balancing the probative value and unfair prejudice of the State’s

proposed evidence of alleged criminal relationships between Defendant and the two

proposed witnesses, the evidence is inadmissible and shall be excluded.

      NOW, THEREFORE, this 21st day of May 2020:

      1.     Defendant’s motions to exclude certain prior criminal convictions

are hereby GRANTED; and

      2.     The State’s motion in limine to admit evidence is hereby DENIED.

      IT IS SO ORDERED.


                                       Andrea L. Rocanelli
                                       ___________________________________
                                        The Honorable Andrea L. Rocanelli




                                          8
