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State v. Taylor

Superior Court of Delaware

September 3, 2019

BOBBY TAYLOR, Defendant.

          Submitted: September 3, 2019

          Written Decision Issued: September 20, 2019

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


          Paul R. Wallace, Judge.

         This 20th 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[1] at the car detailing business where they both worked.[2]

          (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;[3] personalized the prosecution team and law enforcement through repeated use of the collective "we";[4] and asked questions suggesting adverse inferences from Taylor's exercise of his right to remain silent between his arrest and trial.[5] Based thereon, Taylor moved for a mistrial. The Court granted that application the next day.[6]

         (3) Taylor now moves to dismiss his indictment claiming that retrial would constitute double jeopardy.[7] As the State seeks a new trial of his murder and firearms charges, [8] this claim is ripe for decision.[9]

          (4) When a criminal defendant moves for a mistrial, the Double Jeopardy Clauses of the United States[10] and Delaware[11] Constitutions bar retrial only when the mistrial was intentionally provoked by the State.[12] This is a "narrow exception" to the general rule permitting retrial.[13] When applying this narrow exception the Court as fact finder[14] may infer intent.[15]

         (5) In its cross-examination of Taylor regarding his prior criminal convictions, the State just reiterated[16] that which had already been fully elicited on direct examination[17] in contravention of long-settled Delaware law.[18] The prosecutor did this out of a failure to accurately understand (or perhaps even know of) this limitation imposed by relevant case law.[19] 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, [20] 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.[21] This rhetorical flaw was met with prompt objection and correction on the record.[22] 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.[23]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.[24]

         (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.[25]

         (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.[26] 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 phrased question might unduly trample on Taylor's Fifth[27] and Sixth[28] 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.[29] 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.[30] Nothing less than the specific intent[31] to deny to the accused "the valued right to have his trial completed by a particular tribunal" suffices.[32] And here "[i]t is [Taylor]'s burden to prove that the prosecutor acted with intent to provoke a mistrial."[33]

          (12) Because intent must always be inferred from the specific objective evidence before the Court, its determination is not 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.[34] 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.[35]

         (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 the State committed the noted series of errors: use of the first person plural pronouns; 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[36]- episode of prosecutorial neglect or ineptitude, but the Court does not find this series of errors to 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 relates to the inference that a prosecutor may desire to cause a mistrial if weaknesses were exposed in the case that could be remedied on re-trial.[37] 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. 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, [38] 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.[39] That said, an act cannot be intentionally provocative of mistrial when the actor doesn't even recognize that it justifies mistrial. The prosecutor credibly confessed his failure to understand the Martin limitation[40] 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.[41] And the Court may have been (and is) dismayed by his failure to recognize and reckon with long-established principles of Delaware criminal law.[42] But the Court credits the prosecutor's representation that he acted in error despite his experience because of his sincerity of 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.[43] Case law exploring how courts determine a prosecutor's motives is relatively sparse as related to Kennedy dismissal motions. But it an area well-explored in the Batson[44] line of cases[45] investigating prosecutors' motivations for exercising preemptory challenges in jury selection. In sum, when a prosecutor's intent behind certain trial behavior is at issue, the law relies heavily on the trial court due to its experience, proximity, and discretion.[46] The trial court is in the best position[47] to determine whether a prosecutor's excuse for his or her act is contrived or authentic.[48]

         (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 at no time sought to deliberately induce a mistrial. As such, the extraordinary ...

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