IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

)

)

v. ) ID No. 1511017784A&B

)

BOBBY TAYLOR, )
)

Defendant.

Submitted and Decided: September 3, 2019*
Written Decision Issued: September 20, 2019
Corrected: September 23, 2019

ORDER DENYING DEFENDANT’S MOTION FOR
DISMISSAL OF INDICTMENT

This 20" day of September, 2019, having considered Defendant Bobby
Taylor’s Motion to Dismiss the indictment; the State’s Response thereto; the parties’
supplemental filings; the parties’ oral arguments; and the record in this matter; it

appears to the Court that:
(1) On November 27, 2017, Defendant Bobby Taylor was indicted for
multiple charges stemming from the shooting death of Aloysius Taylor! at the car

detailing business where they both worked.’

 

* The Court denied this motion via bench ruling after oral argument on September 3, 2019.
This Order is entered merely as a complement to the Court’s analysis and ruling that was set forth
on the record at that time.

Defendant Bobby Taylor is of no known relation to victim Aloysius Taylor. ‘Taylor”
hereafter refers to the Defendant Bobby Taylor. The Court refers to the victim by his first name
to avoid confusion. Neither undue familiarity nor disrespect is intended.

2 See Indictment, State v. Taylor, ID No. 1511017784A (Del. Super. Ct. November 27, 2017)
(D.I. 4).

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(2) The errors that halted the prior proceedings occurred on the second day
of Taylor’s first jury trial. During Taylor’s cross-examination as a witness in his
own defense, State’s counsel needlessly questioned him about prior criminal
convictions;> personalized the prosecution team and law enforcement through
repeated use of the collective “we”;' and asked questions suggesting adverse
inferences from Taylor’s exercise of his right to remain silent between his arrest and
trial.° Based thereon, Taylor moved for a mistrial. The Court granted that
application the next day.°

(3) Taylor now moves to dismiss his indictment claiming that retrial would
constitute double jeopardy.’ As the State seeks a new trial of his murder and firearms

charges,® this claim is ripe for decision.’

 

3 Feb. 26, 2019 Defendant’s Cross/Recross-Examination Tr., at 12-13 (D.I. 52).
4 Id. at 26-27.
° Id. at 40.

6 Feb. 27, 2019 Mistrial Motion Tr., at 35 (D.I. 42).

? Motion to Dismiss Indictment, Stave v. Taylor, ID. No. 1511017784A (Del. Super. Ct. May
29, 2019) (D.I. 45).

8 Email Correspondence with Counsel, State v. Taylor, ID. No. 1511017784A (Del. Super.
Ct. May 29, 2019) (D.I. 43) (confirming retrial dates). Jury selection for Taylor’s retrial is to
commence on September 23, 2019.

? See Morris vy. State, 795 A.2d 653, 661 (Del. 2002) (State’s election of a retrial ripens a
double jeopardy claim).
(4) When a criminal defendant moves for a mistrial, the Double Jeopardy
Clauses of the United States'? and Delaware!' Constitutions bar retrial only when
the mistrial was intentionally provoked by the State.'* This is a “narrow exception”
to the general rule permitting retrial.'> When applying this narrow exception the
Court as fact finder'* may infer intent."

(5) In its cross-examination of Taylor regarding his prior criminal

convictions, the State just reiterated'® that which had already been fully elicited on

 

10 U.S. Const. amend. V.

" Del. Const. art. J, § 8. Delaware’s Double Jeopardy clause is “virtually identical” to the
Federal one, and follows the same standards. Hughey v. State, 522 A.2d 335, fn 5 (Del. 1987).

12 Oregon v. Kennedy, 456 U.S. 667, 676 (1982); Sullins v. State, 930 A.2d 911, 916 (Del.
2007) (observing this includes causing mistrial by intentional violations of due process that goad
defendant into seeking a mistrial). Federal case law prior to Kennedy also barred retrial when the
prosecution’s conduct caused a mistrial through “bad faith” rather than intent. Lee v. United States,
432 U.S. 23, 33 (1977). Kennedy explained that in this context “bad faith” was limited to deliberate
violations of a defendant’s due process rights intended to present a criminal defendant with a
Hobson’s choice of risking conviction by an improperly prejudiced jury or allowing the State a
second opportunity to build a stronger record before a new fact finder. 456 U.S. at 685-686.

13 Butler v. State, 95 A.3d 21, 32 (Del. 2014). Though irrelevant here, this “narrow
exception” includes a mistrial provoked by judicial conduct; a double jeopardy claim in that
circumstance is governed by this same standard. /d.

14 Sullins, 930 A.2d at 916.
IS Kennedy, 456 U.S. at 675-76.
6 Feb. 26, 2019 Defendant’s Cross/Recross-Examination Tr., at 12-13 (D.1. 52) (Prosecutor:

“[Defense counsel] asked you on direct examination about your conspiracy and your criminal
impersonation, right?”; Taylor: “Yes.”).
direct examination’? in contravention of long-settled Delaware law.'® The
prosecutor did this out of a failure to accurately understand (or perhaps even know
of) this limitation imposed by relevant case law.'? That decades-old case law is clear
and unambiguous. State’s counsel is charged with knowing the limits of permissible
inquiry; State’s counsel failed in this duty. Based on the record—which includes the
offending prosecutor’s admission of his unfamiliarity with the Delaware case
controlling this precise issue—it is clear to the Court that such failure was negligent,
perhaps even grossly negligent. But the Court finds the prosecutor’s carelessness
was not reflective of an intentional violation of Taylor’s rights aimed at provoking
a mistrial.

(6) In his use of the first person plural to refer to the prosecution/law
enforcement team,”’ the prosecutor risked giving the jury the impression he either
possessed undisclosed knowledge or capability or was due some earlier explanation

of Taylor’s defense.”'! This rhetorical flaw was met with prompt objection and

 

7 Feb. 26, 2019 Defendant’s Direct Examination Tr., at 9-10 (D.I. 51).

18 See Martin v. State, 346 A.2d 158, 160 (Del. 1975) (forbidding a prosecutor's cross-
examination questions that seeking merely to repeat impeachment for past criminal acts already
admitted on direct examination).

19 Feb. 27, 2019 Mistrial Motion Tr., at 13-14 (D.I. 42).

20 Feb. 26, 2019 Defendant’s Cross/Recross-Examination Tr., at 27 (D.I. 52)

1 The other risk in this specific context, of course, was that the “we” just now “hearing that
[self-defense] story” could be understood to include the jurors. /d. at 40. And even subtle attempts

to align counsel or his client with the jury are likewise inappropriate.

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correction on the record.” Many of the questions themselves were relevant and
probative, and in context the Court detected no motive to exert improper influence.
Through his phrasing the prosecutor’s clear intention was to give persuasive force
to a generally proper line of questioning, and not to invade Taylor’s protected rights

or provoke a mistrial. It was instead, the Court finds, intolerable inattention to proper

syntax.”

(7) Most serious was the questioning related to Taylor’s pre-trial silence. *4
The defense at trial, to the apparent surprise of the State, proceeded on a self-defense
theory. According to Taylor, he was the victim of an attempted shooting shortly
before he killed Aloysius. Taylor claims that—-because of something said by
Aloysius moments before the shooting—he, Taylor, formed the belief that Aloysius

was in some way responsible for that attempt and that he, Taylor, was acting in

reasonable fear for his own life and safety when he shot Aloysius.”°

 

22 Feb. 26, 2019 Defendant’s Cross/Recross-Examination Tr., at 26-27 (D.I. 52).

23 While there is no per se rule that the use of “I” or “we” is improper in argument or
questioning, a prosecutor must be very careful that use of such language neither slips into
statements of personal belief or knowledge nor creates other improper impressions. See Derose v.
State, 840 A.2d 615, 621 n.17 (Del. 2003); Cousins v. State. 2001 WL 1353571, *1 (Del. Nov. 2,
2001); see also Swan y. State, 820 A.2d 342, 356 (Del. 2002).

a4 Id. at 60.

25 Feb. 26, 2019 Defendant’s Direct Examination Tr., at 23-24 (D.I. 51).

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(8) | The State’s cross-examination aimed to impeach Taylor’s credibility by
highlighting his failure to report the earlier alleged shooting, as well as his
subsequent flight to Chattanooga, Tennessee. The State’s obvious intent was to
persuade the jurors to infer that Taylor failed to report the earlier shooting because
it never occurred, and that he fled to and remained in Tennessee out of consciousness
of his own guilt.

(9) The manner in which the State cross-examined Taylor failed to limit
inquiry to only those permissible subjects. Instead, certain of the State’s questions
drew clear attention to Taylor’s exercise of his right to remain silent after his arrest
in Tennessee.

(10) The State knew that Taylor’s post-arrest silence was constitutionally
protected.*”. When questioning Taylor about the permissible topic of his pre-arrest

flight and silence, the State had actual knowledge of the risk that an improperly

 

26 See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (‘[T]he Fifth Amendment is not
violated by the use of prearrest silence to impeach a criminal defendant's credibility.”) (emphasis
added); Robertson v. State, 41 A.3d 406 (Del. 2012) (discussing Delaware’s long recognition that
evidence of flight supports an inference that an accused fled out of consciousness of guilt); and
MacDonald v. State, 816 A.2d 750, 753 (Del. 2003) (permitting cross-examination of a testifying
defendant on pre-arrest silence and statements, and post-arrest statements, but not post-arrest
silence).

27 Feb. 27, 2019 Mistrial Motion Tr., at 19 (D.I. 42).

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phrased question might unduly trample on Taylor’s Fifth*® and Sixth”? Amendment
rights to silence between arrest and trial. By proceeding with actual knowledge of
this hazard, the State violated Taylor’s rights recklessly.

(11) But it is specific intent by the prosecution to cause a mistrial that the
Court must find in order for that resulting mistrial to bar retrial and mandate
dismissal.*° Merely because an act taken before the factfinder is so unfairly
prejudicial as to necessitate mistrial does not suffice to bar retrial, even when that
act was undertaken wrongfully by the prosecutor.*! Nothing less than the specific

intent*? to deny to the accused “the valued right to have his trial completed by a

 

* See Shantz v. State, 344 A.2d 245, 246 (Del. 1975) (“The State may not comment on a
defendant’s exercise of the constitutional right to remain silent.”).

29 At his arrest in Tennessee, in response to a query as to whether he would answer questions,
Taylor immediately declined. Feb. 27, 2019 Mistrial Motion Tr., at 30 (D.I. 42). Once he was
brought back to Delaware, authorities here asked again, and Taylor responded solely by naming
his attorney. /d. Questions suggesting an adverse inference from Taylor’s silence thus also
trammel upon his Sixth Amendment right to deal with the police only through counsel. Brown vy.
State, 947 A.2d 1062, 1068 (Del. 2007) (citing Michigan v. Jackson, 475 U.S. 625, 626 (1986)).

30 Sudler v. State, 611 A.2d 945, 948 (Del. 1992) (It is only “[w]here ‘the governmental
conduct in question is intended to ‘goad’ the defendant into moving for a mistrial ... [that] a
defendant [can] raise the bar of double jeopardy to a second trial after having succeeded in aborting
the first on his own motion.””) (quoting Kennedy, 456 U.S. at 676).

a Kennedy, 456 U.S. at 675.

32 See United States v. Gilmore, 454 F.3d 725, 730 (7th Cir. 2006) (“[T]he element of intent
is critical and easily misinterpreted, ‘the fact that the government blunders at trial and the blunder
precipitates a successful motion for a mistrial does not bar a retrial.”) (quoting United States v.
Oseni, 996 F.2d 186, 188) (7th Cir. 1993)); United States v. Pavloyians, 996 F.2d 1467, 1469 (2d
Cir. 1993)([T|he misconduct must have been undertaken with the deliberate purpose of depriving
the defendant of double jeopardy’s shield, that is to say, only a high-handed wrong intentionally

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particular tribunal” suffices.*> And here “[iJt is [Taylor]’s burden to prove that the
prosecutor acted with intent to provoke a mistrial.”**

(12) Because intent must almost always be inferred from the specific
objective evidence before the Court, its determination is not readiliy amenable to
bright-line rules or exhaustively enumerated tests. Citing both prior Delaware cases
and those of other jurisdictions as persuasive examples, this Court has had occasion
to identify some useful factors that bear mention.*? Those include: whether there
was a sequence of overreaching conduct; whether the prosecutor resisted or was
surprised by the mistrial motion; whether the prosecution’s case was going well; and
the prosecutor’s level of expertise.*°

(13) In this case, the conduct Taylor claims was provocative of mistrial was
confined to the cross-examination and re-cross of Taylor himself as a fact witness.

Throughout the trial to that point, there is nothing the Court (or Taylor) can identify

as “overreaching.” It was only in Taylor’s cross- and re-cross-examininations, that

 

directed against [a] defendant’s constitutional right will trigger his right not to be twice put in
jeopardy for the same offense.”’).

8 Wade v. Hunter, 336 U.S. 684, 689 (1949).
34 Sullins, 930 A.2d at 916.
3 State v. McCoy, 2016 WL 7229893, at *4 (Del. Super. Ct. Dec. 14, 2016).

36 Td.
the State committed the noted series of errors: use of the first person plural pronoun;
gratuitous reiteration of Taylor’s past convictions; and clumsy references to his post-
arrest silence. This may well be described as a short—but serious*’—episode of
prosecutorial neglect or ineptitude, but the Court does not find this series of errors
constitutes an intentional (or even knowing) pattern of overreaching behavior.

(14) The State’s resistance to the mistrial is likewise telling. From the
Court’s observations, the State was vigorous and sincere in its opposition to Taylor’s
request for a mistrial.

(15) The purpose of the strength-of-case factor derives from the inference
that a prosecutor may desire to cause a mistrial 1f weaknesses were exposed in the
case that could be remedied on re-trial.** These can include failure of witnesses to
appear, confrontation of the State’s witnesses with previously unknown

impeachment material, or simply an unpersuasive deportment of a critical witness.

 

37 After all, it did result in the extreme remedy of a mistrial. Steckel v. State, 711 A.2d 5, 11
(Del. 1998) (quoting Fanning v. Superior Court, 320 A.2d 343, 345 (Del. 1974)) (“A trial judge
should grant a mistrial only where there is “manifest necessity’ or the ‘ends of public justice would
be otherwise defeated.’”); Smith v. State, 963 A.2d 719, 722 (Del. 2008) (quoting Dawson v. State,
637 A.2d 57, 62 (Del. 1994)) (“The remedy of a mistrial is ‘mandated only when there are ‘no
meaningful and practical alternatives’ to that remedy.*”).

38 See State v. Morris, 2002 WL 31520508, *3 (Del. Super. Ct. Oct. 16, 2002) (“[W]hether it
be to gain advantage in a second trial or merely harassment, if the Court finds the State
intentionally caused the defense to seek a mistrial, then that subverting of justice requires thal
double jeopardy bar future prosecution.”); see also, Oseni, 996 F.2d at 187-88 (citing Kennedy,
456 U.S. at 676, 679) (“If after a criminal trial begins the government decides that the case is going
badly for it... it cannot engage in trial misconduct that ts intended to and does precipitate a
successful motion for mistrial by the defendant.”).

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From the Court’s position and observations, none of these factors were apparent.
The State’s case prior to cross-examining Taylor appeared fully developed and to
have proceeded without incident. The Court does not perceive, and Taylor does not
persuasively suggest,’ any real advantage to a second trial which could have
motivated intentional conduct to obtain one.

(16) Experience is a factor indicative of prosecutorial intent, because it tends
to negate the alternative explanation of a mistake.*” That said, an act cannot be
intentionally provocative of mistrial when the actor doesn’t even recognize that it
might justify mistrial. The prosecutor credibly confessed his failure to understand
the Martin limitation*' and admitted his other verbal fumbles. These failures might
be disillusioning, and the violations neither justifiable nor excusable, but the Court
is convinced they were not intentional acts aimed at forcing a mistrial. The offending
prosecutor has been employed by the Department of Justice’s Criminal Division for

at least a decade.” And the Court may have been (and is) dismayed by his failure

 

39 Motion to Dismiss Indictment, at 934 (Taylor suggests the State now knows his trial
strategy and has “a more favorable opportunity to rebut [his] claim of self-defense”).

40 See State v. Long, 1992 WL 207258, *3 (Del. Super. Ct. Jul. 23, 1992) (“No experienced
Prosecutor could have taken the above described course of action without knowing . . . he or she
forced the Defendant into seeking a mistrial.”).

4 See n.19, supra.

v E.g. State v. Pustolski, 2009 WL 10212727 (Del. Super. Ct. Nov. 30, 2009) (prosecutor's
appearance entered as second chair in vehicular manslaughter) (Brady. J.); State v. Maniscalco,
2010 WL 2006575 (Del. Super. Ct. May 19, 2010) (prosecutor’s appearance noted as sole counsel
in robbery case) (Johnston, J.).

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to recognize and reckon with long-established principles of Delaware criminal law.”
But the Court credits the prosecutor’s representation that he acted in error despite
his experience because of his sincere deportment and the Court’s firsthand
observation of the trial events as they unfolded.

(17) Taylor bears the burden of proving to the Court as fact finder that
mistrial was the prosecutor’s intent.*4 Case law exploring how courts determine a
prosecutor’s motives is relatively sparse as related to Kennedy dismissal motions.
But it is an area well-explored in the Batson** line of cases*® investigating
prosecutors’ motivations for exercising preemptory challenges in jury selection. At
bottom, when a prosecutor’s intent behind certain trial behavior is at issue, the law

relies heavily on the trial judge due to his her experience, proximity, and discretion.””

 

8 See, e.g., Feb. 27, 2019 Mistrial Motion Tr., at 13-14 (D.I. 42).
“4 United States vy. Borromeo, 954 F.2d 245, 247 (4th Cir. 1992).

a Batson v. Kentucky, 476 U.S. 79 (1986).

46 Delaware courts have adapted a number of lines of inquiry from well-reasoned cases
applying Batson in the Second and Tenth Circuits. Srate v. Jones, 2007 WL 2142917, *2 (Del.
Super. Ct. 2007).

"7 See Batson, 476 U.S. at 97; Hernandez v. New York, 500 U.S. 352, 365 (1991) (“Delerence

to trial court findings on the issue of discriminatory intent makes particular sense in this context
because. as we noted in Batson, the finding will ‘largely turn on evaluation of eredibility.””).

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The trial judge is in the best position*® to determine whether a prosecutor’s
explanation of or excuse for his or her acts is contrived or authentic.*?

(18) The prosecutor’s actions, taken as a whole, demonstrated rhetorical
sloppiness, a careless disregard for key Constitutional rights which he knew were
potentially implicated by his questioning, and frank noncomprehension of well-
established Delaware case law. These errors were inexcusable. But, based on the
Court’s observations of the circumstances as a whole, they were not engaged with
an intent to end Taylor’s first trial before verdict. The State did not deliberately
induce a mistrial to obtain a second (and better) shot upon retrial. As such, the
extraordinary remedy of barring retrial and dismissing the indictment is

unwarranted.*’ And so, Bobby Taylor’s Motion to Dismiss his Indictment must be

DENIED.
SO ORDERED this 20th day of September, 2019.

 

 

Paul R. Wallace, Judge

 

“ Robertson vy. State, 630 A.2d 1084, 1090 (Del. 1993); Jones v. State 940 A.2d 1, 7-8 (Del.
2007) (remanding to the Superior Court to conduct an “assessment of the credibility of the
prosecutor’s position”).

” See Hernandez v. New York, 500 U.S. 352, 369 (1991) (quoting Anderson v. Bessemer City,
470 U.S. 564, 574 (1985)) (noting it is the trial court that must distinguish between multiple
possibilities for an prosecutor’s behavior where each is a permissible view of the evidence
presented); McCoy v. State, 112 A.3d 239, 253 (Del. 2015).

*~ Barring retrial would in effect render the mistrial a dismissal with prejudice due to

prosecutorial misconduct. That is an “extreme,” “extraordinary,” and “draconian” remedy rarely
called for. See State v. Robinson, 209 A.3d 25, 56 (Del. 2019).

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Original to Prothonotary

ce: Eugene J. Maurer, Jr., Esquire
Elise K. Wolpert, Esquire
Matthew B. Frawley, Deputy Attorney General
John S. Taylor, Deputy Attorney General

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