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State v. Gibbs

Superior Court of Delaware

December 9, 2019

NEKI GIBBS, Defendant.

          Submitted: September 4, 2019

         Upon Consideration of Defendant's Motion in Limine, DENIED.

          Daniel McBride, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

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




         Defendant Neki Gibbs ("Defendant") faces charges for Murder First Degree, [1]and Criminal Mischief[2] related to two separate shooting incidents. He files this Motion in Limine under Superior Court Criminal Rule 16(a)(1)(E) and D.R.E 702 and 703 and challenges the admissibility of the State's ballistic evidence that seeks to connect both incidents.[3] The Court finds that the State has met its burden in showing by a preponderance of the evidence that the expert testimony is admissible. Although Defendant's Motion in Limine is denied, the Court agrees to place limitations on the opinions offered by the ballistic evidence expert.


         On January 30, 2018, the Newark Police Department received a complaint for a shots fired in the area of 100 South Chapel Street ("Newark Incident").[5] On February 5, 2018, the Wilmington Police Department responded to a home at 2230 Lamotte Street in Wilmington, Delaware and discovered the bodies of two victims ("Wilmington Incident").[6] Both died from gunshot wounds.[7] Six spent 9 mm shell casings, three spent projectiles and four live rounds of 9mm ammunitions were recovered from the scene of the Wilmington Incident.[8] On September 10, 2019, Defendant was indicted for Murder First Degree as to the Wilmington Incident, [9] and Criminal Mischief as to the Newark Incident.[10]

         On November 24, 2018, the State submitted its initial discovery regarding its intended ballistic expert.[11] On March 18, 2019, the State submitted a letter indicating that it was going to "call a firearms and tool mark examiner to testify as an expert[.]"[12] In May 2019, the State sent documents related to ballistics found at both Newark and Wilmington scenes.[13] In its discovery, the State included that its expert Robert Freese ("Freese") would offer opinion regarding two "NIBIN hits."[14]On May 30, 2019, the State received a letter from Defense counsel asking for an expert report for a comparison of toolmarks from the two different incidents.[15] On June 27, 2019, the State submitted an email indicating that a "NIBIN hit is the same as the other [expert] reports, just in a different format."[16]

         On August 9, 2019, Defendant submitted a Motion in Limine to exclude the State's expert evidence, produced by Freese, connecting the Wilmington and Newark Incidents.[17] On September 4, 2019, the State filed its Response in Opposition to Defendant's Motion in Limine.[18]


         The Court acts as a gatekeeper regarding the admissibility of expert testimony.[19]The trial judge determines "whether the proponent of the evidence has demonstrated that scientific conclusions have been generated using sound and reliable approaches."[20] Delaware Rule of Evidence 702 governs the admissibility of expert testimony, providing that an expert witness "may testify ..., if (1) 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."[21] The party introducing expert testimony must "demonstrate by a preponderance of the evidence that their opinions are reliable."[22]In determining "whether an expert has a reliable basis in the knowledge and experience of the relevant discipline, "[23] this Court applies the Daubers standard. If the Court finds that expert testimony satisfies Rule 702 as interpreted under Daubert, [24] "cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking ... admissible evidence."[25]


         Defendant argues that a NIBIN hit is not an expert report within the meaning of relevant evidentiary rules and has not been peer reviewed nor supplemented with provision of error rates.[26] The State maintains that NIBIN hits are "the product of a manual examination conducted by the State's expert, "[27] stemming from a "manual[] [comparison] by the expert . . . using the identical methodology as any other comparison ... ."[28] The State further emphasizes that such methodology "is the only method used by the Firearms and Tool Mark examiners at the Delaware State Police Forensic Firearms Services Unit."[29]

         In State v. Phillips, [[3]] the Superior Court considered this issue and found the methodology of the Association of Firearm Toolmark Examiners ("AFTE")[31]reliable under Daubert[32] In making this finding, the Court also discussed the use of the NIBIN system and its role in firearm and toolmark examinations.[33] Furthermore, in McNally v. State[34] our Supreme Court concluded that it could not "find plain error [in the admission of expert testimony] because [the expert] did explain his principles and methodology and applied those principles and methods to the facts."[35] Here, the State proffers that its expert will do the same.

         The Court finds that where the State's expert testimony is based on methodology previously held reliable under Daubert, the State has demonstrated by a preponderance of the evidence that the proposed expert testimony is reliable.[36]Following similar considerations under McNally[37] and Phillips[38] the State will have the opportunity to introduce evidence that suggests a nexus between both shootings. Defendant may challenge the evidence through cross-examination.

         Although admissible, the State concedes that its expert should not testify to being "100% certain as to his findings."[39] Therefore, limitations are appropriate. Defendant agrees that the expert should not testify as to the certainty of his findings but further asks that the expert's report delete any references to "match or identification."[40] The State wishes to use the terms "identification" and "match."[41]At this juncture, the Court is not precluding the expert from using words such as "match" and "identification." Both sides are invited to submit supplemental materials on the issue regarding the use of the term "match" or similar terminology but, at this stage, no authority is before this Court to support that the terms must be precluded in the context of ballistic evidence. Although AFTE methodology "is generally accepted among professional examiners as a reliable method of firearms and toolmark identification, "[42] current trends in case law[43] suggest that courts are limiting the expert testimony in this area. Experts have been precluded from testifying: (1) they are "certain" or "100%" sure of their conclusions that two items match, (2) there is a match to "the exclusion of all other firearms in the world," or (3) it is a "practical impossibility" that any other gun could have fired the recovered materials.[44] Based on the trend in case law, [45] the Court agrees that where "the process by which a firearms examiner declares a 'match' remains inherently subjective, "[46] and where the State agrees that the expert is not to testify with "100%" certainty, the State's expert testimony will be limited, accordingly.

         The expert is precluded from testifying to being 100% certain as to his findings.

         If he testifies to a "match," the expert may not testify to conclusions that suggest there is a match to "the exclusion of all other firearms in the world," or that it is a "practical impossibility" that any other gun could have fired the recovered materials. He may not testify within a reasonable degree of "scientific" certainty and may not state his ...

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