Opinion
Def. ID# 1810004048
01-03-2020
Re: State v. A. J. McMullen
E. SCOTT BRADLEY JUDGE David Hume, IV, Esquire
Georgia C. Pham, Esquire
Department of Justice
114 East Market Street
Georgetown, DE 19947 John P. Daniello, Esquire
Michael A. Capasso, Esquire
Office of the Public Defender
14 The Circle, 2nd Floor
Georgetown, DE 19947 Dear Counsel:
This is my decision after the bench trial of defendant A. J. McMullen.
The Charges
The Defendant is charged with:
(1) Murder in the First Degree; and
(2) Possession of a Firearm During the Commission of a Felony.
These charges relate to the murder of Darrin Gibbs on November 16, 2016.
The Witnesses
1. Michelle Wolf - Wolf is a nurse who was driving to her home in Millsboro when she saw Darrin lying on his stomach on West Monroe Street. Wolf was the first known person on the scene and testified about what she saw.
2. Stephen Schroeck - Schroeck is a Delaware correctional officer who was on his way home and pulled up behind Wolf, who was stopped in the roadway. Schroeck testified about what he saw.
3. Delaware State Police Detective Mark Csapo - Detective Csapo is a detective in the homicide unit of the Delaware State Police. Detective Csapo was the lead investigator and he testified about his investigation.
4. Delaware State Police Officer Roger Cresto - Officer Cresto is a crime scene investigator in the homicide unit of the Delaware State Police. Officer Cresto testified about evidence that he recovered at the scene and from Darrin's autopsy.
5. Keshawn Gibbs - Keshawn Gibbs is also known as "Geek" or "Geeker." Keshawn Gibbs knew Darrin and Kenton Williams very well. Keshawn Gibbs was Darrin's first cousin and he had known Darrin his whole life. Keshawn Gibbs grew up with Kenton Williams, attended school with Kenton Williams, partied with Kenton Williams, and lived in the same neighborhood as Kenton Williams. Keshawn Gibbs did not know the Defendant well, testifying he had only met the Defendant one time before Darrin's murder. Keshawn Gibbs testified about a rumor that Darrin, Kenton Williams and the Defendant had robbed a drug dealer and a conversation he had with Kenton Williams and the Defendant about it.
6. Ashley Donaway - Ashley Donaway was in a "friends with benefits" relationship with Kenton Williams. Ashley Donaway testified about the day of November 16, 2016, which included spending the evening partying with Kenton Williams in a room at the Classic Motel in Georgetown, Delaware, the three trips she took with Kenton Williams to go to the Millsboro Village Apartments, and a trip she took the next day to a motel in Seaford where she saw Kenton Williams and the Defendant. The first trip to the Millsboro Village Apartments was to get "Little Bro's" clothes. The second trip to the Millsboro Village Apartments was to get "Little Bro." The third trip to the Millsboro Village Apartments was to take Kenton Williams there so that he could get a green box car. Ashley Donaway also testified about (1) seeing Kenton Williams and "Little Bro" in a motel by the Arby's in Seaford the next day, (2) seeing Kenton Williams and "Little Bro" leave the motel in a green box car and go to the Millsboro Village Apartments, (3) driving herself from Seaford to the Millsboro Village Apartments, (4) taking Kenton Williams back to the motel in Seaford and checking out, (5) seeing Kenton Williams go to a residence and recover a duffle bag from a shed, and (6) seeing the contents of the duffle bag. Ashley Donaway did not know the Defendant and did not know who "Little Bro" was, but she told Detective Csapo that "Little Bro" also went by "South" and lived in the Millsboro Village Apartments with his girlfriend who has a green car.
7. Mahifal Sinh-Surubha - Sinh-Surubha is an assistant manager at the Classic Motel in Georgetown, Delaware. Sinh-Surubha had a document showing that Ashley Donaway rented a room at the Classic Motel on November 16, 2016.
8. Detective David Mover - Officer Moyer is a Millsboro Police Officer and he was the first police officer on the scene of Darrin's murder. Moyer testified about what he saw.
9. Billie Jo Elliott - Elliott is the property manager at the Millsboro Village Apartments. Elliott testified about the video at the apartments.
10. Robert Legates - Officer Legates is a Millsboro Police Officer who recovered the video for November 16, 2016 for the Millsboro Village Apartments. Legates also testified about the layout of the nine buildings in the apartment complex.
11. Kenton Williams - Kenton Williams is also known as "Meatball." Kenton Williams and Darrin were friends who had known each other for over 10 years. Kenton Williams and Darrin hung out together and engaged in criminal acts together. Kenton Williams also knew the Defendant and, according to the Defendant's girlfriend, was one of the Defendant's few close friends in Delaware. Kenton Williams testified (1) about he and the Defendant robbing a drug dealer named "Cos," (2) meeting with the Defendant and Keshawn Gibbs to discuss the robbery, (3) spending the night with Ashley Donaway at the Classic Motel on November 16, 2016, (4) the three trips he and Ashley Donaway took to the Millsboro Village Apartments that night, (5) going to the Millsboro Village Apartments on the third trip to get the Defendant's girlfriend's green Scion and taking it back to the Classic Motel, (6) taking the Defendant to the Super 8 Motel in Seaford the next day and the Defendant throwing a black bag with a gun in it over the side of a bridge, and (7) hiding and recovering the duffle bag and its contents that he had gotten from the Defendant on the first trip that he and Ashley Donoway made to the Millsboro Village Apartments. Kenton Williams identified the three men leaving the Millsboro Village Apartments at approximately 11:37 p.m. as Albert Green, Darrin and the Defendant, and the two men returning to the Millsboro Village Apartments at 11:55 p.m. as Albert Green and the Defendant. Kenton Williams also testified that the Defendant told him that Albert Green was with the Defendant when the Defendant murdered Darrin. Kenton Williams also testified about admissions the Defendant made to him regarding Darrin's murder. These admissions included the Defendant telling Kenton Williams that (1) "he"- meaning Darrin - "has gotta go," (2) that "I did it for the both of us," and (3) that he dropped a bullet at the scene of Darrin's murder.
12. Albert Green - Green is known as "LT." Green had known Darrin for about a year and the Defendant for a couple of months. Albert Green testified about the evening of November 16, 2016. Albert Green testified that he, Darrin and the Defendant left the Millsboro Village Apartments to go see Darrin's people to buy drugs. They walked in the direction of where Darrin was later found. Albert Green broke off from Darrin and went to the Brandywine Apartments to buy some weed. Albert Green came out of the Brandywine Apartments and met up with the Defendant and went back to the Defendant's girlfriend's apartment in the Millsboro Village Apartments. Albert Green identified the men on the video at 11:37 p.m. as himself, Darrin and the Defendant, and on the video at 11:55 p.m. as himself and the Defendant. Albert Green denied being present when Darrin was murdered.
13. Terry Toomey - Toomey is an inmate at the Sussex Correctional Institution. Toomey and the Defendant were cellmates for two to three weeks in 2017. Toomey testified that the Defendant told him that he shot "Gank" in the back of the head by the baseball field in Millsboro.
14. Keith Collins - Officer Collins is in the evidence unit at the Delaware State Police. Collins testified about taking a small black handbag with a gun in it from a scuba diver who had just recovered it from Williams Pond on June 7, 2018.
15. Joshua Riley - Officer Riley is a detective in the Delaware State Police intelligence unit. Officer Riley is also a member of the Delaware State Police scuba team. Officer Riley testified about finding a black bag with a handgun in it in seven feet of water by a small bridge over Williams Pond in Seaford.
16. Nick Leno - Officer Leno is a detective with the Delaware State Police Forensic Firearm Services Unit. Officer Leno testified about receiving the unfired bullet and fired shell casing recovered from the scene, the fired bullet and fragments recovered from Darrin's head, and the black bag and handgun recovered from Williams Pond.
17. James Cadigan - Cadigan is a firearms and toolmark examiner with the Delaware State Police Forensic Firearms Support Unit. Cadigan testified that the fired shell casing recovered from the scene was fired from the gun recovered from Williams Pond and that he could not rule one way or the other whether the fired bullet recovered from Darrin's head was or was not fired from the gun.
18. Shernell Perry - Shernell Perry was the Defendant's girlfriend. The Defendant called her "Moca" or "Nell." Shernell Perry had exchanged letters with the Defendant for two and a half to three years while he was incarcerated in North Carolina. Shernell Perry visited the Defendant for nine to ten months while he was in North Carolina. Eventually, the Defendant came to stay with Shernell Perry at the Millsboro Village Apartments. Shernell Perry testified about (1) seeing Darrin, Albert Green and the Defendant in the breezeway outside her apartment on the evening of November 16, 2016, (2) having an argument with the Defendant later that night about men hanging around her apartment with the Defendant and the Defendant drinking and partying, (3) the Defendant packing a black duffle bag with clothes to leave her apartment, (4) Kenton Williams coming to pick up her green Scion to take the Defendant away, (5) the Defendant telling her that "I killed him," and "I did it to that boy," meaning Darrin, and (6) the Defendant telling her that if Kenton Williams took the Defendant to North Carolina, Kenton Williams would not be coming back. Shernell Perry also testified about Kenton Williams sending his cousin over to her apartment to recover stolen drugs.
19. Nicholas Potter - Potter is a correctional officer who lived in Houston Acres, which is near where Darrin was killed. Potter testified about a man named "JR," who is James Lewis, telling him that the man who got killed had stolen $500 from someone that morning who threatened to kill him.
20. Katie Kilian - Kilian lived with Nicholas Potter and offered similar testimony as Potter about what "JR" said.
21. Jennie Vershovsky, M.D. - Dr. Vershovsky performed the autopsy on Darrin. Dr. Vershovsky did not testify. Instead, the parties stipulated to the admission of her autopsy report into evidence.
The Scene
Darrin Gibbs, a 30-year-old male, was found by a motorist on her way home from work lying on his stomach with his face to his side on West Monroe Street near its intersection with Houston Street in Millsboro, Sussex County, Delaware, at approximately 11:50 p.m. on November 16, 2016. Darrin's hands were still in his pockets and he appeared to be dead from a gunshot wound to the back of his head. No one else was around. The motorist called 911 and the police arrived within minutes. Darrin was also known as "Gank" or "Gankster." Houston Acres and the Mill Chase Apartments are near the scene. The Millsboro Village Apartments are .6 of a mile away. The Defendant lived with his girlfriend, Shernell Perry, at the Millsboro Village Apartments.
Items Recovered From the Scene
The police found at the scene (1) an unfired 9mm Hornaday bullet located about 15 feet from Darrin; (2) a fired 9mm Hornaday shell casing located in the grass just off the road about five feet from Darrin; (3) a Gatorade plastic bottle located about 55 feet from Darrin; and (4) a black cap with a hole in it located under Darrin's face.
Forensic Tests
There was no DNA on the unfired bullet, fired shell casing and Gatorade bottle. There were no fingerprints on the unfired bullet and fired shell casing. There were fingerprints on the Gatorade bottle. They did not match the Defendant, Albert Green or Kenton Williams.
The Autopsy
Jennie Vershovsky, M.D., an assistant medical examiner with the Delaware Division of Forensic Science, conducted an autopsy on Darrin and determined that the cause of his death was a gunshot would to the back of his head and that the manner of his death was homicide. Vershovsky determined that the direction of the bullet was from back to front. Vershovsky located a deformed jacketed bullet and fragments of metal and bullet jacket from Darrin's head.
Items Recovered From the Autopsy
1. The bullet and fragments of metal and bullet jacket.
2. Darrin's clothes and shoes, three empty white glycine baggies, two empty blue glycine baggies, two empty clear baggies, a Dunkin Donuts receipt, change, a lighter, a wrench, and a cleaning cloth for eyeglasses.
The Video
The police obtained video of the exterior of the Millsboro Village Apartments in Millsboro, Delaware, for November 16, 2016. Darrin lived with his girlfriend, Deshonda Rickards, in the 800 building of the Millsboro Village Apartments. There are nine buildings in the apartment complex. The Defendant and his girlfriend lived in a building behind the 800 building. Darrin arrived in a white car at his girlfriend's apartment at about 10:29 p.m. Instead of going into his girlfriend's apartment, Darrin walked around to the back of building 800. The video shows three men in a breezeway outside of the area where Shernell Perry lived. Shernell Perry testified that when she went to throw out a bucket of mop water that night, she saw Darrin, Albert Green, and the Defendant in the breezeway. At about 10:30 p.m. Darrin is seen going into his girlfriend's apartment. At approximately 11:37 p.m. the video shows three men walking away from the apartment complex. There is a man in white pants with another man walking next to him. A third man is walking behind those two men. Albert Green identified himself as the man in the white pants, Darrin as the man walking next to him, and the Defendant as the man walking behind them. At approximately 11:55 p.m. a man in white pants and a man walking behind him are seen returning to the apartment complex. Albert Green identified himself as the man in the white pants and the Defendant as the man walking behind him. Kenton Williams made the same identification of the men at both times.
The Handgun
A Delaware State Police scuba diver found a black handgun in a small black plastic bag with handles in the Williams Pond in Seaford, Delaware, on June 7, 2018. The gun and black bag were found in seven feet of water on the north side of the Tharp Road bridge that goes over Williams Pond. The side of the bridge where the gun and black bag were found is the smaller body of water. James Cadigan, a firearms and toolmark examiner with the Delaware Forensic Firearms Services Unit, examined the handgun, the fired shell casing found at the scene, and the bullet and fragments removed from Darrin's head. James Cadigan identified the handgun as a 9mm luger caliber Hi-Point semi-automatic pistol with a barrel rifled with nine lands and groves and a left twist. Cadigan testified that this gun's rifling is unique to this make of gun. Cadigan testified that the fired shell casing was a 9 mm Hornady brand cartridge. Cadigan testified that the bullet was from the .38 caliber family, which includes a 9mm luger and was fired from a barrel rifled with nine lands and groves with a left twist. Cadigan testified that (1) the fired shell casing was fired in the handgun; and (2) he could not determine if the bullet was fired or not fired from the handgun. There were agreements in class characteristics but insufficient agreement in individual characteristics to make a determination. The fragments were of no value.
The Defendant's Whereabouts Before and After Darrin Was Killed
Darrin was killed sometime between 11:37 p.m. and 11:50 p.m. on November 16, 2016. That is established by the video from the Millsboro Village Apartments and the motorist's 911 call. Darrin is seen walking with Albert Green and the Defendant away from the apartments at approximately 11:37 p.m. The motorist's call to 911 to report finding a body in the road came in at approximately 11:50 p.m.
The Defendant's whereabouts around the time of Darrin's murder are established by the video, Shernell Perry's testimony, Albert Green's testimony, Kenton Williams's testimony, the forensic gun evidence, and the Defendant's own statements. Ultimately, this evidence puts the Defendant at the murder scene.
1. Shernell Perry testified that Darrin, Albert Green and the Defendant were in the breezeway outside of her apartment. The video puts this at around 10:30 p.m.
2. The video shows the Defendant, Darrin Gibbs and Albert Green walking away from the Millsboro Village Apartments at 11:37 p.m. The apartments are .6 of a mile from where Darrin was found dead.
3. Albert Green's testimony puts the Defendant even closer to the murder scene. Albert Green had known Darrin for about a year. Albert Green had known the Defendant for a couple of months from being around the Millsboro Village Apartments. The Defendant's girlfriend, Shernell Perry, lived at the Millsboro Village Apartments and Albert Green lived a few doors down from her. Albert Green testified that he, Darrin and the Defendant were waiting for a drug delivery. When the drugs did not arrive, Albert Green testified that he, Darrin, and the Defendant left the Millsboro Village Apartments at around 11:00 p.m. to go see Darrin's people to buy drugs. The three men walked in the direction of the location where Darrin would be found dead. Before getting there, Albert Green split off and went into the Brandywine Apartments to buy some weed. Albert Green ultimately reconnected with the Defendant, who was just walking and not talking on his phone. Albert Green and the Defendant then went back to the Millsboro Village Apartments and are seen on the video around 11:55 p.m. Albert Green did not know that Darrin had been killed and was not worried by Darrin's absence because Darrin was going to see his people. Albert Green denied being with the Defendant when Darrin was killed. In any event, Albert Green's testimony puts the Defendant even closer to the murder scene.
4. Kenton Williams testified that, as he was driving the Defendant from the Classic Motel in Georgetown to the Super 8 Motel in Seaford, they went over a bridge and that the Defendant threw a black bag out of the right side of the car. Kenton Williams testified that the Defendant told him there was a gun in the black bag. This was on or about November 17, 2016. Kenton Williams testified that they were driving on Middleford Road and had taken the second right after the VFW and were going towards the Wal-Mart when they went over the bridge. Kenton Williams testified that the bridge was before the Wal-Mart. The bridge is before the Wal-mart given the direction they were going. The scuba diver found the black bag with a handgun in it on what would have been the right side of the car Kenton Williams was driving. This testimony puts the handgun in the Defendant's possession.
5. The ballistic evidence puts the Defendant at the murder scene. The police found a fired 9mm Hornaday shell casing at the scene. The forensic examiner concluded that the fired shell casing that was found at the scene was fired in the handgun found in Williams Pond. Kenton Williams' testimony ties the gun to the Defendant and the forensic evidence ties the gun to the murder scene.
6. And lastly, one of the Defendant's statements to Kenton Williams puts the Defendant at the scene. Kenton Williams testified that the Defendant told him that he dropped a bullet at the scene. The police found an unfired 9mm bullet at the scene.
The Defendant's Actions Post- Murder
What the Defendant did after Darrin was murdered is relevant because during this time the Defendant admitted to Kenton Williams that he killed Darrin and tried to dispose of the murder weapon. The Defendant's actions are established by the testimony of four people - Shernell Perry, Ashley Donaway, Kenton Williams and Albert Green, and the Defendant's own statements.
Early Evening at the Classic Motel
On November 16, 2016, Ashley Donaway picked up Kenton Williams in her car at the Old Landing Apartments and went to the Classic Motel in Georgetown with plans to spend the night there. Ashley Donaway and Kenton Williams planned to have sex, drink alcohol and use drugs. Around 10 p.m., Ashley Donaway went to the nearby McDonalds for food and a nearby liquor store for alcohol. Ashley Donaway drove her car and was gone for 15 - 20 minutes. Kenton Williams was taking a shower while she was gone and had no car to leave the motel. Kenton Williams testified that Darrin texted and/or called him for a ride while he was having sex with Ashley Donaway. Kenton Williams never gave Darrin a ride. Kenton Williams testified that at about 10 p.m. the Defendant called, panting, and said he was on Union Street in Millsboro and needed Kenton Williams to come get him. Union Street is near the Millsboro Village Apartments. The Defendant then called back and said never mind according to Kenton Williams. Ashley Donaway and Kenton Williams then described the three trips they made from the Classic Motel in Georgetown to the Millsboro Village Apartments.
The First Trip
Ashley Donaway and Kenton Williams went to the Royal Farms in Georgetown. Kenton Williams testified that the Defendant called him while he and Ashley Donaway were there and asked Kenton Williams to come to the Millsboro Village Apartments. Kenton Williams told Ashley Donaway that they had to go to the Millsboro Village Apartments to get clothes that belonged to "Little Bro." Ashley Donaway did not know who "Little Bro" was. Ashley Donaway and Kenton Williams then went to the Millsboro Village Apartments. Kenton Williams testified that the Defendant gave him a red, blue and yellow bag. Ashley Donaway was not in a position to see "Little Bro" or the transfer of the bag. The transfer of the bag from the Defendant to Kenton Williams was also touched on by the testimony of Shernell Perry and Albert Green. Albert Green testified that after he and the Defendant got back to the Millsboro Village Apartments, he saw the Defendant give Kenton Williams a duffle bag. Shernell Perry testified that she and the Defendant argued that night and the Defendant decided to leave the apartment. According to Shernell Perry, the Defendant packed a black duffle bag and left with it. Ashley Donaway saw Kenton Williams with the duffle bag and both she and Kenton Williams testified that Kenton Williams took it back to the Classic Motel. Kenton Williams testified he did not look inside the bag. Kenton Williams testified that Tavon Baines called him while he was at the Classic Motel and told him that Darrin was dead.
The Second Trip
Kenton Williams testified that the Defendant asked him to come to the Millsboro Village Apartments and get him. Shernell Perry testified that she and the Defendant both called Kenton Williams to come pick up the Defendant. Ashley Donaway and Kenton Williams went to the Millsboro Village Apartments to the same spot as before and picked up "Little Bro." Ashley Donaway did not know who "Little Bro" was. Kenton Williams testified that they picked up the Defendant. All three went back to the Classic Motel. Kenton Williams and the Defendant went into the bathroom. Kenton Williams testified that the Defendant told him "he had to do it for the both of us." Kenton Williams, who by then knew that Darrin was dead, took this to mean that the Defendant had killed Darrin.
The Third Trip
Kenton Williams told Ashley Donaway that they had to go to the Millsboro Village Apartments again. They went and the Defendant stayed behind at the Classic Motel. Kenton Williams picked up the Defendant's girlfriend's car, a green Scion that was box shaped. Kenton Williams drove the Scion back to the Classic Motel. Kenton Williams testified that Ashley Donaway drove herself to the Classic Motel and then left. Ashley Donaway testified that she went to her mom's house. Shernell Perry testified that Kenton Williams did come to her apartment that night and get the keys to her green Scion. Shernell Perry testified she did not get her car back until the next day. In any event, Kenton Williams and the Defendant were at the Classic Motel as November 16, 2016 turned to November 17, 2016.
The Trip to Seaford
On November 17, 2016, according to Kenton Williams, he and the Defendant went to the Super 8 Motel in Seaford. Kenton Williams was driving the Scion. The Defendant was in the passenger seat. On the way, they stopped and put the duffle bag in a shed on what used to be Kenton Williams' grandmother's property on Middleford Road. Kenton Williams and the Defendant then drove over the bridge at Williams Pond where the Defendant threw a black bag off the bridge. Kenton Williams testified that the Defendant told him there was a gun in the black bag. The Defendant threw the black bag out of the passenger side of the car. Kenton Williams testified that the Defendant also told him he dropped a shell at the scene and that Albert Green was also at the scene. Kenton Williams got to the Super 8 Motel in Seaford around noon to 1 p.m. Ashley Donaway testified that she met Kenton Williams and the Defendant in a motel by Arby's in Seaford on November 17, 2016. Ashley Donaway testified that the three left and went back to the Millsboro Village Apartments. Ashley Donaway was in her car. Kenton Williams and the Defendant were in the green Scion. The Defendant parked the car and disappeared according to Ashley Donaway. Ashley Donaway and Kenton Williams then went back to the Super 8 Motel in Seaford in her car and checked out. Ashley Donaway and Kenton Williams went to a nearby residence. Kenton Williams went to the shed and came back with the duffle bag. There was an automatic rifle type gun in it, a banana bullet clip, and clothes. Ashley Donaway took Kenton Williams to the Millsboro Village Apartments and dropped him off and then left. Kenton Williams testified he threw the clothes out of the duffle bag and gave it back to the Defendant. The Defendant and Kenton Williams went to the Millsboro Police Department together and were interviewed separately by Detective Csapo on November 17, 2016. The Defendant acknowledged during his interview that he knew Darrin and had seen him on November 16, 2016, but that it was in the morning and no later than noon. Ashley Donaway did not know "Little Bro," but she told the police that "Little Bro" also went by "South" and that he lived in the Millsboro Village Apartments with a girlfriend who has a green car. The assistant manager of the Classic Motel provided a document showing that Ashley Donaway had rented and checked into Room 230K12 at 6:26 p.m. on November 16, 2016 and checked out on November 17, 2016. As I indicated before, the Defendant's travels after the murder of Darrin are important because during this time he admitted to Kenton Williams that he had murdered Darrin and tried to dispose of a handgun.
Motive
The State theorizes that the Defendant killed Darrin to prevent Darrin from talking about a robbery committed by the Defendant and Kenton Williams against a drug dealer. Two witnesses - Kenton Williams and Keshawn Gibbs - offered testimony to support this theory.
Keshawn Gibbs
Keshawn Gibbs is known as "Geek" or "Geeker." Keshawn Gibbs knows both Darrin and Kenton Williams. Keshawn Gibbs testified he had only met the Defendant once at the Millsboro Village Apartments. At trial, Keshawn Gibbs's testimony on the robbery committed by Kenton Williams and the Defendant was unclear. Keshawn Gibbs had heard a rumor that Kenton Williams and the Defendant had committed a robbery. Darrin's name had come up in the rumor. Keshawn Gibbs talked to Darrin and Kenton Williams about it a few days before Darrin's murder. Keshawn Gibbs testified the conversation took place at the Old Landing Apartments. Kenton Williams said to Keshawn Gibbs that Darrin was not involved. Kenton Williams did not say to Keshawn Gibbs who was involved. Deshawn Gibbs did not think that the Defendant was present. Keshawn Gibb's testimony was different from what he had previously told Detective Csapo. Detective Csapo testified pursuant to 11 Del. C. § 3507 that Deshawn Gibbs told him that he had a conversation earlier in the day on November 16, 2016 with Kenton Williams and the Defendant about Darrin being involved in a robbery. Darrin had apparently told Keshawn Gibbs that he was not involved and was going to tell the drug dealer that was robbed who was involved - the Defendant and Kenton Williams.
Kenton Williams
Kenton Williams testified that he and the Defendant had robbed a drug dealer named "Cos" of drugs and money and split the proceeds. Kenton Williams testified that on November 16, 2016, around 3:00 p.m., at the Old Landing Apartments, he had a conversation about the robbery with the Defendant and Keshawn Gibbs. Keshawn Gibbs said that Darrin was going to say that the Defendant and Kenton Williams committed the robbery. The Defendant told Kenton Williams that "he has gotta go." The "he" was Darrin. Kenton Williams testified that he tried to talk the Defendant out of killing Darrin. Kenton Williams told the Defendant that Darrin was his friend and that he could talk to him and handle it. Kenton Williams did not warn or do anything to protect Darrin. Kenton Williams testified that the day after Darrin was killed the stolen drugs were returned to Garron Wescott. Apparently, the drugs belonged to "Cos," but were actually taken from Garron Wescott. Shernell Perry's testimony touched on this. Shernell Perry testified that Kenton Williams sent his cousin to her apartment to recover stolen drugs.
Admissions
The Defendant made a number of admissions.
1. "He has gotta go." The Defendant made this statement to Kenton Williams after the meeting with the Defendant, Keshawn Gibbs and Kenton Williams to discuss the roberry.
2. "He had to do it for the both of us." The Defendant made this statement to Kenton Williams in the bathroom of a room at the Classic Motel after Darrin had been murdered.
3. The Defendant told Kenton Williams that he dropped a bullet at the scene. This puts the Defendant at the murder scene.
4. The Defendant told Kenton Williams that Albert Green was at the murder scene. This puts the Defendant at the murder scene.
5. The Defendant told Kenton Williams that there was a gun in the black bag that the Defendant threw off the bridge. This puts the gun in the Defendant's possession.
6. The Defendant told Shernell Perry that "I killed him" and "I did it to that boy."
7. The Defendant told Shernell Perry that if Kenton Williams took him to North Carolina he (Kenton Williams) would not be coming back. Shernell Perry took this to mean that the Defendant would harm Kenton Williams. Kenton Williams knew that the Defendant had murdered Darrin.
Time
The Defendant had enough time to commit the murder of Darrin. The relevant time-frame is 11:37 p.m. to 11:55 p.m. on November 16, 2016. Darrin, Albert Green and the Defendant left the Millsboro Village Apartments on foot at 11:37 p.m. Albert Green and the Defendant returned to the Millsboro Village Apartments on foot at 11:55 p.m. Darrin Gibbs was murdered between 11:37 p.m. and 11:50 p.m. The Millsboro Village Apartments are .6 of a mile from the place where Darrin was murdered. That distance can be walked in ten minutes and jogged in four to five minutes. Detective Csapo offered testimony to establish the distance and walking and jogging times. That gave the Defendant enough time to walk with Darrin from the Millsboro Village Apartments to the scene, shoot Darrin in the back of the head, and then jog back to the Millsboro Village Apartments by 11:55 p.m.
The State's Case in a Nutshell
The Defendant, Darrin and Albert Green left the Millsboro Village Apartments on foot at 11:37 p.m. on November 16, 2016. The Defendant and Darrin walked to West Monroe Street where the Defendant shot Darrin in the back of his head with a 9mm handgun. The Defendant shot Darrin to keep him from talking about a robbery involving the Defendant. The Defendant and Albert Green then returned on foot to the Millsboro Village Apartments at around 11:55 p.m. Kenton Williams and Ashley Donaway left the Classic Motel in Georgetown and went to the Millsboro Village Apartments and picked up the Defendant and took him back to the Classic Motel. Kenton Williams and Ashley Donaway then went to the Millsboro Village Apartments. Kenton Williams got the Defendant's girlfriend's car, a green Scion, and drove it back to the Classic Motel. Ashley Donaway then went to her Mom's house in her car, leaving Kenton Williams and the Defendant at the Classic Motel for the night. The next day, Kenton Williams drove the Defendant to the Super 8 Motel in Seaford. On the way, as they were crossing a bridge, the Defendant threw out a black plastic bag containing the handgun the Defendant likely used to kill Darrin. Ashley drove over to the Super 8 Motel that day in her car. All three then went to the Millsboro Village Apartments. Ashley Donaway drove her car. Kenton Williams and the Defendant went in the green Scion. The Defendant parked the green Scion and disappeared. Ashley Donaway and Kenton Williams went back to the Super 8 Motel and checked out and eventually returned to the Millsboro Village Apartments. The Defendant and Kenton Williams then went to the Millsboro Police Department together and were interviewed separately by Detective Csapo on November 17, 2016.
The Defense
The Defendant, of course, has no burden of proof. However, the Defendant's attorneys did challenge the State's case, primarily by attacking the credibility of the State's key witnesses - Shernell Perry and Kenton Williams, - and suggesting that Albert Green and/or Kenton Williams may have actually murdered Darrin. The Defendant's attorneys also argued that Darrin had been involved in a number of violent incidents and that persons other than the Defendant might have murdered Darrin.
1. The Testimony of Kenton Williams and Shernell Perry
The testimony of Kenton Williams and Shernell Perry is important to the State's case. Thus, their credibility is at issue. There are certainly issues regarding their credibility. Both spoke to the police a number of times before ultimately telling the police what would be their trial testimony. Both had convictions involving crimes of dishonesty. Both received benefits from the State in exchange for their testimony.
Nevertheless, I found them both to be credible witnesses for a number of reasons. Both were close to the Defendant and had no reason to want to harm him. Shernell Perry was the Defendant's girlfriend. Shernell Perry had corresponded with the Defendant while he was in North Carolina. Ultimately, Shernell Perry brought the Defendant to Delaware and let him live with her at her apartment. Shernell Perry was also a very reluctant witness against the Defendant. At trial her testimony was much less clear than the recorded statement she had given to Detective Csapo before trial. Shernell Perry obviously did not want her testimony to harm the Defendant any more than necessary. I believe the only reason that Shernell Perry even came forward is because of her sister's murder. The murder had never been solved and that troubled Shernell Perry and Shernell Perry's mother. I do not think Shernell Perry wanted Darrin's relatives to live with the pain that she and her mother have lived with over the unsolved murder of Shernell Perry's sister.
Kenton Williams was, according to Shernell Perry, one of the Defendant's few close friends in Delaware. Kenton Williams and the Defendant had committed at least one crime together. As a friend, Kenton Williams had no reason to want to harm the Defendant. Kenton Williams also helped the Defendant dispose of evidence after Darrin's murder. Kenton Williams was afraid of the Defendant because of the Defendant's violent past, as well as the Defendant's murder of Darrin. I think Kenton Williams only came forward once he was satisfied that the Defendant was no longer a threat to him.
And lastly, the testimony of Shernell Perry and Kenton Williams is consistent with each other and the testimony of other witnesses and the forensic evidence. I note the following in this regard:
1. Shernell Perry, Kenton Williams and Ashley Donaway all testified about the duffle bag and Kenton Williams picking up the Defendant at the Millsboro Village Apartments. Albert Green also testified about seeing Kenton Williams get a duffle bag from the Defendant. Shernell Perry, Kenton Williams and Ashley Donaway all testified about Kenton Williams picking up Shernell Perry's car.
2. Shernell Perry and Kenton Williams both testified about the return of drugs.
3. Kenton Williams testified about an unfired bullet left at the scene by the Defendant and a gun thrown off the bridge by the Defendant. The police found an unfired bullet at the scene and a gun in the water by the bridge where the Defendant threw the gun.
4. Ashley Donaway and Kenton Williams testified about all the trips to the Millsboro Village Apartments with Kenton Williams and being with the Defendant and Kenton Williams at the Classic Motel and the motel in Seaford.
5. Keshawn Gibbs and Kenton Williams both testified about the rumored robbery of drugs involving the Defendant and Kenton Williams.
6. Shernell Perry and Kenton Williams both testified about admissions made by the Defendant regarding Darrin's murder.
7. Ashley Donaway and Kenton Williams both testified about recovering the duffle bag.
Quite simply, the testimony by Kenton Williams and Shernell Perry fits into the overall story. Moreover, Albert Green, Keshawn Gibbs, Shernell Perry and Ashley Donaway had no reason to wish harm to the Defendant.
2. Albert Green and Kenton Williams as Murder Suspects
Albert Green certainly had the opportunity to kill Darrin. Albert Green was with Darrin and the Defendant at 11:37 p.m. The Defendant told Kenton Williams that Albert Green was at the murder scene. However, the Defendant did not tell Kenton Williams that Albert Green killed Darrin. Instead, the Defendant told Kenton Williams that he killed Darrin. Moreover, Albert Green, unlike the Defendant, had no motive to kill Darrin and no evidence links Albert Green to Darrin's murder. Kenton Williams had a motive to murder Darrin, but no opportunity. Kenton Williams may well have wanted Darrin to keep quiet about the robbery of "Cos" committed by Kenton Williams and the Defendant. However, Kenton Williams has an excellent alibi. Kenton Williams was with Ashley Donoway at the time of Darrin's murder.
3. Darrin Gibbs
Darrin Gibbs was 30 years old when he died. Darrin Gibbs did not lead an uneventful life. Darrin Gibbs had been shot some years before he was murdered. Darrin Gibbs was involved in criminal activity that involved drugs, thefts and physical altercations. Some of those incidents happened shortly before Darrin Gibbs was killed. The police investigated them. There was no evidence that any of those involved had murdered Darrin Gibbs.
Conclusion
I conclude beyond a reasonable doubt that the Defendant is guilty of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony. I rely on the evidence I have previously discussed and make the following specific findings:
1. Darrin was murdered between 11:37 p.m. and 11:50 p.m. on November 16, 2016. This is established by the video from the Millsboro Village Apartments, the motorist's 911 call, and the autopsy results. Darrin is seen on the video alive and walking with Albert Green and the Defendant away from the Millsboro Village Apartments at 11:37 p.m. Albert Green and Kenton Williams testified that it was Darrin in the video. The motorist called 911 at 11:50 p.m. to report a dead person on West Monroe Street near its intersection with Houston Street. The dead person was Darrin. Dr. Vershovsky concluded that Darrin's cause of death was a gunshot to the back of his head and that the manner of death was homicide.
2. The Defendant was with Darrin from 11:37 p.m. until Darrin died sometime before 11:50 p.m. This is established by the video, the testimony of Albert Green and Kenton Williams, and the forensic evidence. The video shows the Defendant with Darrin and Albert Green walking away from the Millsboro Village Apartments at 11:37 p.m. Albert Green's testimony puts the Defendant closer to the scene of Darrin's murder. Albert Green testified he walked with the Defendant and Darrin until he split off to buy some weed at the Brandywine Apartments. The Brandywine Apartments are near the murder scene. The police recovered an unfired bullet and a fired shell casing at the murder scene. Kenton Williams testified that the Defendant told him that he dropped a bullet at the scene. Kenton Williams testified that the Defendant told him that Albert Green was at the scene. The unfired bullet and the Defendant's statement about Albert Green put the Defendant at the scene. Kenton Williams testified that the Defendant threw a gun in Williams Pond. The police recovered a handgun from Williams Pond and a firearm expert concluded that the fired shell casing found at the scene was fired in the handgun. This evidence puts the Defendant at the scene and the gun in his possession. And lastly, the Defendant is seen on the video at 11:55 p.m. returning with Albert Green to the Millsboro Village Apartments without Darrin.
3. The Defendant had a motive to kill Darrin. This was based on the testimony of Keshawn Gibbs and Kenton Williams. Kenton Williams testified that he and the Defendant stole drugs from "Cos." Keshawn Gibbs testified about hearing a rumor to that effect which also involved Darrin. Kenton Williams and Keshawn Gibbs both testified about a meeting shortly before Darrin was killed with the Defendant where it was disclosed that Darrin was going to tell the robbery victim who actually committed the robbery. After the robbery, the Defendant told Kenton Williams that "he has gotta go." The "he" was Darrin. I considered the robbery only as evidence of motive and for no other purpose.
4. The Defendant admitted to Shernell Perry and Kenton Williams that he killed Darrin. Kenton Williams testified that in the bathroom of the Classic Motel the Defendant told him that "he had to do it for the both of us." The Defendant told Shernell Perry that "I killed him" and "I did it to that boy." The context makes it clear that the Defendant was talking about Darrin. I have not relied on the testimony of Terry Toomey. Toomey is a jailhouse snitch. Although some of his testimony sounded credible, I was not comfortable relying on it.
5. The Defendant had enough time to murder Darrin near the intersection of West Monroe Street and Houston Street and return to the Millsboro Village Apartments by 11:55 p.m. This was based on the testimony of Detective Csapo. Detective Csapo testified that the Millsboro Village Apartments are .6 of a mile from the murder scene and that he walked the distance in 10 minutes and jogged it in four to five minutes. Thus, the Defendant had enough time to walk with Darrin from the Millsboro Village Apartments at 11:37 p.m. and to the murder scene, shoot Darrin, and then jog back to the Millsboro Village Apartments by 11:55 p.m.
6. The Defendant was charged with Murder in the First Degree. This has two elements. One, the killing of Darrin. Two, that the killing was done intentionally. Based on what I have discussed before, I conclude that the Defendant killed Darrin. The Defendant had a motive to kill Darrin. The Defendant wanted to keep Darrin quiet about the robbery. The Defendant had an opportunity to kill Darrin. The Defendant was at the murder scene. Lastly, the Defendant admitted to killing Darrin. I conclude the intent requirement is satisfied by the fact that the Defendant shot Darrin in the back of his head. If you shoot someone in the back of the head with a high-powered handgun, then the only conclusion that can be drawn is that you intended to kill them.
7. The Defendant was also charged with Possession of a Firearm During the Commission of a Felony. Murder in the First Degree is a felony. Darrin was killed by a bullet fired from a handgun. I have already found that it was the Defendant who murdered Darrin. Given that I have found that Darrin was killed by a gunshot to his head and that it was the Defendant who murdered Darrin, the only logical conclusion - and finding - is that it was the Defendant who possessed the handgun that fired the bullet that killed Darrin. Thus, all the requirements - a felony, a firearm, and possession of that firearm - are met. I have also denied, for obvious reasons, the Defendant's Motion for Judgment of Acquittal. The evidence at the close of the State's case certainly supported the finding that a reasonable fact finder could find the Defendant guilty of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony.
IT IS SO ORDERED.
Very truly yours,
/s/
E. Scott Bradley ESB:tll cc: Prothonotary's Office