State v. Taylor ( 2023 )

SUPERIOR COURT-
OF THE
STATE OF DELAWARE
VIVIAN L. MEDINILLA LEONARD L. WILLIAMS JUSTICE CENTER
Judge 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DE 19801-3733
TELEPHONE (302) 255-0626
December 14, 2023
William H. Leonard, Esq. Benjamin S. Gifford, IV, Esq.
John S. Taylor, Esq. Law Office of Benjamin S. Gifford, IV
Issac Rank, Esq. 14 Ashley Place
Department of Justice Wilmington, DE 19804
820 N. French Street, 7th Floor
Wilmington, DE 19801 John B. Barber, Esq.
Law Office of John Barber
24B Trolley Square
Wilmington, DE 19806
RE: State v. Diamonte Taylor - Case Id No. 1605012921A
Dear Counsel:
On December 5, 2023, the Court granted Taylor’s motion for mistrial and
indicated that a written decision would follow. The analysis is provided herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2018, a jury convicted Taylor of Murder in the First Degree, Gang
Participation, Assault First Degree, two counts of Reckless Endangering First
Degree, two counts of Aggravated Menacing, and numerous related firearm
offenses.1 Taylor was sentenced to, inter alia, a mandatory life sentence for the first-
degree murder count. 2 Taylor appealed,3 and in September 2021, the Delaware
Supreme reversed this Court’s judgment and remanded the matter for a new trial. 4
1
D.I. 78.
2
D.I. 105.
3
D.I. 106.
4
Taylor v. State, 260 A.3d 602, 619 (Del. 2021).
Taylor’s case stems from a purported gang feud in the City of Wilmington
between a street gang known as Shoot to Kill (“STK”) and its alleged rival known
as Only My Brothers (“OMB”). The ongoing gang rivalry allegedly resulted in
various violent events, including the 2016 murder of Brandon Wingo. That murder
is at the centerpiece of this trial.
As part of its case-in-chief in Taylor’s first trial, the State presented evidence
from its disclosed “gang expert” William Moran who testified about the STK and
OMB rivalry to establish, in part, the State’s theory that Taylor was a member of
STK who participated in illegal gang activity and was motivated to commit the
murder of Wingo for retaliatory reasons. 5
Taylor’s retrial began on December 4, 2023. The State called Daniel Masi, as
its “gang expert.” Masi was substituted for William Moran. 6 Like Moran, to support
the State’s theory that the Wingo murder was gang related, Masi explained his
understanding of the meanings of hand signs depicted in photographs of alleged gang
members and offered opinion regarding social media messages/postings in the days
before and after Wingo’s murder. These included references generally to STK and
some specifically to Taylor.
During direct examination, the prosecution established Masi’s credentials as
an expert, including that he had been employed at the Delaware Department of
Correction (DOC) until 2018 when he assumed his current role with the Delaware
Department of Justice (DOJ). He told the jury that, while at DOC, he served as an
investigator for the Security Threat Group Unit, handling gang investigations and
monitoring gang communications, both in the prison and on the streets for safety
purposes. This included approximately 30-40 hours per week obtaining “intel” from
gang members. And that the bases of his expert opinions were formed through
various sources, including these extensive interviews conducted with known gang
members.
5
To establish the State’s theory that the murder of Brandon Wingo was a retaliatory response to
the ongoing STK/OMB feud, Moran utilized social media evidence to explain his understanding
of the meanings of hand signs depicted in photographs of alleged gang members and offered
opinion regarding various username postings/messages in the days leading up to and following the
murder.
6
Interestingly, Moran was called as a witness in the second trial but only to authenticate certain
social media evidence introduced in the first trial, now sought to be admitted through Masi.
2
Defense Counsel requested a sidebar to obtain reassurances from the State that
Masi’s testimony would be limited to the expert testimony that Moran had provided
in the first trial. The State informed Defense Counsel that the testimony would not
be expanded and that Masi did not remember interacting with Taylor. The State
resumed its direct examination of Masi, which continued for the remainder of the
day.
On Day Two of trial, on cross-examination, Masi told the jury that he had
interviewed Taylor and identified him as a member of the STK gang:
Q. In describing your training and experience you mentioned
speaking to gang members?
A. Yes, sir.
****
Q. Let’s be very specific then, did any gang members purportedly
associated with the purported gang STK speak with you about
hashtags or what different slang meant?
A. Yes.
Q. Who?
A. One for instance was co-defendant [].
****
Q. What other members of STK did you purportedly speak to,
purported members did you speak to?
A. Multiple members of STK including Diamonte Taylor….
Asked to clarify, defense counsel continued:
Q. Let me be very clear when I asked what purported members of STK
you talked to I don’t mean in passing, I mean interviewing them about
the topics that you are testifying to today?
A. Yeah, great question. At that time in 2015, 2016 I was interviewing
STK members, as I said yesterday, 30 hours of the week almost. . . .
3
So STK and OMB, interviewing multiple members between both gangs
was a daily basis at that time. . . .7
Defense Counsel requested a sidebar and moved for a mistrial. At the State’s
request, and outside the presence of the jury during voir dire, Masi explained that
while Taylor was in custody, he spoke to him about “STK, multiple gang stuff.”8 He
testified he was wholly unaware of Taylor’s reasons for being in custody, despite his
testimony that while at DOC, he monitored gang communications, and remained in
constant contact with law enforcement representatives, including Moran.
Masi characterized at least one interaction with Taylor as a formal face-to-face
meeting that lasted “maybe” five minutes. There are no known records, notes, or
reports that memorialized the interview. Masi spoke to Taylor without counsel
7
Tr. at 19-22, December 5, 2023.
8
Tr. at 29-32, December 5, 2023. The cross-examination during voir dire went as follows:
[DEFENSE COUNSEL]: Let’s see if we limit it to your time at DOC not the DOJ,
were all of those individuals incarcerated?
A. Yes, sir.
Q. And during that time you spoke to – you just listed a whole bunch of STK
members, [], [], did you say?
A. Yes, sir.
Q. Diamonte Taylor?
A. Yes, sir.
****
Q. So during that time when Mr. Taylor was incarcerated pending charges is when
you spoke to him?
A. I spoke to him, I believe sometime at [JTVCC]. . . I just don’t recall the date.
Q. But while you were still employed with DOC?
A. Yes, sir.
Q. And you talked to him about STK?
A. Multiple things, yes.
Q. STK?
A. STK, multiple gang stuff, yes.
4
present and did not provide Miranda warnings. He explained that his
communications with Taylor did not further inform his training and experience
regarding STK.
I. CONTENTIONS
Taylor argued that Masi’s testimony presents structural errors that necessitate
a mistrial. He contended any alleged statements to Masi should have been made
available to him before trial. And he asserted that any potential inferences made
from those statements implicated his rights against self-incrimination, to remain
silent, and to counsel as guaranteed by the 5th and 6th Amendments of the U.S.
Constitution.9 Taylor maintained no curative instruction could retain the fairness of
his trial.
The State conceded that Taylor’s 6th Amendment right to counsel had attached
when Masi spoke to Taylor but argued that communication without counsel was
permissible because its purpose was related to prison safety. And because no
statements were presented to the jury, it argued no harm, and thus no constitutional
foul. The State suggested a curative instruction to disregard the on-stand revelation
that the expert interviewed Taylor and identified him as an STK member would
suffice. According to the State, Defense Counsel goaded a mistrial when he chose
to ask a question to which he knew the answer, 10 and that this factor should be
weighed against Taylor as another example of the “gamesmanship” demonstrated
through his prior eleventh-hour filings.11
9
This ruling is based solely on an analysis under Pena. On this limited record, this Court declines
to entertain Taylor’s arguments related to any alleged discovery or constitutional violations.
10
This Court cannot credit the argument that Defense Counsel goaded a mistrial. The State earlier
informed Defense Counsel that Masi did not even remember Taylor and, in all fairness to the
prosecutors, it was only during Masi’s testimony that they themselves learned he had spoken to
Taylor in prison while these charges were pending.
11
One week before trial, Taylor filed a Motion to Stay in this Court (D.I. 183) because he had filed
a Petition for Writ of Mandamus with the Supreme Court of Delaware. This Court denied the stay.
And the Supreme Court dismissed the Petition for Writ of Mandamus (in No. 432, 2023) on the
morning of December 5, 2023, before Masi testified on cross-examination.
5
II. STANDARD OF REVIEW
The “trial judge is in the best position to assess the risk of any prejudice
resulting from trial events”12 and thus, also “in the best position to determine whether
a mistrial is warranted.” 13 It has been long understood that “[m]istrials are required
‘only where there is ‘manifest necessity’ or the ‘ends of public justice would be
otherwise defeated.’”14 Indeed, “[t]he extreme remedy of a mistrial is required only
where no ‘meaningful and practical alternatives’ are available to remedy an error at
trial.”15 And normally, “[a] trial judge’s prompt curative instructions ‘are presumed
to cure error and adequately direct the jury to disregard improper statements [or
evidence].’”16
III. DISCUSSION
This Court’s consideration of whether Masi’s responses on cross-examination
require the declaration of a mistrial is guided by the four factors delineated in Pena
v. State. 17 Those include: (1) the nature and frequency of the conduct or comments;
(2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the
sufficiency of the trial judge’s efforts to mitigate any prejudice in determining
whether a witness’s conduct was so prejudicial as to warrant a mistrial.18
At best, Masi’s comments simply went awry of the prosecution’s
representations that his testimony would not exceed the bounds of the State’s expert
witness in the first trial. At worst, they constitute incurable trial error under Pena.
Masi is not faulted for knowing too much. But by party agreement, he was
called to testify as an identical substitute and should have stuck to that role. And
12
Revel v. State, 956 A.2d 23, 27 (Del. 2008) (citing Brown v. State, 897 A.2d 748, 752 (Del.
2006)) (citations omitted).
13
Flowers v. State, 858 A.2d 328, 334–35 (Del. 2004) (citing Ashley v. State, 798 A.2d 1019, 1022
(Del. 2002)).
14
Pena v. State, 856 A.2d 548, 552 (Del. 2004) (citing Davis v. State, 725 A.2d 441 (Del. 1999)
(quoting Steckel v. State, 711 A.2d 5, 11 (Del. 1998)).
15
Flowers, 858 A.2d at 335 (citations omitted).
16
Revel, 956 A.2d at 27 (quoting Pena, 856 A.2d at 551) (citations omitted).
17
856 A.2d 548 (Del. 2004).
18
Pena, 856 A.2d at 550-51 (citations omitted).
6
there is no doubt that the State should have disclosed Masi’s prior interactions with
Taylor well before Masi took the stand. But this testimony was now improperly
admitted for many reasons.
PENA’S FOUR FACTORS
Under Pena’s first factor, although the frequency of the offending comments
was minimal (because Defense Counsel ended the cross-examination and called for
a sidebar) the nature and gravitas of this expert testimony weighs in favor of a
mistrial.
In a vacuum, Masi’s comment that he spoke to Taylor might have been
innocuous. But on the first day of trial, Masi spent hours telling the jury that the
bases of his opinions were formed by various sources, including extensive interviews
he conducted with known gang members both in prison and out on the streets of
Wilmington. When challenged on cross-examination about what STK member he
had interviewed, Masi deliberately named Taylor as a source of this extensive
knowledge, and he told the jury that Taylor was an STK member. That bell could
not then be un-rung with a curative instruction.
The State’s reliance on Revel v. State19 is unpersuasive. Revel involved a
police officer’s isolated and accidental reference to the defendant’s exercise of his
constitutional right to remain silent.20 Masi’s comments were not inadvertent, they
were offered to bolster his expertise. Further, unlike Revel, this case does not involve
a comment that referenced the invocation of the right to remain silent that the Court
found curable through a well-targeted instruction. Rather, Masi intentionally alerted
the jury to the fact that Taylor did not remain silent. Instead, the jury learned that
Taylor was interviewed and presumably made credible statements about “gang stuff”
and those were part of the mix of Masi’s font of knowledge about STK and Taylor’s
membership therein. Revel is inapposite.
That leads to Pena’s second factor. Once Masi told the jury that he had
interviewed Taylor, it is highly likely that prejudice resulted for several reasons.
First, the jury could have inferred that what came from the interview was Taylor’s
tacit affirmance of the truthfulness of Masi’s testimony. Second, it places Taylor in
an untenable position to proceed without the ability to cross-examine on statements
19
956 A.2d 23 (Del. 2008).
20
Id. at 26.
7
that were presumably made by him, yet never documented nor provided for
inspection to the defense. Third, that an interview took place allows the jury to
impermissibly infer, at best, that Masi conducted Taylor’s interview in the
community because Taylor was a gang member, or at worst, that Masi interviewed
Taylor at DOC because Taylor was incarcerated, opening yet another Pandora’s box.
Fourth, even if the jury didn’t put two and two together that the interview took
place while Taylor was in custody, perhaps more prejudicial was Masi’s
pronouncement that Taylor was interviewed because Taylor was, in fact, an STK
member. The State carries the burden to prove Taylor’s participation in STK gang
activities. Because Taylor’s STK alleged gang membership and its corresponding
feud with OMB is pivotal to establish his motive to commit Wingo’s murder,
whether Taylor was affiliated, associated, or otherwise belonged to the group was a
critical factual question for the jury. That Masi declared Taylor to be an STK
member without warning was improper and obviously prejudicial. This factor
weighs heavily in favor of a mistrial.
Pena’s third factor, the closeness of the case, is difficult to measure given the
point at which this occurred in the trial proceedings, but this does not change the
ruling. The State had just begun to present its case-in-chief. But upon Taylor’s
timely objection and mistrial request, the Court exercises its discretion in light of the
record before it. This Court was compelled to err on the side of caution and ensure
that Taylor’s jury was not tainted by the improper comments.
Lastly, efforts to mitigate the prejudice would be futile. One alternative
suggested was to strike Masi’s testimony in its entirety. The suggestion that the jury
could follow an instruction to disregard an entire day’s worth of expert testimony is
unrealistic. More problematic is the notion that the jury could be effectively
instructed to disregard only the testimony that Taylor was interviewed. Given the
record developed on voir dire, the implications of Masi’s interaction with Taylor
became more concerning. In these unique circumstances, a mistrial was manifestly
necessary. Taylor’s Motion for Mistrial is GRANTED.
SO ORDERED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
cc: Prothonotary
8