State v. Handy

• Court: Superior Court of Delaware
• Decided: January 7, 2026
• Docket: 2311012713
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. No. 2311012713 ) JEREMIAH HANDY, ) ) Defendant. ) )

OPINION AND ORDER

Submitted: October 24, 2025 Decided: January 7, 2026

Kevin Gardner, Deputy Attorney General, Department of Justice, Georgetown, Delaware, Attorney for the State of Delaware.

Shae Woodburn, Deputy Attorney General, Department of Justice, Georgetown, Delaware, Attorney for the State of Delaware.

Stephen Welsh, Esquire, Gill, Welsh & Chamberlain, Georgetown, Delaware, Attorneys for Defendant.

CONNER, J FACTUAL AND PROCEDURAL BACKGROUND

Jeremiah Handy (“Defendant”) is charged with Murder First Degree,

Attempted Murder First Degree, Possession of a Deadly Weapon During the

Commission of a Felony (two counts), and Possession of a Deadly Weapon by a

Person Prohibited.1 Defendant brings two issues before the Court. First, Defendant

asks the Court to dismiss the indictment due to prosecutorial misconduct.2 If the

Court does not dismiss the indictment, Defendant asks the Court to order the

disclosure of the Grand Jury transcript.3 Second, Defendant asks the Court to grant

the Motion in Limine to exclude the State’s expert, Senior Corporal Smith (“Cpl.

Smith”), from testifying at trial.4

In the early morning of November 24, 2023, Gabriel Dorman and Ryan

Wilkerson arrived at Defendant’s residence according to the ring camera footage

from the Handy residence. Driving a 2010 Honda ATV, Dorman and Wilkerson stop

and throw an object through the window of Defendant’s home.5 Dorman and

Wilkerson then leave the Handy’s residence and drive away. Defendant entered his

2020 Mercedes-Benz SUV and left his residence. Shortly thereafter, Dorman and

Wilkerson returned to the Handy’s residence and threw a second object at the home.6

1 Def.’s Mot. to Dismiss, D.I. 86, at ¶ 1. 2 Id. ¶ 93. 3 Id. ¶ 94. 4 Def.’s Suppl. to Mot. in Lim., D.I. 87, at 1. 5 Id. ¶ 30. 6 Id. 2 Dorman and Wilkerson then drove through the Handy’s front lawn and onto the

roadway with the headlights off. Seconds later, Defendant’s vehicle, while traveling

at 97 miles per hour, collided into the rear of the ATV.7 Dorman was ejected from

the ATV. His body came to rest approximately 334 feet from the point of impact.8

Dorman succumbed to his injuries at the scene. Wilkerson was transported to the

Christiana Hospital with multiple injuries.

DISCUSSION

I. THE MOTION TO DISMISS

As mentioned above, Defendant asks the Court to dismiss the indictment. If

the Court does not dismiss the indictment, Defendant asks the Court to order the

release of the Grand Jury transcript.

The Court DENIES the Motion to Dismiss because the State’s conduct, though

not condoned by the Court, does not rise to the level of misconduct that warrants

dismissal. Defendant fails to cite any case law that supports dismissing the present

case due to prosecutorial misconduct. The State, on the other hand, cited several

cases supporting the denial of the Motion.

In the case, State v. MacColl, the Court held that an indictment will not be

dismissed unless it “does not provide notice or allow for a defense or otherwise is

7 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 2. 8 Id. ¶ 2. 3 legally deficient.”9 Furthermore, the Court found that “[u]nless there is a stipulated

record, or unless immunity issues are implicated, a pretrial motion to dismiss an

indictment is not a permissible vehicle for addressing the sufficiency of the

government’s evidence.”10 Factually, State v. MacColl is different from the case at

hand. In MacColl, a police officer sought the dismissal of an indictment and the

exclusion of statements he made during an incriminating interview, because his

statements were made under penalty of termination and protected. The Court denied

the motion, stating that the defendant was not entitled to the privileges he claimed.

In the present case, the State argues that Defendant has not met the burden to dismiss

the indictment because Defendant has not cited to any flaws in the indictment that

fail to provide notice, allow for a defense, or is otherwise legally deficient.11

In State v. Taylor, the defendant was convicted of Murder First Degree, Gang

Participation, two counts of Reckless Endangerment, Possession of a Firearm During

the Commission of a Felony, two counts of Aggravated Menacing, and Assault First

Degree.12 He appealed his conviction. The Supreme Court reversed the conviction

and remanded the case for a new trial.13 The defendant filed a motion to dismiss his

indictment because a new trial would violate the Double Jeopardy Clause of the

9 2022 WL 2388397, at *2 (Del. Super. Ct. 2022), aff'd, 312 A.3d 674 (Del. 2024). 10 Id. 11 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 17. 12 State v. Taylor, 2022 WL 2374299, at *1 (Del. Super. Ct. 2022)(quoting State v. Robinson, 209 A.3d 25, 59 (Del. 2019)). 13 Id. 4 Delaware Constitution due to alleged prosecutorial misconduct in a pretrial

hearing.14 The Court denied the defendant’s motion.15 The Supreme Court

determined that dismissal of an indictment is inappropriate where “[a] remedy less

severe than dismissal” would ensure the defendant's “right to a fair trial [is]

protected.”16 Any relief “should be tailored to the injury suffered and should not

unnecessarily infringe upon society's competing interest in the administration of

criminal justice.”17 The Court found that even if prosecutorial misconduct were

found, the indictment would not be dismissed.18 A new trial is the appropriate relief,

which has already been afforded to the defendant.19 In the present case, the State

argues that Defendant has not established that he suffered prejudice that would affect

his future trial date.20

The most notable case cited by the State is State v. Robinson, where the Court

found that even though the State committed prosecutorial misconduct, the

misconduct did not warrant the dismissal of the indictment.21 Without obtaining a

search warrant, the State searched and seized all documents from the defendant’s

14 Id. 15 Id. 16 Id. at *6 (quoting Robinson, 209 A.3d at 59). 17 Id. (quoting Bailey v. State, 521 A.2d 1069, 1084 (Del. 1987)). 18 Id. 19 Id. 20 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 37. 21 Robinson, 209 A.3d at 60. 5 cell.22 The State then examined each letter, which contained privileged attorney-

client communications and the defendant’s own personal notes regarding trial

strategy.23 Although a clear Sixth Amendment violation, the Court found that even

though they do not condone the State’s misconduct, the Court must “carefully

balance the competing interests of protecting the constitutional rights of defendants

against the competing interests of all Delaware citizens (including victims and their

families) in the administration of criminal justice.”24 Dismissal is the most extreme

remedy, and a less extreme remedy can be implemented to ensure the defendant has

a fair trial.25 The State deliberately violated the defendant’s Sixth Amendment right

and the defendant suffered actual prejudice as a result of the violation.26

Nonetheless, the Court found that dismissal of the indictment was not warranted.

In the present case, Defendant alleges prosecutorial misconduct because the

investigation was “conducted in a manner in which crucial evidence was either

negligently ignored, edited/sanitized, and/or misrepresented in an effort to support

the initial rush to judgment.”27 First, Defendant argues that the State misled the

Court about the evidence from the Mercedes Air Bag Control Module.28 In response

22 Id. at 29. 23 Id. 24 Id. at 59. 25 Id. 26 Id. at 60. 27 Def.’s Mot. to Dismiss, D.I. 86, at ¶ 20. 28 Id. ¶ 21-36. 6 to a motion to modify bond, the State represented that there was no evidence of

braking on the Airbag Control Module.29 However, the Airbag Control Module

shows that at -0.5 and at 0.0, the Service Brake Activation was on.30 Additionally,

Defendant’s speed dropped from 101 miles per hour to 97 miles per hour.31

Nevertheless, the State continued to represent to the Court that Defendant did not

brake prior to the collision. Defendant argues this conduct violates Rule 3.8(d)(1)

of the Delaware Professional Conduct, a rule that requires prosecutors to disclose all

evidence necessary to negate the guilt of the accused.32 Defendant argues that the

State also violated Rule 3.3(1) of the Delaware Professional Rules of Conduct, which

states that a lawyer shall not make a false statement of fact or law to a tribunal.33

Defendant further alleges that the State’s misrepresentation is a Brady violation.34

In response to Defendant’s argument, the State concedes that the Airbag

Control Module shows that the brakes were applied 0.5 seconds prior to impact.35

However, the State argues that the anti-lock brakes were not activated, which shows

there was no “hard” braking.36 Defendant’s speed dropped from 101 miles per hour

29 Id. ¶ 21, 23. 30 Id. ¶ 29-30. 31 Id. ¶ 30. 32 Id. ¶ 32. 33 Id. ¶ 34. 34 Id. ¶ 35. 35 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 35. 36 Id. ¶ 36. 7 to 97 miles per hour in a 25 miles per hour zone.37 Therefore, the State argues that

there was no prosecutorial misconduct.38 Furthermore, Defendant did not suffer

prejudice because the Court lowered Defendant’s bond and Defendant has since been

released while trial is pending.39

Defendant also alleges that the State violated several provisions of the

Delaware Code.40 First, 11 Del. C. § 8402(A) and 1 Delaware Administrative Code

§ 801-26.0 require officers to wear a body-worn camera while on duty and in a role

likely to encounter the public. Section 201-26.4 of the Delaware Administrative

Code states that the body-worn camera shall be activated to record contacts with

citizens during the performance of duties. Section 201-26.11 of the Delaware

Administrative Code outlines that officers shall not edit body-worn camera footage.

Lastly, 1 Delaware Administrative Code § 801-26.6 and § 801-26.7 state that the

body-worn camera shall remain activated until the contact is complete, and if it is

not, the officer shall document the reason for the non-compliance. Defendant argues

that the State has removed two minutes and fifty-three seconds of evidence from an

officer’s body-worn camera footage.41 Additionally, there are “blackouts” in the

37 Id. 38 Id. 39 Id. ¶ 36. 40 Def.’s Mot. to Dismiss, D.I. 86, ¶ 37-40. 41 Id. ¶ 56. 8 footage.42 The State has not provided documentation or notification that the footage

has been modified.43

The State argues that the body-worn cameras were redacted pursuant to

Delaware Law.44 Delaware Criminal Procedure Rule 16(c)(1) permits the State to

redact evidence if it relates to personal identifying information.45 Under this rule, a

Defendant may file a motion seeking disclosure of the redacted information.46

Additionally, the Victims/Witness Bill of Rights states that unless a victim or witness

waives confidentiality, the State may not disclose “the residential address, telephone

number or place of employment” of a victim, a witness, a member of a victim’s

family, or a member of a witness’s family, unless the disclosure is the site of the

crime.47 Furthermore, the State alleges that it was disclosed to Defendant that some

of the materials had been redacted to exclude personal identifying information of

victims, witnesses, or members of their family.48 The State also alleges that they

informed Defendant that if Defendant believes there is good cause for disclosure,

42 Id. 43 Id. ¶ 57. 44 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 26-29. 45 Id. ¶ 27 (see also Super. Ct. Crim. R. 16(C)). 46 Super. Ct. Crim. R. 12(C). 47 11 Del. C. § 9403, 9423 (see also State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 28). 48 Id. ¶ 30. 9 Defendant should file a motion with the Court49 or request the Court conduct an in-

camera review50 to determine if a violation occurred.

Additionally, the State argues that the portion of Defendant’s Motion

addressing the body-worn camera is better addressed as a motion for discovery

violations.51 The State cites to State v. Freeman, where the Court denied a

Defendant’s motion to dismiss for prosecutorial misconduct based on a discovery

violation.52 In Freeman, the State disclosed discovery four days prior to the start of

trial. The State specifically cites to a footnote in Freeman, where the Court stated,

“in reviewing the case law regarding alleged prosecutorial misconduct, [the Court]

was unable to locate a case where a Defendant made a motion for prosecutorial

misconduct prior to trial.”53

The Motion to Dismiss must be DENIED for several reasons. Even though

the State did not initially examine all evidence collected from the investigation,

dismissal is not warranted. Although the state’s conduct can be labeled as slipshod,

it does not rise to the same level of prosecutorial misconduct in State v. Robinson.

As mentioned above, the Court in Robinson denied the motion to dismiss, despite

the deliberate prosecutorial misconduct. Dismissing the indictment is not a remedy

49 Id. 50 Id. 51 Id. ¶ 25. 52 2023 WL 2879321, at *3 (Del. Super. Ct. 2023). 53 Id. at *2 n. 12 (see also State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 25). 10 tailored to the facts of this case. The trial is scheduled to start on May 26, 2026.

Additionally, Defendant’s bail was reduced despite the State’s representation

regarding the brakes. Defendant is not incarcerated while waiting for trial. This

conduct does not warrant the Court to dismiss the indictment against Defendant.

Second, the State has provided Defendant and the Court reasoning as to why the

body-worn camera footage was redacted and modified. As mentioned above, this

does not warrant dismissal of the indictment. Additionally, Defendant has not

established that he suffered prejudice that would affect his future trial date.54 A far

less extreme remedy can be implemented to ensure Defendant has a fair trial, such

as an in-camera review of the redacted and unredacted body-worn camera footage.

For these reasons, the Court will not dismiss the indictment.

II. MOTION TO RELEASE THE GRAND JURY TRANSCRIPT

Next, if the indictment is not dismissed, Defendant asks the Court to release

the Grand Jury transcript.55 Defendant has not cited to any case law supporting this

request. The simple answer is there is no transcript of the Grand Jury proceeding to

release. “Despite references in court rules to recordings, transcripts, and the

presence of stenographers at a grand jury meeting, grand jury proceedings have not

been recorded in Delaware in living memory.”56

54 State’s Resp. to Def.’s Mot. to Dismiss, D.I. 90, ¶ 37. 55 Def.’s Mot. to Dismiss, D.I. 86, at ¶ 94. 56 State v. Ponzo, 302 A.3d 1006, 1011 (Del. Super. Ct. 2023). 11 Even so, Delaware Courts have found that Grand Jury proceedings may be

disclosed at the request of a defendant “upon showing that grounds may exist for a

motion to dismiss the indictment because of matters occurring before the Grand

Jury.”57 Delaware courts have interpreted the statutory language to allow the courts

to order disclosure when the interests of justice so require.58 Because the Court has

already decided that justice does not require the indictment to be dismissed, even if

there were a transcript for the Court to release, the exception does not apply.

For these reasons, the Court will not and cannot release the Grand Jury

transcript.

III. THE MOTION IN LIMINE

If the case is not dismissed, Defendant argues that the State’s expert, Cpl.

Smith, should not be allowed to testify. Defendant makes several arguments in the

Motion in Limine. First, Defendant alleges there are credibility issues with Cpl.

Smith’s testimony.59 Second, Defendant argues that Cpl. Smith lacks the necessary

factual knowledge to provide expert testimony.60 Lastly, Defendant argues that Cpl.

Smith does not use reliable principles and methods, nor does he apply reliable

methods and principles to the facts of the case.61

57 State v. Cooper, 2024 WL 1093259, at *2 (Del. Super. Ct. 2024). 58 Ponzo, 302 A.3d at 1011. 59 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 42. 60 Id. 61 Id. 12 In order to be admissible, expert testimony must be relevant and reliable.62 Rule

702(d) of Delaware Rules of Evidence states:

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.63

Defendant argues that the factors set forth in Rule 702 were not met and therefore

Cpl. Smith’s testimony should be excluded. However, as explained hereinafter,

Defendant’s concerns with Cpl. Smith’s expert testimony are better addressed

through cross-examination. Cpl. Smith’s testimony is both relevant and reliable and

therefore is admissible.

A. The Court does not find credibility issues that would warrant exclusion of the expert’s testimony.

Defendant argues that there are credibility issues with Cpl. Smith’s

testimony.64 First, Defendant claims that Cpl. Smith’s testimony and representations

that Defendant was accelerating prior to the collision, which he included in his

opinion for the search warrant are problematic.65 Further, his opinion did not change

62 McLeod v. McLeod, 2015 WL 854299, at *1 (Del. Super. Ct. 2015). 63 D.R.E. 703(d). 64 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 42. 65 Id. 13 when he received evidence suggesting the contrary.66 Second, Cpl. Smith testified

that Detective Bluto’s report was correct, but later admitted that he had not reviewed

Detective Bluto’s report and it was actually incorrect.67

In the case State v. McMullen, the Court determined that under Daubert, only

two of the experts were relevant and reliable to testify about Pediatric Condition

Falsification, and excluded the other experts from testifying.68 The Court found that

an expert may testify “if scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence at issue.”69 The Court explained

that “knowledge” must be derived from supportable facts.70 Additionally, the Court

explained that “scientific opinions need not be ‘[held] to a certainty’ to be offered at

trial, they must be grounded in the scientific method to qualify as ‘scientific

knowledge.’”71 When assessing whether the proponent has met the burden of

establishing the relevance and reliability of the evidence, Daubert only requires the

Court to determine whether the scientific conclusions were found by using sound

and reliable approaches.72 The defendant argued that the testimony was not relevant

or reliable because there were no guidelines for diagnosing Pediatric Condition

66 Id. ¶ 24. 67 Id. ¶ 42. 68 900 A.2d 103 (Del. Super. Ct. 2006) (Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). 69 Id. at 113. 70 Id. 71 Id. 72 Id. 14 Falsification, it had not been tested or subject to “rigorous” scientific review, and

there was no known rate of error.73 However, both experts testified that diagnosing

Pediatric Falsification Condition requires differential diagnosis, which they both

employed.74 The Court found that two of the experts’ opinions were based on

scientific knowledge and would assist the jury. Therefore, the testimonies were

admissible under Daubert.75

In the present case, Defendant argues that Cpl. Smith’s opinion that Defendant

was accelerating prior to the collision was a predetermined conclusion that ignored

contrary facts.76 Additionally, he did not change his opinion after viewing the Airbag

Control Module, which shows that Defendant was not accelerating.77 Defendant

claims this is a misrepresentation to the Court.78 Defendant states that Cpl. Smith’s

opinion was not the product of reliable principles and methods, and his opinion was

based on inaccurate factual predicates.79 However, in the response to the Motion in

Limine, the State argues that Cpl. Smith had a sufficient factual basis to form an

opinion.80 The Court agrees with the State.

73 Id. at 111. 74 Id. at 119. 75 Id. at 106. 76 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 22. 77 Id. ¶ 42. 78 Id. ¶ 42. 79 Id. ¶ 24. 80 State’s Resp. to Def.’s Suppl. to Mot. in Lim., D.I. 89, ¶ 25. 15 Cpl. Smith investigated the scene of the collision and watched and listened to

the ring-style video footage from Frankford Elementary School, which showed the

roadway in front of the school.81 Cpl. Smith applied for and obtained a search

warrant for the Mercedes Airbag Control Module’s Event Data Recorded, which

provides data concerning the vehicle’s operation up to five seconds prior to the

collision.82 Approximately five seconds prior to impact, the Defendant was traveling

88 miles per hour with 100% accelerator pedal position.83 He continued to accelerate

with 100% accelerator pedal position until .5 seconds prior to impact.84 Cpl. Smith’s

report noted that Defendant accelerated his vehicle to a high rate of speed, allowing

the front of his vehicle to collide with the rear of the ATV.85 Cpl. Smith stated that

this opinion is consistent with what he observed at the scene of the collision, the

measurements he took, the video he observed, and his training and experience as a

collision reconstructionist.86 He defined “acceleration” as “a change in velocity over

a period of time.”87 The State claims that Cpl. Smith’s opinion is consistent with the

data from the Airbag Control Module.88 Defendant thoroughly cross-examined Cpl.

81 Id. at ¶ 4, 25. 82 Id. ¶ 7. 83 Id. 84 Id. 85 Id. ¶ 9. 86 Id. ¶ 25. 87 Tr. Attach. to Def.’s Suppl. to Mot. in Lim., D.I. 87, at 31. 88 State’s Resp. to Def.’s Suppl. to Mot. in Lim., D.I. 89, ¶ 32. 16 Smith at the Daubert hearing, where Cpl. Smith admitted that he could not determine

the exact speed of the vehicle when he authored his report.89

Delaware Courts have held that a “proponent need to show only by a

preponderance of the evidence that its expert's opinions are reliable[,] not that they

are correct.”90 Defendant’s argument regarding Cpl. Smith’s use of “acceleration”

can be explored on cross-examination. It does not need to be a correct statement but

needs to be reliable. To be reliable, the opinion must have been grounded in the

scientific method.91 Aforementioned, Cpl. Smith testified that his findings were

based upon the video footage he watched, and the investigation conducted at the

collision scene.92 In the response to the supplemental Motion in Limine, the State

outlines that Cpl. Smith relied upon the following facts when reaching his opinion:

(1) The ATV was established in the roadway; (2) the ATV was hit squarely from the rear; (3) the rear of the ATV and the front of the Mercedes were significantly damaged; (4) there was no physical evidence of preimpact braking; (5) there was no evidence of post- impact skid marks from the Mercedes; (6) the EDR [airbag control module] data shows Defendant traveling at high speeds with 100% accelerator pedal from 5 seconds to 4 seconds prior to impact; (7) that the Defendant was traveling at 92 mph with 0% accelerator pedal position at 4 seconds; at 3.5 seconds, the Defendant once again had 100% accelerator position; (9) the Defendant did not go back to 0% accelerator position until .5 seconds prior to impact while he was traveling 101 mph; (10) the EDR [airbag control module] data shows minimal braking and no ABS [anti-lock brake] activity within

89 Tr. Attach. to Def.’s Suppl. to Mot. in Lim., D.I. 87, at 62. 90 State v. Dale, 2021 WL 5232344, at *5 (Del. Super. Ct. 2021). 91 McMullen, 900 A.2d at 113. 92 State’s Resp. to Def.’s Suppl. to Mot. in Lim., D.I. 89, ¶ 33. 17 .5 seconds of impact; (11) the EDR [airbag control module] does not reflect significant evasive maneuvering; (12) the vehicles continued to move more than 300 feet from the site of the collision; and (13) the school’s ring camera depicts the ATV and Mercedes post impact.93

Furthermore, Cpl. Smith’s testimony is relevant because it would “assist the trier of

fact to understand the evidence or to determine a fact in issue.”94 Cpl. Smith testified

that every time he used the word “accelerate” in an opinion, he believes it is an

accurate reflection of the data he had.95 For this reason, the Court finds that Cpl.

Smith’s testimony regarding the acceleration of the vehicle is reliable and relevant

and should not be excluded.

Next, Defendant argues there are credibility issues because Cpl. Smith

incorporated Detective Bluto’s report into his own report, but later admitted to not

reading it.96 However, the basis of an expert’s opinion is a matter for cross-

examination. Cpl. Smith’s report references Detective Bluto’s report, which

includes a summary of one of the videos. Cpl. Smith stated that he provided his own

analysis of the video in a later section of the report.97 When asked on cross-

examination if Detective Bluto’s report is correct, Cpl. Smith initially said yes, but

then conceded that Detective Bluto’s report is incorrect.98 Cpl. Smith claimed he

93 Id. ¶ 37. 94 McMullen, 900 A.2d at 113. 95 Tr. Attach. to Def.’s Suppl. to Mot. in Lim., D.I. 87, at 113. 96 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 42. 97 Tr. Attach. to Def.’s Suppl. to Mot. in Lim., D.I. 87, at 88-91. 98 Id. at 90-91. 18 did not incorporate Detective Bluto’s report into his own report, but rather referenced

it because he had not watched the video at that time.99 This is not sufficient to

exclude Cpl. Smith’s testimony. As aforementioned, the proponent only needs to

show that the expert’s opinion is reliable, not correct.

As mentioned above, “[a]n expert's testimony will only be excluded in the

narrow circumstance that the expert has completely neglected the core facts of the

case.”100 Cpl. Smith not reviewing Detective Bluto’s report is a matter of factual

basis that can be explored and challenged through cross-examination. For this

reason, Cpl. Smith’s testimony will not be excluded.

B. The Court does not find a lack of necessary factual knowledge.

The Court finds that Cpl. Smith’s testimony is based on sufficient facts and

data. Defendant argues that Cpl. Smith lacks the necessary factual knowledge by

failing to review the fisheye camera view from the school and the Handy’s residence

ring video camera footage.101 The State argues that the depth of the investigation is

a matter for cross-examination.102

Both Defendant and the State cite to McLeod v. McLeod, a personal injury

case.103 In McLeod, the Court deferred decision on the defendant’s motion to

99 Id. at 89. 100 Dale, 2021 WL 5232344, at *5 (quoting Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *6 (Del. Super. Ct. 2021)). 101 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 42. 102 State’s Resp. to Def.’s Suppl. to Mot. in Lim., D.I. 89, ¶ 26. 103 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 12. 19 exclude the plaintiff’s experts’ testimonies until after the plaintiff had supplemented

his expert report.104 The plaintiff wrote his own report, which identified two doctors

that were to testify as his experts. The plaintiff’s report provided a brief synopsis,

but did not provide the doctors’ affidavits or reports.105 The first expert was to testify

about the symptoms and indicators of sexual abuse in children, the effects of abuse

during developmental stages, and the lasting symptoms.106 Plaintiff did not indicate

that the first expert was to testify about his specific case.107 The second expert was

to provide specific testimony about the case, including plaintiff’s treatment for post-

traumatic stress disorder, substance abuse, treatment for flashbacks, regression to

age five years old, etc.108 However, the plaintiff did not indicate that the experts had

reviewed the plaintiff’s medical records or examined the plaintiff.109 The only

medical record that was provided to the Court was a disability slip that showed the

plaintiff was treated for depression, PTSD, and alcoholism.110 The defendant sought

to exclude both experts’ testimonies because the first doctor did not have sufficient

factual information to form an expert opinion and the second doctor’s opinion lacked

factual basis and was not relevant.111

104 2015 WL 854299 (Del. Super. Ct. 2015). 105 Id. at *2. 106 Id. 107 Id. 108 Id. 109 Id. at 3. 110 Id. 111 Id. at 3-4. 20 In McLeod, the Court stated that “Delaware courts have found expert

testimony inadequate and worthy of exclusion where the expert report did not

demonstrate that the expert had specifically and correctly considered the facts of the

present case in forming a proffered opinion.”112 The Court further explained that

expert testimony is excluded when the testimony is based on an incorrect

understanding of the facts, the expert’s report contains no specific facts, and the

expert fails to describe the methodology.113 The plaintiff did not allege that the

doctors examined plaintiff or reviewed the plaintiff’s medical records.114 The

doctors’ opinions were based primarily on the plaintiff’s self-reports.115 The Court

found that the plaintiff had not shown that the experts were equipped to testify and

gave the plaintiff additional time to supplement the record.116

Defendants also cite to Perry v. Berkley, arguing that the present case is

“analogous to Perry.”117 The Court disagrees. In Perry, the defendants filed a

motion in limine to exclude testimony from the plaintiff’s expert, which was granted

by the Superior Court and affirmed by the Supreme Court.118 The Supreme Court

found that the expert’s testimony was inadmissible under Daubert and Rule 702 of

112 Id. at 5. 113 Id. 114 Id. at 6. 115 Id. 116 Id. 117 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 43. 118 996 A.2d 1262, 1271 (Del. 2010). 21 Delaware Rules of Evidence for lack of factual knowledge.119 Plaintiff’s expert did

not treat the plaintiff and did not opine as to whether the cervical issues were related

to the accident.120 The expert also was unaware of plaintiff’s prior medical treatment

for the neck and back.121 The plaintiff failed to offer expert testimony that the

defendants’ conduct caused the injuries in whole or in part.122 The Court held that

even though the factual basis of an expert’s testimony generally goes to the

credibility of the testimony, rather than admissibility, the testimony must be excluded

if it is not based upon an understanding of the fundamental facts of the case.123 If an

expert’s opinion is not “based upon an understanding of the fundamental facts of the

case . . . it can provide no assistance to the jury . . . .” 124 Additionally, the Court

noted that the plaintiff’s attorney did not ask the expert for an updated opinion based

upon the plaintiff’s correct medical history.125 Since the prior medical history was

pivotal to determine whether the car accident caused her back injuries, the expert

could not have properly formed an opinion without reviewing the plaintiff’s medical

119 Id. 120 Id. at 1265. 121 Id. at 1271. 122 Id. 123 Id. 124 Id. 125 Id. at 1270. 22 history.126 The Supreme Court affirmed the trial court’s decision to exclude the

expert’s testimony.127

In the case State v. Dale, the defendant sought to exclude the state’s expert

testimony due to a lack of sufficient facts or data.128 The expert witness was a

neurologist who had not conducted a physical examination of the defendant, but was

offering testimony regarding the defendant’s diagnosis compared to the symptoms

exhibited by a suspect in a surveillance video.129 The expert reviewed a four hour

video of the defendant’s interrogation to evaluate for signs and symptoms of a radial

nerve injury, defendant’s medical records, and a surveillance footage of the suspect

who was exhibiting mobility issues.130 The Court found that a physician does not

need to conduct every possible test or rule out every possible diagnosis so long as

the expert employed sufficient techniques to have “good grounds” for the

conclusion.131 The Court held that attacks of the factual sufficiency or basis of an

expert’s opinion “may warrant vigorous cross-examination or admission of contrary

evidence[,] but not exclusion.”132 The Court further found that “[t]he different depth

with which [an expert] pursued particular lines of investigation and the different

126 Id. at 1271. 127 Id. 128 2021 WL 5232344, at *3, aff'd, 301 A.3d 1194 (Del. 2023). 129 Id. at 4. 130 Id. at 3. 131 Id. at 6. 132 Id. 23 assumptions they made are readily subject to cross-examination and to evaluation

by the fact finder for credibility and weight.”133 “An expert's testimony will only be

excluded in the narrow circumstance that the expert has completely neglected the

core facts of the case.”134

The present case is distinguishable from McLeod, Perry, and Dale. In the

present case, Cpl. Smith reviewed video footage, assessed the evidence from the

scene, and the data from the Mercedes Airbag Control Module. Even though Cpl.

Smith did not review the fisheye video camera initially, he testified that his opinion

did not change after watching it. Unlike the experts in the cases above, Cpl. Smith

has a factual understanding of the evidence and the facts surrounding the case. Even

though he did not review every piece of evidence, and his findings may be proven

false at trial, his opinion is reliable and relevant. There is scientific knowledge to

support his opinion, and his opinion would assist a jury.

The factual basis of Cpl. Smith’s testimony is an issue of credibility, not

admissibility. Defendant should challenge the factual basis on cross-examination.

For this reason, the Court does not find that Cpl. Smith’s expert testimony should be

dismissed for lack of factual knowledge.

133 Id. at 5 (quoting Henlopen Hotel, Inc. v. United Nat'l Ins. Co., 2020 WL 233333, at *4 (Del. Super. Ct. 2020); Perry, 996 A.2d at 1271)). 134 Id. at 5 (quoting Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *6 (Del. Super. Ct. 2021)). 24 C. The Court does not find a lack of use of reliable principles and methods or a lack of application of reliable methods and principles to the facts of the case.

Next, Defendant argues that Cpl. Smith did not rely upon reliable principles

or methods in forming and authoring an opinion (the search warrant affidavit) prior

to having all of the necessary facts.135 Defendant argues that Cpl. Smith’s method

of investigation is unreliable because he stated that the actions of the ATV prior to

the accident were not relevant to the investigation.136 Next, Defendant claims that

Cpl. Smith did not meet the “bare minimum” of an accident investigation because

he did not review all available evidence.137 After learning that the State did not

review all evidence, the expert report was not updated.138

As mentioned above, the Court in State v. Dale held that “[t]he different depth

with which [an expert] pursued particular lines of investigation and the different

assumptions they made are readily subject to cross-examination and to evaluation

by the fact finder for credibility and weight.”139 “An expert's testimony will only be

excluded in the narrow circumstance that the expert has completely neglected the

core facts of the case.”140

135 Def.’s Suppl. to Mot. in Lim., D.I. 87, ¶ 42. 136 Id. 137 Id. 138 Id. 139 Dale, 2021 WL 5232344, at *5 (quoting Henlopen Hotel, 2020 WL 233333, at *4; Perry, 996 A.2d at 1271). 140 Id. (quoting Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *6 (Del. Super. Ct. 2021)). 25 Cpl. Smith did not completely neglect the core facts of the case. In his report

seeking a search warrant, Cpl. Smith relied upon his personal investigation of the

scene of the collision and a ring-style video footage from Frankford Elementary

School that showed the roadway in front of the school. Cpl. Smith analyzed the

video to gauge an average speed of the vehicles, and he used two different formulas

to determine a rough estimate of the vehicle’s speed prior to the collision. Initially,

he did not watch all of the available video footage. However, Cpl. Smith later

watched the videos and stated that it did not change his opinion or findings. He

stated that neither video shows the ATV clearly entering the roadway and he believes

the ATV had rear lights on the back of the vehicle.141 In Cpl. Smith’s supplemental

report, he states that the angle of the fisheye video “does not show when or how the

ATV enters the roadway, just that the ATV is in the roadway traveling westbound.

This video would not be able to be used for any formal reconstruction or video

analysis, due to the distortion of the fisheye lens.”142

Because Cpl. Smith did not completely neglect the core facts of the case,

Defendant’s concerns with the methods of the State’s investigation should be

explored on cross-examination. The manner in which Cpl. Smith and the State

conducted their investigation does not require the Court to exclude Cpl. Smith from

141 Tr. Attach. to Def.’s Suppl. to Mot. in Lim., D.I. 87, at 106-107. 142 State’s Resp. to Def.’s Suppl. to Mot. in Lim., D.I. 89, ¶ 28. 26 testifying. For these reasons, the Court does not find that Cpl. Smith’s testimony

lacks the of use of reliable principles and methods or lacks application of reliable

methods and principles to the facts of the case.

CONCLUSION

For these reasons, Defendant’s Motion to Dismiss the Indictment is DENIED.

Defendant’s Motion to Release the Grand Jury Transcript is DENIED. Defendant’s

Motion in Limine is DENIED.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

xc: Prothonotary