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State v. McMullen

Superior Court of Delaware, Sussex

January 3, 2020

State
v.
A. J. McMullen

          David Hume, IV, Esquire, Georgia C. Pham, Esquire, Department of Justice.

          John P. Daniello, Esquire, Michael A. Capasso, Esquire, Office of the Public Defender.

         Dear Counsel:

         This is my decision after the bench trial of defendant A. J. McMullen.

         The Charges

         The Defendant is charged with:

(1) Murder in the First Degree; and
(2) Possession of a Firearm During the Commission of a Felony.

         These charges relate to the murder of Darrin Gibbs on November 16, 2016.

         The Witnesses

         1. Michelle Wolf-Wolf is a nurse who was driving to her home in Millsboro when she saw Darrin lying on his stomach on West Monroe Street. Wolf was the first known person on the scene and testified about what she saw.

         2. Stephen Schroeck-Schroeck is a Delaware correctional officer who was on his way home and pulled up behind Wolf, who was stopped in the roadway. Schroeck testified about what he saw.

         3. Delaware State Police Detective Mark Csapo - Detective Csapo is a detective in the homicide unit of the Delaware State Police. Detective Csapo was the lead investigator and he testified about his investigation.

         4. Delaware State Police Officer Roger Cresto - Officer Cresto is a crime scene investigator in the homicide unit of the Delaware State Police. Officer Cresto testified about evidence that he recovered at the i scene and from Damn's autopsy.

         5. Keshawn Gibbs - Keshawn Gibbs is also known as "Geek" or "Geeker." Keshawn Gibbs knew Darrin and Kenton Williams very well. Keshawn Gibbs was Damn's first cousin and he had known Darrin his whole life. Keshawn Gibbs grew up with Kenton Williams, attended school with Kenton Williams, partied with Kenton Williams, and lived in the same neighborhood as Kenton Williams. Keshawn Gibbs did not know the Defendant well, testifying he had only met the Defendant one time before Darrin's murder. Keshawn Gibbs testified about a rumor that Darrin, Kenton Williams and the Defendant had robbed a drug dealer and a conversation he had with Kenton Williams and the Defendant about it.

         6. Ashley Donaway - Ashley Donaway was in a "friends with benefits" relationship with Kenton Williams. Ashley Donaway testified about the day of November 16, 2016, which included spending the evening partying with Kenton Williams in a room at the Classic Motel in Georgetown, Delaware, the three trips she took with Kenton Williams to go to the Millsboro Village Apartments, and a trip she took the next day to a motel in Seaford where she saw Kenton Williams and the Defendant. The first trip to the Millsboro Village Apartments was to get "Little Bro's" clothes. The second trip to the Millsboro Village Apartments was to get "Little Bro." The third trip to the Millsboro Village Apartments was to take Kenton Williams there so that he could get a green box car. Ashley Donaway also testified about (1) seeing Kenton Williams and "Little Bro" in a motel by the Arby's in Seaford the next day, (2) seeing Kenton Williams and "Little Bro" leave the motel in a green box car and go to the Millsboro Village Apartments, (3) driving herself from Seaford to the Millsboro Village Apartments, (4) taking Kenton Williams back to the motel in Seaford and checking out, (5) seeing Kenton Williams go to a residence and recover a duffle bag from a shed, and (6) seeing the contents of the duffle bag. Ashley Donaway did not know the Defendant and did not know who "Little Bro" was, but she told Detective Csapo that "Little Bro" also went by "South" and lived in the Millsboro Village Apartments with his girlfriend who has a green car.

         7. Mahifal Sinh-Surubha - Sinh-Surubha is an assistant manager at the Classic Motel in Georgetown, Delaware. Sinh-Surubha had a document showing that Ashley Donaway rented a room at the Classic Motel on November 16, 2016.

         8. Detective David Mover - Officer Moyer is a Millsboro Police Officer and he was the first police officer on the scene of Damn's murder. Moyer testified about what he saw.

         9. Billie Jo Elliott - Elliott is the property manager at the Millsboro Village Apartments. Elliott testified about the video at the apartments.

         10. Robert Legates - Officer Legates is a Millsboro Police Officer who recovered the video for November 16, 2016 for the Millsboro Village Apartments. Legates also testified about the layout of the nine buildings in the apartment complex.

         11. Kenton Williams - Kenton Williams is also known as "Meatball." Kenton Williams and Darrin were friends who had known each other for over 10 years. Kenton Williams and Darrin hung out together and engaged in criminal acts together. Kenton Williams also knew the Defendant and, according to the Defendant's girlfriend, was one of the Defendant's few close friends in Delaware. Kenton Williams testified (1) about he and the Defendant robbing a drug dealer named "Cos," (2) meeting with the Defendant and Keshawn Gibbs to discuss the robbery, (3) spending the night with Ashley Donaway at the Classic Motel on November 16, 2016, (4) the three trips he and Ashley Donaway took to the Millsboro Village Apartments that night, (5) going to the Millsboro Village Apartments on the third trip to get the Defendant's girlfriend's green Scion and taking it back to the Classic Motel, (6) taking the Defendant to the Super 8 Motel in Seaford the next day and the Defendant throwing a black bag with a gun in it over the side of a bridge, and (7) hiding and recovering the duffle bag and its contents that he had gotten from the Defendant on the first trip that he and Ashley Donoway made to the Millsboro Village Apartments. Kenton Williams identified the three men leaving the Millsboro Village Apartments at approximately 11:37 p.m. as Albert Green, Darrin and the Defendant, and the two men returning to the Millsboro Village Apartments at 11:55 p.m. as Albert Green and the Defendant. Kenton Williams also testified that the Defendant told him that Albert Green was with the Defendant when the Defendant murdered Darrin. Kenton Williams also testified about admissions the Defendant made to him regarding Darrin's murder. These admissions included the Defendant telling Kenton Williams that (1) "he"- meaning Darrin - "has gotta go," (2) that "I did it for the both of us," and (3) that he dropped a bullet at the scene of Damn's murder.

         12. Albert Green - Green is known as "LT." Green had known Darrin for about a year and the Defendant for a couple of months. Albert Green testified about the evening of November 16, 2016. Albert Green testified that he, Darrin and the Defendant left the Millsboro Village Apartments to go see Darrin's people to buy drugs. They walked in the direction of where Darrin was later found. Albert Green broke off from Darrin and went to the Brandy wine Apartments to buy some weed. Albert Green came out of the Brandywine Apartments and met up with the Defendant and went back to the Defendant's girlfriend's apartment in the Millsboro Village Apartments. Albert Green identified the men on the video at 11:37 p.m. as himself, Darrin and the Defendant, and on the video at 11:55 p.m. as himself and the Defendant. Albert Green denied being present when Darrin was murdered.

         13. Terry Toomey - Toomey is an inmate at the Sussex Correctional Institution. Toomey and the Defendant were cellmates for two to three weeks in 2017. Toomey testified that the Defendant told him that he shot "Gank" in the back of the head by the baseball field in Millsboro.

         14. Keith Collins - Officer Collins is in the evidence unit at the Delaware State Police. Collins testified about taking a small black handbag with a gun in it from a scuba diver who had just recovered it from Williams Pond on June 7, 2018.

         15. Joshua Riley - Officer Riley is a detective in the Delaware State Police intelligence unit. Officer Riley is also a member of the Delaware State Police scuba team. Officer Riley testified about finding a black bag with a handgun in it in seven feet of water by a small bridge over Williams Pond in Seaford.

         16. Nick Leno - Officer Leno is a detective with the Delaware State Police Forensic Firearm Services Unit. Officer Leno testified about receiving the unflred bullet and fired shell casing recovered from the scene, the fired bullet and fragments recovered from Damn's head, and the black bag and handgun recovered from Williams Pond.

         17. James Cadigan - Cadigan is a firearms and toolmark examiner with the Delaware State Police Forensic Firearms Support Unit. Cadigan testified that the fired shell casing recovered from the scene was fired from the gun recovered from Williams Pond and that he could not rule one way or the other whether the fired bullet recovered from Damn's head was or was not fired from the gun.

         18. Shernell Perry - Shernell Perry was the Defendant's girlfriend. The Defendant called her "Moca" or "Nell." Shernell Perry had exchanged letters with the Defendant for two and a half to three years while he was incarcerated in North Carolina. Shernell Perry visited the Defendant for nine to ten months while he was in North Carolina. Eventually, the Defendant came to stay with Shernell Perry at the Millsboro Village Apartments. Shernell Perry testified about (1) seeing Darrin, Albert Green and the Defendant in the breezeway outside her apartment on the evening of November 16, 2016, (2) having an argument with the Defendant later that night about men hanging around her apartment with the Defendant and the Defendant drinking and partying, (3) the Defendant packing a black duffle bag with clothes to leave her apartment, (4) Kenton Williams coming to pick up her green Scion to take the Defendant away, (5) the Defendant telling her that "I killed him," and "I did it to that boy," meaning Darrin, and (6) the Defendant telling her that if Kenton Williams took the Defendant to North Carolina, Kenton Williams would not be coming back. Shernell Perry also testified about Kenton Williams sending his cousin over to her apartment to recover stolen drugs.

         19. Nicholas Potter - Potter is a correctional officer who lived in Houston Acres, which is near where Darrin was killed. Potter testified about a man named "JR," who is James Lewis, telling him that the man who got killed had stolen $500 from someone that morning who threatened to kill him.

         20. Katie Kilian - Kilian lived with Nicholas Potter and offered similar testimony as Potter about what "JR" said.

         21. Jennie Vershovsky. M.D. - Dr. Vershovsky performed the autopsy on Darrin. Dr. Vershovsky did not testify. Instead, the parties stipulated to the admission of her autopsy report into evidence.

         The Scene

         Darrin Gibbs, a 30-year-old male, was found by a motorist on her way home from work lying on his stomach with his face to his side on West Monroe Street near its intersection with Houston Street in Millsboro, Sussex County, Delaware, at approximately 11:50 p.m. on November 16, 2016. Damn's hands were still in his pockets and he appeared to be dead from a gunshot wound to the back of his head. No one else was around. The motorist called 911 and the police arrived within minutes. Darrin was also known as "Gank" or "Gankster." Houston Acres and the Mill Chase Apartments are near the scene. The Millsboro Village Apartments are .6 of a mile away. The Defendant lived with his girlfriend, Shernell Perry, at the Millsboro Village Apartments.

         Items ...


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