Opinion
ID No. 0801010328.
Submitted: September 2, 2009.
Decided: September 14, 2009.
On Defendant Clifford Wright's Motion to Exclude the Testimony of R. Stephen Mardigian GRANTED.
Steven P. Wood, Esquire, Ipek Medford, Esquire (argued), Department of Justice, Wilmington, Delaware, Attorneys for the State.
Jerome M. Capone, Esquire, Brian J. Chapman, Esquire (argued), Wilmington, Delaware, Attorneys for Defendant Clifford Wright.
MEMORANDUM OPINION
Defendant Clifford Wright filed a Motion to Suppress certain statements pursuant to Superior Court Criminal Rule 41(f). The Court held a suppression hearing on September 2, 2009, has reviewed the briefs submitted by the parties, and has viewed the interview video. The Court finds that Defendant's Motion to Suppress must be denied.
FACTUAL CONTEXT
On July 9, 2006, Scott Gardner alerted the New Castle County Police Department (NCCPD) that his ex-wife, Tamela Gardner, was missing. On July 13, 2006 New Castle County Police found the bodies of Ms. Gardner and Gabriel Gabrielli. The bodies were in Ms. Gardner's minivan a short distance from her home. The minivan and the bodies were partially burned. Clifford Wright, Ms. Gardner's ex-boyfriend, eventually was arrested and charged with the murders of Ms. Gardner and Mr. Gabrielli. The State is seeking the death penalty.
In response to the missing persons report, the NCCPD began to contact Tamela Gardner's acquaintances. Three days before the bodies were discovered, in the early morning hours of July 10, 2006, Officer Gary Truver went to the home of Raheem Cannon. Officer Truver spoke with Cannon, Cannon's girlfriend Shelly Street, and Ms. Gardner's ex-boyfriend, defendant Clifford Wright. Officer Truver asked Wright if he "had any knowledge as to her whereabouts [or] any information that would help [NCCPD] locate her." Officer Truver testified that he was not aware of the nature of the relationship between Wright and Ms. Gardner prior to this conversation. Officer Truver only knew that Wright was Ms. Gardner's ex-boyfriend.
At Cannon's request, Wright and Officer Truver retreated to the front steps of the home so as not to disturb Cannon's sleeping child. Officer Truver then asked Wright for any information that might assist in locating Ms. Gardner. Wright was forthcoming and willing to cooperate. The pair then was joined on the porch by Officer John Treadwell, who arrived to assist Officer Truver. Officer Treadwell testified that there may have been a second officer already present on the scene when he arrived.
The officers asked Wright if he would be willing to accompany them to New Castle County Headquarters (NCCHQ) to discuss the disappearance with the detective leading the search, Detective Tom Abram. Wright agreed to this request, stating that he was willing to do whatever was necessary to help. Officer Truver suggested that Wright could follow him to NCCHQ if he wished, but because Wright did not have a vehicle of his own, he accompanied Officer Truver in the patrol car. Because NCCPD procedure only allows officers and those participating in an approved ride-along to sit in the front seat, the officer searched Wright for weapons and placed him in the back seat of the patrol car. The patrol car is designed so that any back seat occupant is locked in.
Upon arriving at NCCHQ, Wright was led inside through a side entrance commonly used by officers. Arrestees enter through the prisoner's entrance and are fingerprinted and required to fill out pedigree information. All prisoner "property is removed from their pockets, or person, including belts, strings, cell phones, wallets, jewelry, watches, et cetera." Wright was not taken in through the prisoner's entrance. He was not fingerprinted, handcuffed, photographed or asked any booking questions. He remained in possession of all of his belongings including his cellular phone, wallet and watch.
Prior to Wright's interview with Detective Abram, Officer Truver stood by "with" him. Officer Truver testified that this supervision was required by NCCPD procedure to prevent witnesses from wandering into evidence rooms, near weapons lockers, or accidentally observing confidential information. During cross-examination, Officer Truver admitted that a second reason for the supervision was "to make sure that he didn't leave so [the] detectives could interview him."
Detective Abram testified that the purpose of his interview was to determine the possible whereabouts of Tamela Gardner. Wright was not considered a suspect at that time. Wright maintained possession of his wallet, cellular phone and watch during the interview.
During the interview Wright volunteered information regarding his relationship with Tamela Gardner, much of which was not prompted by direct questioning. While responding to a question regarding the date he and Ms. Gardner began cohabiting, Wright informed Detective Abram that he previously had been incarcerated on burglary charges in Sussex County. When asked if he and Ms. Gardner had ever been in a physical altercation with one another, Wright responded that she had "[l]iterally jumped out of [his moving] van in January" of that year. While discussing Ms. Gardner's drug use, Wright stated that both he and Ms. Gardner had purchased cocaine in the past.
Detective Abram testified that the tone of his interview with Wright was that of a "general conversation." Detective Abram "would ask [Wright] questions and he would respond to those questions." Wright provided Detective Abram with a list of locations frequented by Ms. Gardner and the contact information for her friends and acquaintances. During the course of this questioning, Wright also disclosed his arrest on July 6, 2006 by Delaware State Police for aggravated menacing, and that a no contact order had been issued against him prohibiting any contact between himself and Ms. Gardner. He informed Detective Abram that he had come upon Ms. Gardner and Mr. Gabrielli inside the Good Shot Bar and was arrested after arguing with Ms. Gardner over the phone and in person.
During a break in the interview, observers in an adjacent room informed Detective Abram that Mr. Gabrielli's car had been defaced by someone who had scratched the words "ass" and "asshole" into the paint, and may have flattened the tires. Because of the nature of his arrest, Detective Abram suspected Wright of criminal mischief to the vehicle. Upon re-entering the interview room, Detective Abram informed Wright of his constitutional rights under Miranda. Detective Abram informed Wright that he was not considered a suspect, but he was included a group of potential suspects. Wright signed a Miranda waiver. Wright then consented to a search of his body, his room at Cannon's house and his cellular phone. He also consented to a search of his van, but suggested that the officers first obtain his brother's consent because Wright was not the actual owner.
Miranda v. Arizona, 384 U.S. 436 (1966).
According to Detective Abram, Wright's demeanor remained calm throughout the interview and the search. Wright provided Detective Abram with the pass code to his cellular phone and offered to supply the pass code to his locked briefcase. He requested that the detective not delete any voicemails saved on the phone and not damage the lock on the briefcase.
Wright did not state at any time that he wanted to stop questioning nor did he state at any time that he wanted to end the interview and go home. Shortly after the body search, he was released and the NCCPD provided transportation either back to his own residence or to his brother's.
Wright was arrested and charged with the murders of Tamela Gardner and Gabriel Gabrielli three days later, on July 13, 2009.
MIRANDA
Wright alleges that during the interview with Detective Abram, he was in custody, but not given his Miranda warnings. The Fifth Amendment of the United States Constitution guarantees that, in a criminal proceeding, no person shall be forced to be a witness against himself or herself. To this end, in Miranda v. Arizona, the United States Supreme Court created a set of warnings for law enforcement to give prior to custodial interrogation of a suspect. Specifically, before any questioning, the suspect must be informed of his right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. These warnings are constitutionally required to combat the compelling pressures inherent in custodial police interrogation and "to permit a full opportunity to exercise the [ Fifth Amendment] privilege against self-incrimination." Statements in violation of Miranda's precepts, even if voluntary, are inadmissible to prove guilt at trial.
See Miranda, 384 U.S. at 467-69.
Id. at 467-469.
Id. at 467.
Michigan v. Mosley, 423 U.S. 96, 100 (1975).
An officer's obligation to administer Miranda warnings attaches "only where there has been such a restriction on a person's freedom as to render him `in custody.'" To determine whether a suspect was in custody, a court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."
Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) ; see also Illinois v. Perkins, 496 U.S. 292, 296 (1990).
California v. Beheler, 463 U.S. 1121, 1125, (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. at 495).
The United States Supreme Court has made clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. A police officer's subjective view that the individual under questioning is or is not a suspect, if undisclosed, "does not bear upon the question of whether the individual is in custody for purposes of Miranda." An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed to the individual being questioned, but are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his "freedom of action."
See Stansbury v. California, 511 U.S. 318, (1994).
Stansbury, 511 U.S. at 324 (citing F. INBAU, J. REID, J. BUCKLEY, CRIMINAL INTERROGATION AND CONFESSIONS 232, 236, 297-298 (3d ed. 1986)).
Michigan v. Chesternut, 486 U.S. 567, 575, n. 7 (1988) (citing United States v. Mendenhall, 446 U.S. 544, 554, n. 6 (1980)); see also Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
The fact that the questioning may have occurred in a police station is not entirely dispositive of custody. In the absence of a formal arrest, the determination that there has been a restraint on freedom of movement to a degree that would trigger Miranda turns on whether a reasonable person, in the suspect's position, would believe himself or herself to be in custody or deprived of his or her freedom in a significant way.
Mathiason, 429 U.S. at 492.
McCarty, 468 U.S at 442 ("policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time.").
ANALYSIS Defendant's Residence
The Court finds that Wright was neither formally arrested nor deprived of his freedom in any significant way either before, during or immediately after he was questioned at his residence on July 10, 2009. At no time during the initial questioning was Wright placed under arrest or led to believe that he could not end the questioning by retreating back into his home or by asking Officers Truver and Treadwell to leave. He was forthcoming and cooperative. He only was asked if he had seen or heard from Ms. Gardner since she had been missing or if he had any information that could help in their search.Wright agreed to accompany the officers back to NCCHQ to assist NCCPD in locating Ms. Gardner. Although Wright first was patted down and then transported to the police station in the back seat of Officer Truver's squad car, the Court is satisfied that the officers performed the pat-down to comply with NCCPD procedure, and used the squad car for Wright's convenience. Wright was asked if he wished to follow in his own vehicle and responded that he had did not have access to a vehicle at that time.
The Supreme Court has held that Miranda warnings are not required where a defendant, even if a suspect at the time, is not placed under arrest, voluntarily agrees to come to a police station, and is allowed to leave unhindered after a brief interview.
See Beheler, 463 U.S. 1121; see also Mathiason, 429 U.S. at 492.
Waiting Room
Upon arriving at the police station, Wright was escorted inside through the officers' entrance. He was not taken in through the prisoners' entrance; he was not handcuffed, deprived of his belongings, or processed in any way that would lead a reasonable person in that situation to believe that the police considered him anything more than a witness with information regarding a missing person.Officer Truver testified that he remained in the waiting room to prevent Wright from wandering into any areas that might contain weapons or confidential information. On cross-examination, Officer Truver conceded that he remained, in part, also to ensure that Wright did not leave before the detectives could interview him. Although Officer Truver's subjective intent may have been to restrain or prevent Wright from leaving before the interview, this intent never was manifested. "[A] policeman's unarticulated plan to detain a suspect has no bearing on the question of whether he [was] `in custody' at a particular time." Officer Truver's unarticulated intent could not have affected a reasonable person's belief as to whether he or she was free to go. The totality of the circumstances compels the conclusion that a reasonable person in similar circumstances would not believe that his or her freedom of movement was restricted to a degree that would amount to a de facto arrest.
State v. Sumner, 2003 WL 21963008, *11 (Del. Super. 2003).
Interview Room
The video tape of Detective Abram's interview shows that Wright was not "in custody" during the length of his interview. He was never placed under formal arrest, was never handcuffed and, but for a closed interview room door, was not restrained from ending the interview. The video shows that he still had possession of his cellular phone and used that phone during the interview to provide Detective Abram with the names and phone numbers of Ms. Gardner's friends and acquaintances.
Although Wright remained in possession of his cellular phone, he did not have any available minutes and may not have been able to place a call had he made an attempt to do so.
Wright volunteered information regarding his relationship with Ms. Gardner, his own criminal history, his and Ms. Gardner's drug use, and the names and contact information of Ms. Gardner's friends and acquaintances. Many times, Wright offered this information without solicitation and not in response to direct questioning. As Detective Abram and Officer Truver described in their testimony, Wright's demeanor was calm and cooperative, albeit sleepy. Although he never was informed that he could leave if he so wished, Wright never expressed any desire to leave or end the questioning.
In Chao v. State, the Delaware Supreme Court noted the significance of a defendant's refusal of a direct request by police. The Chao Court suggested that this refusal was evidence the defendant understood that she was not in custody and was not compelled to cooperate.
604 A.2d 1351, 1357 (1992) ("[f]inally, it is important to note that while Chao was still inside the "coercive environment" of the 115th Precinct after the interview, she refused a direct request by the police to help them locate Liu.").
Id. n. 9.
Although Wright did not refuse any of Detective Abram's requests, he did exhibit some understanding that he was not compelled to cooperate. While discussing the search of his cellular phone, his vehicle and his bedroom, he requested that the police not delete his voicemails, that they first obtain his brother's consent before searching the van, and that they did not damage his briefcase during the search. He assisted in the search by providing Detective Abram with the pass codes to both his phone and his briefcase.
In determining that the defendant had not been in custody during her interview, the Chao Court also noted that "[at] all times, [Chao] was free to move throughout the assembly room where she was questioned. Additionally, in line with what the police had consistently told her, upon completing the interview they left her in the public lobby free to go." Wright, likewise, was free to move about the interview room, and, at the conclusion of the interview, was released and provided transportation as Detective Abram promised.
Chao at 1357.
Wright states that he "was asked questions for over two hours by Detective Abram" before being advised of Miranda rights "at approximately 5:50 am." He argues that, under Missouri v. Seibert and State v. Mattison , "a two-tiered interrogation scheme, involving one statement without Miranda warnings, and one thereafter with Miranda warnings [is] unconstitutional." The Court concludes that both Seibert and Mattison are distinguishable from the present case.
Missouri v. Seibert, 542 U.S. 600 (2004).
State v. Mattison, 2005 WL 406342 (Del. Super. 2005).
In Seibert, the interrogating officer testified that he had been trained to intentionally withhold a Miranda warning until the defendant had given a confession and then to elicit a subsequent confession following the Miranda warnings. The Court stated that the object of such a scheme is "to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed."
Seibert, 542 U.S. at 605-606 ("At the suppression hearing, Officer Hanrahan testified that he made a `conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question `until I get the answer that she's already provided once.'").
Seibert, 542 U.S. at 611.
In Mattison, the defendant was taken into custody following a traffic stop. Before giving a Miranda warning, an officer questioned Mattison in an interrogation room about his alcohol and drug consumption prior to that traffic stop. Mattison responded that he had been drinking and had consumed three bags of heroin. During questioning, Mattison made comments suggesting additional criminal behavior. Specifically, Mattison admitted "that he committed crimes `to get the drugs.'" The officer then read the Miranda warnings and questioned him regarding these newly-discovered crimes.
Mattison, 2005 WL 406342, *1.
Id.
Id.
Id.
Id.
Id.
The issue before the Court was whether a mid-interrogation Miranda warning could "cure" the prior confession given without proper Miranda warnings. The Court, drawing from Seibert, used the following factors in considering whether mid-stream Miranda warnings would be effective: "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of the police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." In applying these factors, the Court concluded that "the post- Miranda warnings [could not] function effectively because the second confession was not separate and distinct from the first line of questioning."
Id. at *3.
Id. at *2 (quoting Seibert at 602).
Id. at *3.
In the present case, Wright had not been arrested, was not questioned regarding any known criminal activity, and Detective Abram did not appear to be using a two-tiered interrogation approach to elicit an incriminating response before Wright was advised of his Miranda rights. There was almost no overlap in the subject matter between the pre-and post- Miranda responses. Immediately prior to the reading of the Miranda rights, Detective Abram specifically informed Wright that he was not under arrest, that he was in a group of people that could be potential suspects in the event that something had happened to Ms. Gardner, and that the questions he was about to ask were going to focus on what he had done in the past weekend.
Detective Abram testified that he decided to inform Wright of his Miranda rights because during a break, Detective Abram became aware of the damage done to Mr. Gabrielli's car and read the arrest report of the incident at the Good Shot Bar. "[It] appeared there was more to it than just a simple harassment. So I was going to go back in and talk to him about a particular crime. That is why I advised him of his Miranda rights." The video and testimonial evidence show that Detective Abram did not attempt to use a two-tiered interrogation scheme to first elicit an incriminating response before Wright was aware of his rights and then coerce him into repeating those statements after a perfunctory reading of those rights. Seibert and Mattison are distinguishable from the present case.
CONCLUSION
During police interviews with defendant Clifford Wright at his residence and at New Castle County Police Department Headquarters, Wright was not under arrest. The totality of the circumstances demonstrates that there was no restraint on Wright's freedom of movement to a degree that would lead a reasonable person, in Wright's position, to believe he was in custody or deprived of his freedom in any significant way. THEREFORE, defendant Clifford Wright's Motion to Suppress is hereby DENIED. IT IS SO ORDERED.
Defendant Clifford Wright was indicted on two counts of first degree murder. The State is seeking the death penalty. The State intends to present the testimony of R. Stephen Mardigian as an expert in violent crime scene analysis.
Defendant has moved to exclude Mardigian's testimony. Defendant argues that Mardigian's conclusions are not crime scene analysis, but rather criminal profiling. The State presented Mardigian during a hearing before the Court on August 18, 2009. The State and defense counsel questioned the witness. The Court heard additional oral argument regarding admissibility on September 2, 2009.
In State v. Pennell, the Delaware Supreme Court allowed the testimony of an expert on crime scene analysis. Specifically, the expert testified as to whether three murders were committed by the same person. While the trial court permitted the expert to testify as to the "signature" aspects of the crimes, the trial court did not allow the introduction of "profile" evidence.
602 A.2d 48 (Del. 1991).
This motion presents an issue of first impression in Delaware. The crux of the question is whether the testimony proposed by the State is "profiling" or "violent crime scene analysis." Expert violent crime scene analysis testimony may be admissible if it passes muster under Delaware Rule of Evidence 702 and the Daubert analysis. Profiling testimony is not admissible evidence. The first dilemma is defining "profiling" and "violent crime scene analysis." The second determination is whether Mardigian's testimony, or a portion of his testimony, may be admitted into evidence.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
"Profiling" or "Violent Crime Scene Analysis"
"In the case of every horrible crime since the beginning of civilization, there is always that searing, fundamental question: what kind of person could have done such a thing?" Beginning in the late nineteenth century, "theorists have attempted to predict criminality based on physical, mental, and psychological attributes." One purpose of profiling and violent crime scene analysis is to assist law enforcement in focusing investigations and to suggest proactive techniques that might help to draw out the perpetrator. Profiling and crime scene analysis also have been used to obtain search warrants on the basis of behavioral evidence.
JOHN DOUGLA S MARK OLSHAKER, MINDHUNTER 26 (1995).
James Aaron George, Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results?, 61 Vand. L.Rev. 221, 225 (2008) (citing JOHN DOUGLAS ET AL., CRIME CLASSIFICATION MANUEL: A STANDARD SYSTEM FOR INVESTIGATING AND CLASSIFYING VIOLENT CRIMES 3-8 (2d ed. 2006).
DOUGLAS OLSHAKER, supra note 3, at 31.
Id. at 246 (for example, cases involving Robert Hansen in Alaska and Steven Pennell in Delaware).
The analyses attempt to answer three questions: what took place; why did it happen the way it did; and who would have committed this crime for these reasons? Former head of the Federal Bureau of Investigation Behavioral Science and Investigative Support Units, John Douglas, describes his methodology:
Id. at 36.
The fact of the matter is, profiling and crime-scene analysis is a lot more than simply inputting data and crunching it through. To be a good profiler, you have to be able to evaluate a wide range of evidence and data. But you also have to be able to walk in the shoes of both the offender and the victim.
You have to be able to re-create the crime scene in your head, you need to know as much as you can about the victim so that you can imagine how she might have reacted. You have to be able to put yourself in her place as the attacker threatens her with a gun or a knife, a rock, his fists, or whatever. You have to be able to feel her fear as he approaches her. You have to be able to feel her pain as he rapes her or beats her or cuts her. You have to try to imagine what she was going through when he tortured her for his sexual gratification. You have to understand what it's like to scream in terror and agony, realizing that it won't help, that it won't get him to stop. You have to know what it was like.
Id. at 173.
Courts consistently have declined to admit expert testimony that compares a specific defendant to a general profile. However, many courts have permitted expert testimony that compares a defendant to a profile developed from crime scene analysis. As a general rule, expert testimony that opines as to certain traits or behavior of a perpetrator, but is not based on crime scene analysis, is not admissible.
George, supra note 4, at 241.
State v. Pennell
602 A.2d 48 (Del. 1991).
In Pennell, Federal Bureau of Investigation ("FBI") profilers prepared an affidavit leading to a search warrant. Mardigian also worked on the Pennell case, and produced a profile for the New Castle County Police Department and the Delaware State Police to assist in narrowing the focus of the investigation and developing a proactive strategy. The profile suggested a white male, in his late twenties to early thirties, employed in one of the construction trades, driving a high-mileage van, cruising excessively for victims, exhibiting a macho image, having an ongoing relationship with a wife or girlfriend, enjoying dominating women, bringing his weapons of choice with him, destroying weapons after the crime, familiar with the area where he disposed of bodies and evidence, emotionally flat during the crimes, and likely to continue murdering until caught.
As it turned out, Steven Pennell fit the profile very closely. He was a thirty-one-year-old white male, worked as an electrician, drove a van with high mileage, cruised excessively looking for victims, exhibited a macho image, was married but enjoyed dominating women, had a carefully prepared "rape kit" in his van, attempted to destroy evidence, was familiar with the area of the disposal sites, was emotionally flat during the crimes, and killed repeatedly until he was apprehended.
Id. at 252-53.
There can be little question that without the profiling assistance, Pennell might not have been caught, or at least would not have been stopped when he was. The profile enabled law enforcement to use extremely courageous female police officers, posing as prostitutes, to engage in conversation with persons consistent with the profile. While pretending to haggle with Pennell over the price of her services, one police officer was able to use her fingernails to scrape carpet fibers from the door jamb of Pennell's van. Those fibers matched evidence previously obtained from one of the murder victims and the evidence was crucial to Pennell's arrest and conviction.
Pennell v. State, 602 A.2d 48, 50 (Del. 1991).
However, during Pennell's trial, John Douglas (who also worked on the case) was not permitted to testify as an expert as to the profile. Rather, the trial court limited his expert testimony to the "signature" aspects of the case. Signature was intended to demonstrate that the three murders were committed by the same person. Douglas testified that, while the MO varied, the signature did not. The signature common denominator in each case was the extremely unusual physical and sexual torture, and the apparent satisfaction the murderer received from inflicting pain. The methods of torture — the MO — varied according to the instruments and bindings used.
Id. at 52.
DOUGLA S OLSHAKER, supra note 3, at 253.
The trial court held that the admissibility of Douglas' opinion was governed by Delaware Rule of Evidence 702. At that time, DRE 702 provided:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
The court found the expert's extensive experience with signature crimes and crime analysis to be "specialized," and the expert's knowledge was not possessed by the average trier of fact. However, the court declined to admit the profile evidence, which attempted to link general characteristics of serial murderers to specific characteristics of the defendant.
Pennell, 602 A.2d at 55.
Floray v. State
720 A.2d 1132 (Del. 1998).
The Court found that the proponent of the expert failed to establish any behavioral evidence that the jury would need assistance to understand.
The use of expert evidence in child sexual abuse prosecutions is limited "to assist the finder of fact, whether judge or jury, in evaluating the psychological dynamics and resulting behavior patterns of alleged victims of child abuse, where the child's behavior is not within the common experience of the average juror." In such a case, expert testimony must be "given in general terms and directed to behavior factors in evidence [and may not attempt] to quantify the veracity of a particular witness or provide a statistical test for truth telling." The purpose of the expert testimony is only "to provide the trier of fact with background concerning the behavior of the alleged child abuse victim based on the expert's experience and training so that the jury or judge, may place the child witness' testimony in a behavior context.
Id. at 1335 (quoting Wheat v. State, 527 A.2d 269, 275 (Del. 1987).
Proffered Expert Testimony
The State wishes to present the testimony of R. Stephen Mardigian as an expert in the field of violent crime scene analysis. Mardigian is an Executive Vice President and Violent Crime Consultant with Academy Group, Inc. ("AGI") of Manassas, Virginia. AGI is a privately-owned forensic behavioral science firm. The State asked Mardigian to determine what, if any, conclusions he might be able to draw about the murderer's motivation for the crimes, the amount of planning, what (if any) steps the offender took to avoid detection, and what (if any) relationship existed between the offender and victims. Mardigian was not asked to opine as to whether defendant (or any other particular person) was responsible for the crimes.Mardigian stated in his report that his opinions are based upon a review of the materials submitted by the State and are the result of the knowledge drawn from personal investigative experience, educational background, and research, as well as 31 years of active law enforcement experience. Mardigian's experience includes 11 years as a Field Special Agent with the FBI conducting investigations involving diverse violent crime matters, followed by 13 years as a Supervisory Special Agent assigned to the FBI's National Center for the Analysis of Violent Crime (NCAVC), FBI Academy, Quantico, Virginia, as a Violent Crime Analyst and Criminal Profiler. Throughout his career, Mardigian assessed hundreds of violent crime cases for law enforcement agencies nationwide, including: homicide, rape and sexual assault, child abduction and molestation, arson, bombing, extortion, product tampering, stalking, workplace violence, domestic and international terrorism, and threat assessment.
Mardigian described his task as follows:
A violent crime analysis of this matter was initiated to identify the motivation for the crime, the degree of criminal sophistication displayed by the offender, how much planning went into the commission of the crime, what steps the offender took to avoid identification, and what the relationship was between the offender and the victims. The analysis includes an assessment of the location of the crime, the location of body disposal, an evaluation of victimology and an assessment of the injuries sustained by the victims.
The process of conducting a Violent Crime Analysis involves a methodology that is similar to that traditionally used by law enforcement officers during the course of their investigations.
The resulting report reached the following conclusions:
• Overall, the circumstances, based from review of the facts of the case taken in totality, allow me to opine that these murders were not random or opportunistic .
• It is also my opinion that this is not a stranger-related homicide. These deaths were caused by someone known to the victims.
• It is opined that the offender exhibited "OVERKILL" during the commission of these murders inasmuch as each victim's body showed signs of considerably more trauma that was actually necessary to end life. Such conduct indicates personalized anger and sustained aggression (rage) on the part of the offender. Such behavior is consistent with an offender who knows their victims.
• A stranger would not be expected to have the need to spend the considerable amount of time and effort exhibited carefully cleaning-up the scene, preparing the bodies for removal and locating an isolated disposal site for concealment to delay discovery.
• The way the bodies were found supports the opinion that this offender displayed a need to create the appearance that the victims were gone from [crime scene 1]. The offender's extensive efforts potentially exposed the offender to greater risk as additional time and activity at crime scenes can elevate the potential exposure to being observed or connected to the crime.
• The need to move, hide, and destroy the victims' bodies also may suggest the offender was concerned that law enforcement officials would be knocking on the offender's door and therefore needed time to distance himself from the crime and potentially establish an alibi.
• Based upon a reasonable degree of certainty within the field of Violent Crime Analysis, the actions of the offender, given the nature and severity of these murders (demonstrated by the interpersonal aggression which resulted in the death of both victims) it appears evident these victims were selected by the offender, likely as a result of some underlying emotional conflict that propelled the offender to kill. The targeting is supported by the evidence of awareness demonstrated by the offender at the crime scene and the overkill engaged at the crime scene.
DISCUSSION
In Pennell, the Delaware Supreme Court affirmed the exclusion of expert profiling testimony, and upheld the admissibility of expert crime scene analysis testimony. In that case, the distinction was relatively clear. The profiling evidence suggested specific traits of the murderer — such as gender, race, age, trade, type of automobile, relationships with women. The admitted expert testimony was limited to "linkage," or the "signature" aspects of the crimes. In other words, the expert opined that three murders were committed by the same offender, based upon the sadistic manner in which the victims were tortured and the methods by which they were killed.This case presents an issue of first impression in Delaware. Linkage is not relevant in this case. According to Mardigian, linkage analysis is an attempt to interrelate the facts of two or more independent crimes to determine whether the same offender may have been responsible. In contrast, profiling is a development of characteristics or traits relevant to a specific offender (such as race, ethnicity, age, personality features, occupation), whether the offender is known or unknown.
The State argues that Mardigian's testimony is admissible crime scene analysis. The defense contends that the expert's opinion is profiling, and should be excluded.
The Court will focus on the substance of the proffered evidence. The terms "profiling" and "crime scene analysis" often are used interchangeably. Semantics and titles cannot be outcome determinative.
Profiling and crime scene analysis are not mutually exclusive. The analyses are overlapping and utilize virtually identical methodologies to a certain point. During the September 2 hearing, Mardigian testified that the FBI's criminal investigative process begins with crime analysis and an interpretation of the apparent crime scene behavior. "Violent crime analysis also can be carried on to identify the profile. . . . Even though it's a component of the same analytical process, [profiling is] a separate issue, separate factor."
Delaware Rule of Evidence 702: Admissibility of Expert Testimony
Delaware Rule of Evidence 702 governs the admissibility of expert testimony and permits the presentation of "scientific, technical or other specialized knowledge" if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." To be admissible, the testimony must be (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the witness must have applied the principles and methods reliably to the facts of the case.
D.R.E. 702.
Id.
D.R.E. 702 is substantially similar to Federal Rule of Evidence 702. In M.G. Bancorporation v. LeBeau, the Delaware Supreme Court followed the United States Supreme Court's interpretation of F.R.E. 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. In Daubert, the United States Supreme Court held that F.R.E. 702 requires trial judges to ensure that all expert testimony is not only relevant, but reliable.
737 A.2d 513, 521-22 (Del. 1999).
509 U.S. 579 (1993).
Id. at 589.
To fulfill the role of gatekeeper, the trial judge must determine whether:
1. the witness is qualified as an expert by knowledge, skill, experience, training or education;
2. the evidence is relevant and reliable;
3. the expert's opinion is based upon information reasonably relied upon by experts in the particular field;
4. the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and
5. the expert testimony will not create unfair prejudice or confuse or mislead the jury.
Id. at 590-94.
Bowen v. E.I. DuPont de Nemours Co., 906 A.2d 787, 795 (Del. 2006) (citing Tolson v. State, 900 A.2d 639, 645 (Del. 2006); Eskin v. Carden, 842 A.2d 1222, 1227 (Del. 2004)).
A trial judge must determine whether an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline. Just because an expert is qualified in a field does not automatically make the opinion reliable. Expert knowledge requires more than unsupported speculation. The trial judge must determine whether the expert, though qualified, can produce a sufficiently informed opinion that is testable and verifiable. Only after the trial judge determines that the expert proffers a "relevant, reliable, validated, and, therefore, trustworthy" opinion, can the expert offer the opinion to the jury and be subject to cross-examination.
Id. at 784.
Eskin, 842 A.2d at 1228; see Goodridge v. Hyster Co., 845 A.2d 498, 503 (Del. 2004).
Daubert, 509 U.S. at 590.
Eskin v. Carden, 842 A.2d 1222, 1228 (Del. 2004); see also Daubert, 509 U.S. at 593 (whether a theory or technique will assist the trier of fact as scientific knowledge will often rely on whether it can and has been tested).
Potter v. Blackburn, 850 A.2d 294, 299 (Del. 2004) (quoting Mason v. Rizzi, 2004 WL 439690, at *4 (Del.)).
The Daubert Court provided a nonexhaustive list of factors for trial judges to consider in determining whether expert testimony is sufficiently reliable:
1. whether a theory or technique can or has been tested;
2. whether it has been subjected to peer review and publication;
3. whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and
4. whether the theory or technique enjoys general acceptance within a relevant community.
Daubert, 509 U.S. at 590-94; see General Motors Corp. v. Grenier, 2009 WL 2581722, at *8-9 (Del. 2009).
Expert Qualifications
It is not seriously disputed that Mardigian is qualified as an expert in violent crime scene analysis based upon his knowledge, skill, experience, training and education. Mardigian served 31 years as an FBI Supervisory Special Agent, regional field office program manager, violent crime assessor and administrator for the FBI's National Center for the Analysis of Violent Crime (NCAVC). He has conducted detailed evaluations of violent crime cases to assist criminal justice agencies. He participated in and directed ongoing NCAVC violent crime research and development projects such as the Crime Classification Manual, the Child Killer-Infant Abductor, and Serial Rapist studies. He has provided analyses of cases involving: homicide, sexual assault, child abduction and molestation, arson, bombing, extortion, product tampering, stalking, workplace violence, domestic and international terrorism, and threat assessment.Mardigian currently is Executive Vice President and violent crime consultant with the Academy Group, Inc., a privately-owned forensic behavioral science firm. He has lectured extensively in the United States and abroad concerning violent crime assessment, interview and interrogation tactics, subject motivation, offender characterization, and threat assessment. Mardigian has offered expert witness testimony on crime analysis issues in numerous jurisdictions.
Relevance
Crime scene analysis clearly is relevant in this case, as it is in all murder trials.
Reliability
Has the theory or technique been tested?Mardigian conceded that the types of conclusions set forth in his report in this case have not been statistically or quantitatively tested. Based upon anecdotal feedback from law enforcement agencies assisted by Mardigian and his colleagues, he estimates that the violent crime scene analysis opinions provided are accurate about 80 or 85% of the time. Therefore, there is no basis to conclude that the theories and techniques actually have been tested.
Is there a known rate of error and are there controlling standards?
For the same reasons in response to the previous question, the answer must be that there are neither a known rate of error nor controlling standards.
Have the opinions been subjected to peer review and publication?
___ Much has been published on the topic of crime scene analysis. The relevant peer group may be those trained in the processes and methodologies used by the FBI's National Center for the Analysis of Violent Crime and organizations such as the International Criminal Investigative Fellowship and the International Homicide Investigator's Association. However, there does not appear to be a peer-review process per se, as it is practiced in other scientific, technical or specialized fields. Has the theory or technique enjoyed general acceptance within a relevant scientific community?
Based upon the expert's testimony and the case law discussing violent crime scene analysis, the court concludes that Mardigian's methodology may be consistent with other experts in the field. However, the record is not sufficient to make a definitive ruling.
Assisting the Trier of Fact
It is clear that the expert's well-organized report would provide a useful blueprint for the trier of fact to evaluate the crime scene evidence. However, that is not the test. The question is whether the testimony will help the jury understand the evidence or determine a fact in issue.
Mardigian opines that the murderer was not a stranger to the victims. The victims were attacked in a home, as opposed to a more high-risk public area. There was no evidence of forced entry or stolen items. The offender apparently spent considerable time at the crime scene in order to clean and remove evidence. The victims were removed from the scene in what may have been an attempt to delay discovery. The victims were transported in the minivan, with the back seat removed, which was kept in the attached garage. The bodies were partially burned, using a gas can from the backyard storage shed to transport the accelerant. There was evidence of planning, including a murder weapon brought to the scene.
The Court finds that all of these facts may be understood and evaluated by average jurors. Specialized knowledge and expert testimony are not necessary to enable the triers of fact to reach a conclusion whether or not the killer was someone who knew the victims.
See Wheat v. State, 527 A.2d 269, 272 (Del. 1987).
Mardigian also states that much more force was used than necessary to kill the victims. He opines that such "overkill" indicates personalized anger and sustained aggression or rage. Whether or not the victims suffered trauma in excess of that necessary to kill is a subject more appropriate for the testimony of a medical expert. The conclusions that may be drawn from overkill arguably are not within the knowledge of the average person. Nevertheless, there is no basis to admit Mardigian's conclusion because it does not meet the previously-discussed admissibility factors for reliability. The theory has not been tested or subjected to a peer review process, and there is no known rate of error or controlling standard.
Mardigian further concludes that by wrapping the victims' heads inside plastic, the offender "depersonalized" them. Mardigian opines that depersonalization is an action taken by the murderer to obscure the victim's identity so that the murderer does not have to look at what has been done. However, Mardigian also stated that depersonalization has the practical purpose of minimizing blood loss, or smearing, as bodies are moved. This issue of depersonalization also does not appear to be reliable because it has not been tested, subjected to a peer review process, and there is no known rate of error or controlling standard.
Unfair Prejudice, Confusion, Potential to Mislead the Jury
Evidence that is not sufficiently reliable, and will not assist the jury in determining a fact in issue, is a fortiori unfairly prejudicial. Mardigian's reasoning and conclusions are largely within the province of the average and reasonable juror. The evidence underlying the proffered testimony would not be particularly confusing. In the absence of expert testimony, the trier of fact may apply its common sense and life experience to accept or reject the conclusions argued by the State.
CONCLUSION
As the gatekeeper of the admissibility of expert testimony, the Court holds that the State's proffered crime scene analysis testimony may not be presented to the jury in the trial of this case. Mardigian is qualified and the evidence is relevant. However, the opinions have not been quantifiably tested, there are no known error rates or controlling standards, the theories and techniques have not been subject to the scrutiny of peer review, and it is unclear whether the opinions are those generally accepted by the relevant community. As such, the opinions are not sufficiently reliable to be admitted at trial. The conclusions desired by the State may be accepted, or rejected, by average jurors using their collective knowledge, experience, and common sense, after considering the evidence.
THEREFORE, Defendant Clifford Wright's Motion to Exclude the Testimony of R. Stephen Mardigian is hereby GRANTED.
IT IS SO ORDERED.