       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KYLE JOSEPH MUNDY,                      )
                                        )
                 Plaintiff,             )
                                        )
            v.                          )
                                        )    C.A. No. N11C-09-102 JAP
DELAWARE GOLF & TRAVEL,                 )
LLC, DBA A LIMITED LIABILITY            )
COMPANY AND GOLD                        )
PARTNERS, LTD, A DELAWARE               )
CORPORATION,                            )
                                        )
                  Defendants.           )


                                February 17, 2016

   On Defendants’ Delaware Golf & Travel, LLC, et al. Motion for New Trial.
                                DENIED.

                                    ORDER


Vincent J.X. Hendrick, II, Esquire, and Beverly L. Bove, Esquire, Beverly L.
Bove, Attorney at Law, 1020 West 10th Street, Wilmington, Delaware, 19899.
Attorneys for Plaintiff.

Nicholas E. Skiles, Esquire, Matthew M. Warren, Esquire, Schwartz Campbell
LLC, 300 Delaware Avenue, Suite 1410, Wilmington, Delaware, 19899.
Attorneys for Defendant.




Scott, J.
                                        Introduction

       Before the Court is Defendants’ Delaware Golf & Travel, LLC, et al.

(“Defendants”) Motion for New Trial, based on an alleged error of law during trial.

The Court has reviewed the parties’ submissions. For the following reasons,

Defendants’ Motion for New Trial is DENIED.

                                        Background

       At trial, Plaintiff’s counsel cross examined Michael Rose, the principal and

owner of The Gold Club, concerning his hiring and retention of security who

worked the night that Plaintiff was shot, including the hiring of David Carter.

During the cross examination, Mr. Rose was asked if he knew that Mr. Carter had

been convicted of a felony. Defense counsel objected on the basis that there was

no indication that Mr. Rose hired Mr. Carter, and that the felony conviction was

“not being used to impeach Mr. Carter, [but] used to impeach Mr. Rose, who did

not hire him.” 1       Defense counsel further asserted that the testimony was

prejudicial, and was not relied upon by Plaintiff’s expert.2 Finally, defense counsel

argued that there is “nothing in here to indicate Mr. Carter was, you know, was

particularly violent, nor is there anything in here to indicate what happened.” 3

Based on the sidebar discussion, the Court found the testimony relevant and

overruled defense counsel’s objection.

1
  September 29, 2015 Trial Transcript Excerpts at 2-3.
2
  Id. at 4.
3
  Id. at 5.
                                            2
          After Mr. Rose’s cross examination, defense counsel raised a new objection

regarding whether Mr. Carter’s felony conviction was accurate, and requesting a

certified copy of the criminal disposition. Defense counsel admitted that he had

not raised the objection at sidebar on the issue. 4 The Court provided defense

counsel the opportunity to submit a legal memorandum explaining why defense

counsel had not waived this objection because it was not raised at sidebar at the

time of Mr. Rose’s cross examination. The following morning, defense counsel

confirmed his withdrawal of the objection regarding the accuracy of the felony

conviction, as the document regarding the conviction was not entered into

evidence.5

          At the conclusion of trial, the jury found in favor of Plaintiff. Subsequently,

Defendant filed this Motion for New Trial, on the basis that Defendant was unduly

prejudiced by the introduction of the inaccurate conviction, and further that the

conviction was inadmissible under Delaware Rules of Evidence Rule 609.

                                   Standard of Review

          Superior Court Civil Rule 59(a) states in pertinent part, “[a] new trial may be

granted as to all or any of the parties and on all or part of the issues in the action in

which there has been a trial for any of the reasons for which new trials have




4
    Id. at12.
5
    Id. at 16-17.
                                          3
heretofore been granted in the Superior Court.”6              Motions made pursuant to

Superior Civil Rule 59(a) may be granted or denied at the Court's discretion.

Where the basis of the motion for new trial is an error of law, the moving party

must demonstrate that the alleged error caused sufficient prejudice to warrant a

new trial.7 Moreover, the Court may only grant a new trial if the grounds were

asserted during the preceding trial.8

                                        Discussion

       Defendants’ first basis for this motion is that Plaintiff’s representations of

Mr. Carter’s felony conviction to the jury were inaccurate. This argument fails,

however, because Defendant has withdrawn and waived its objection on this

basis. 9 Moreover, the record has shown that those representations were, in fact,

accurate.

       Furthermore, Defendants’ argument that admission of Mr. Carter’s felony

conviction at trial was improper under D.R.E. 609 fails because the Court did not

err as a matter of law. Defense counsel did not specifically raise Rule 609 as his

original objection to the felony conviction; the substance of his argument revolved

around its admissibility for impeachment purposes and whether it was proper cross

examination for Mr. Rose. The Court finds Rule 609 is not applicable or relevant
6
  Superior Court Civil Rule 59(a).
7
  See generally, Gallo v. Buccini/Pollin Group, 2008 WL 836020 *6-7 (Del. Super. Mar. 8,
2008).
8
  State v. Sierra, 2012 WL 3893532 (Del. Super. Sept. 6, 2012); State v. Ruiz, 2002 WL 1265533
(Del. Super. June 4, 2002).
9
  See Id.
                                          4
to this issue because Mr. Carter’s prior felony conviction was introduced during

Mr. Rose’s cross examination for a non-character purpose.10

         Evidence was presented at trial that Mr. Rose was the owner of The Gold

Club, and involved with its day-to-day operations. Additionally, evidence was

presented that Mr. Carter, a bouncer at The Gold Club at the time Plaintiff was

shot, was both working and involved in the incident that lead to the shooting. As

such, Mr. Rose’s knowledge, or lack thereof, of an employee’s prior felony

convictions before hiring him was relevant and admissible non-character evidence

in this case. 11 Thus, the Court finds that it did not err as a matter of law in

allowing the introduction of Mr. Carter’s felony conviction during Mr. Rose’s

cross examination. Accordingly, Defendants’ arguments on this motion for new

trial are meritless and it has failed to demonstrate any prejudice.

                                     Conclusion

         For the foregoing reasons, Defendants’ Delaware Golf & Travel, LLC, et al.

Motion for New Trial is DENIED.


         IT IS SO ORDERED.

                                               /s/ Calvin L. Scott
                                               Judge Calvin L. Scott, Jr.




10
     See D.R.E. 609.
11
     See D.R.E. 401; D.R.E. 609.
                                       5
