State v. Kaplan

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                         )
                                           )
       Plaintiff,                          )
                                           )
        v.                                 )
DEMONTE KAPLAN,                            )   ID NO. 2303004765
                                           )
       Defendants.                         )
                                           )
                                           )
                                           )
                                           )
                                           )
                                           )

                      Date Submitted: December 27, 2024
                       Date Decided: February 18, 2025


  Upon Defendant’s Motion to In Limine and Motion to Hold Daubert Hearing.
                                 DENIED.

                                    ORDER

Beth D. Savitz, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, 19801, Attorney for the State of Delaware.

Olivia C. Phillips, Assistant Public Defender, Wilmington Delaware, 19801,
Attorney for Defendant Demonte Kaplan.




SCOTT, J.

                                       1
                                INTRODUCTION
      Before this Court is Defendant Demonte Kaplan’s (“Kaplan”) Motion in

Limine to Exclude Detective Rosaio’s Testimony, or in the alternative to Conduct a

Daubert Hearing. After reviewing Kaplan’s Motion in Limine, Motion to Conduct a

Daubert hearing and the State’s response to both respective Motions, this Court finds

the State has sufficiently proffered Detective Rosaio as a qualified expert and his

expert testimony is relevant and reliable to assist the fact finder. Accordingly,

Kaplan’s Motions are DENIED.

                          FACTUAL BACKGROUND
      Wednesday, March 8, 2023, the Delaware State Police Governor’s Task Force

(“GTF”) was on proactive patrol on Philadelphia Pike in Claymont, New Castle

County, Delaware. The GTF group is made up of Delaware State Police Troopers

and Probation Officers.

      While in an Arby’s parking lot, GTF members observed a black Chevrolet

Suburban parked in a parking spot at Arby’s. Shortly thereafter, a brown Buick

Lacrosse, later determined to be occupied by Ugandi Jacobs Jr. (“Jacobs”), pulled

into the parking lot and parked. The GTF members observed the driver of the Buick

exit the vehicle, walk to the Suburban occupied by the defendant, and enter the front

passenger seat. GTF members observed the Suburban drive around the Arby’s

parking lot aimlessly and stop at the Buick. Following the stop, Jacobs exited the

                                         2
vehicle. The GTF officers observe Jacobs walk to the Buick holding his arms against

his body and his hands against his chest. Thereafter, the Suburban exited the Arby’s

parking lot while the Buick drove around the back of the Arby’s. The Buick was then

apprehended by the GTF officers behind the Arby’s.

       The GTF officers, based on personal observation of the behavior of Jacobs,

believed a drug deal had just taken place in the Suburban. The GTF officers

apprehended the Buick and were able to identify the driver as Jacobs and the

passenger as Colby Todd. The GTF officers searched Jacobs and found two vacuum

sealed bags of marijuana.

       GTF officers were also able to apprehend the Suburban on Philadelphia Pike.

The GTF officers identified the driver of the Suburban as Kaplan. Upon further

communication with Kaplan, the GTF officers were able to smell raw marijuana in

the Suburban. However, no marijuana was found during the stop and search of the

car.

       DSP located $3,070.00 sitting in the center console of the Suburban. Kaplan

Denied any part in the drug deal. Kaplan was indicted on or about July 24, 2023.

The indictment was amended on November 21, 2023, and charges Kaplan of the

following: 1) Drug Dealing, Fentanyl (felony); 2) Drug Possession (misdemeanor):




                                         3
3) Drug Dealing, Marijuana (felony); and 4) Drug Dealing, Psilocybin (felony). Trial

is scheduled for January 13, 2025.

      Prior to trial, the State disclosed it would be calling Detective Andrew Rosaio

of New Castle County Police Department and the FBI Violent Crimes Task Force as

its drug dealing expert for trial and provided Detective Rosaio’s resume and a brief

statement of his anticipated testimony.

      On July 3, 2024, Kaplan filed a Motion to Exclude Detective Rosaio’s

Testimony or to Conduct a Daubert Hearing. The State filed its response on

September 6, 2024.

                           PARTIES CONTENTIONS
Kaplan Contends:
      Kaplan’s Motion in Limine asserts that Detective Rosaio’s proposed testimony

is profiling evidence and does not comport with Delaware Rule of Evidence 702 or

the Daubert Standard. Further, Kaplan’s Motion to Conduct a Daubert hearing

contends that Detective Rosaio is not qualified to be an expert witness because he

cannot opine the mythologies, techniques, or other theory’s that were subject to peer

review when providing profiling testimony.

The State Contends:
      The State contends Detective Rosaio’s testimony is not profiling testimony.

Rather, Detective Rosaio’s testimony is expert testimony that is admissible because

                                          4
it describes the quantity of the drugs found, the packaging of the drugs, the currency

found, and the lack of personal use paraphernalia in relation to the “intent to deliver,”

element of the crime charged.

                               STANDARD OF REVIEW
        Delaware Courts have adopted the United States Supreme Court holding in

Daubert, “which requires that an expert’s opinion be based upon a proper factual

foundation and sound methodology to be admissible, as the correct interpretation of

D.R.E. 702.”1 Pursuant to that rule, the trial judge acts as the gatekeeper to determine

whether a proffered expert’s testimony satisfies D.R.E. 702 and is thus admissible

as evidence.2 In making that determination, a trial judge has broad discretion to

decide whether the expert testimony is reliable and relevant.3

        The proffered expert testimony must satisfy three standards before it can be

admitted. Delaware Rule of Evidence 702 in its entirety states:

          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, if (1) the testimony is based upon sufficient facts or
          data, (2) the testimony is the product of reliable principles and

1
 Perry v. Berkley,
996 A.2d 1262, 1267
(Del. 2010); See M.G. Bancorporation v.
Le Beau,
737 A.2d 513, 521
(Del.1999); Daubert v. Merrell Dow Pharm., Inc.,
509
U.S. 579
, 593–95,
113 S.Ct. 2786
,
125 L.Ed.2d 469
(1993).
2
    Price v. Blood Bank of Del., Inc.,
790 A.2d 1203, 1210
(Del. 2002).
3
    Gen. Motors Corp. v. Grenier,
981 A.2d 531, 536
(Del.2009) (citation omitted).
                                             5
       methods, and (3) the witness has applied the principles and methods
       reliably to the facts of the case.4


      To determine “whether an expert has a reliable basis in the knowledge and

experience of the relevant discipline,”5 this Court applies the Daubert 6 standard.

Under Daubert, the Court considers: (1) whether the theory or technique can be or

has been tested; (2) whether the theory has been subjected to peer review; (3)

whether there is a known or potential rate of error; (4) whether standards exist for

the application of the theory; and, (5) whether the theory or technique enjoys general

acceptance within a relevant scientific community.7

      If the Court finds the expert testimony satisfies Rule 702 as interpreted under

Daubert, “cross-examination, presentation of contrary evidence, and careful




4
  Delaware Rule of Evidence 702 (D.R.E. 702 is substantially similar to Rule 702 of
the Federal Rules of Evidence, which is governed by Daubert v. Merrell Dow
Pharmaceuticals, Inc., and Kumho Tire Co., Ltd. v. Carmichael. The Delaware
Supreme Court has expressly adopted the holdings in Daubert and Kumho.) Daubert
v. Merrell Dow Pharmaceuticals, Inc
509 U.S. 579
,
113 S.Ct. 2786
,
125 L.Ed.2d 469
(1993) (addressing scientific testimony); Kumho Tire Co., Ltd. v. Carmichael
526
U.S. 137
,
119 S.Ct. 1167
,
143 L.Ed.2d 238
(1999) (extending Daubert’s holdings to
all scientific, technical, and specialized matters).
5
  Li,
2019 WL 4928614
, at *1 (citing M.G. Bancorporation, Inc. v. Le Beau,
737
A.2d 513, 521
(Del. 1999) (adopting the Daubert standard as the correct
interpretation of Delaware Rule of Evidence 702)).
6
  Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 595
(1993))).
7
 Sturgis v. Bayside Health Ass'n,
942 A.2d 579, 584
(Del. 2007) (citing Daubert v.
Merrell Dow Pharm., Inc.,
509 U.S. 579, 595
(1993))).
                                          6
instruction on the burden of proof are the traditional and appropriate means of

attacking… admissible evidence.”8

                                    DISCUSSION
        A. Admissibility Of Proffered Expert Testimony Proposed By The State.

        Kaplan contends that Detective Rosaio’s testimony proffered by the State is

inadmissible because it does not comport with Delaware Rule of Evidence 702 or

Daubert because the State fails to opine the methodologies, scientific techniques, or

well-established propositions used to support his testimony. This Court disagrees.

        The State contends that Detective Rosaio’s proposed testimony is not profiling

testimony. Instead, the State asserts that Detective Rosaio is providing expert

testimony on admissible evidence such as the quantity of drugs found, the packaging

of the drugs, the currency found, and the lack of personal use paraphernalia, in

relation to the “intent to deliver” element of the drug dealing charge. The Supreme

Court of Delaware in Davis v. State, found that expert testimony related to

packaging, currency scales, and personal use paraphernalia is admissible to establish

the element of “intent to deliver,” in a drug-dealing charge.9 Here, the States

proffered evidence of Detective Rosaio’s testimony is admissible to establish the




8
Id.
(citing Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 596
(1993)).
9
    Davis v. State,
319 A.3d 269
(Del. 2024).

                                           7
intent element of a drug-dealing charge because the testimony will be related to

packaging, currency scales, and personal use paraphernalia.10

         B. Detective Rosaio’s Qualifications as an Expert.

         The Supreme Court of the United States holdings in Daubert and Kumho

indicated that a “trial judge must make a threshold determination about the reliability

of testimony offered by an expert and decide whether, by the preponderance of the

evidence, there are grounds established that a jury is not being offered an opinion

that is mere speculation.”11 Further, the determination of the reliability, factors

illuminated in Daubert are intended to be helpful and not a preclusive list.12 The

factors may or may not be applicable depending on “the nature of the issue, an

expert’s expertise, and the subject of the testimony.”13 “Failure to confirm to the

Daubert factors is not fatal in this case, as factors and testimony do not lend

themselves to peer review and reliability rates.”14




10
Id.
11
     State v. Jones
2003 WL 21519842
, at *3 (Del. Super. Ct.).
12
   Norwood v. State,
813 A.2d 1141
(Table),
2003 WL 29969
, at *2 (Del.).
13
    Norwood
813 A.2d 1141
, at*2.
14
   Norwood v. State,
813 A.2d 1141
. (See generally, the Court found failure to
conform to all Daubert factors when a police officer is being proffered as an expert
is not fatal because much of the factors and testimony do not lend themselves to peer
review or reliability rates.).

                                          8
            1. The States Expert Witness Is Qualified As An Expert By

               Knowledge, Skill, Experience, Training And Education.

         Kaplan asserts that Detective Rosaio cannot be proffered as an expert because

his experience does not satisfy the elements set forth in Daubert. This Court

disagrees. A proposed expert must possess knowledge, skill, experience, training, or

education in the area of his or her testimony greater than the average layperson.15

Detective Rosaio’s resume provides that he was a police officer with the New Castle

County Police Department for twelve years. For nine of the twelve years that

Detective Rosaio has served as a police officer, he has worked in specialized unites

that focused on drug and gun investigations. Further, Detective Rosaio is currently

assigned to the FBITF and works with federal and local law enforcement on large

scale drug investigations including wiretaps, search warrants, and GPS orders.

Detective Rosaio has completed a multitude of trainings in organized crime and

firearm enforcement. Lastly, Detective Rosaio has testified numerous times in state

in federal courts as both a fact and expert witness in drug dealing cases. The present

case is akin to Hudson v. State where, during voir dire, the detective testified about

his extensive experience and training in handling drug cases.16 The Court found his



 Hudson v. Old Guard Ins. Co.,
3 A.3d 246, 252
(Del. 2010); Anker v. State, 913
15

A.2d 569
(Del.2006) (disallowing an expert on interpersonal relationships).
16
     Hudson v. State,
956 A.2d 1233, 1238
(Del. 2008).
                                           9
experience and training afforded him specialized knowledge to testify as an expert.17

Similarly, the Court finds that Detective Rosaio possesses the requisite knowledge,

skill, experience and training to be proffered as a qualified expert and to assist the

jurors in deciding on the particular issues in the instant case.

             2. Detective Rosaio’s Expert Testimony Is Relevant and Reliable.

           This Court finds the methodology used to support Detective Rosario’s

testimony reliable. “When determining reliability, factors illuminated in Daubert are

meant to be helpful, not definitive, and may or may not be pertinent depending on

the nature of the issue, an expert’s particular expertise, and the subject of the

testimony.”18 In Norwood v. State, the Court found that a police officer’s expert

testimony regarding methods for determining intent to distribute drugs was

admissible during a drug trial, despite admission that method had not been peer

reviewed and reliability rates were unknown.19 The Court in Norwood, noted it is

admissible for a police officer who is proffered as an expert to rely on a variety of




17
Id.
Norwood v. State,
813 A.2d 1141
(Del. 2003) citing Kumho Tire Co. Ltd. v.
18

Carmichael,
526 U.S. 137, 150
,
119 S.Ct. 1167
,
143 L.Ed.2d 238
(1999).
19
     Norwood v. State,
813 A.2d 1141
(Del. 2003).

                                           10
factors including, weight, package, whether the suspect posed drug paraphernalia or

money, when determining whether a suspect intends to distribute drugs.20

      Here, Detective Rosaio is using a culmination of his twelve years of

experience on the New Castle County Police Department, nine years of experience

in specialized units focused on drug and gun investigations, and specialized

knowledge obtained from various technical training courses21 to proffer testimony

correlating the quantity of drugs possessed by the defendant and the presence of

packaging, currency, scales, and other drug related paraphernalia with the intent to

deliver element in a drug-dealing charge.

      The present case is akin to Darling v. State where the Supreme Court of

Delaware denied the Defendants Motion in Limine to exclude a police officer’s

testimony because the Supreme Court found that a Police officer was qualified to

testify as to whether the defendant possessed marijuana for personal consumption or

for purposes of resale, in trial for intent to deliver marijuana.22 The Supreme Court

of Delaware reasoned that the police officer had formal training, experience in




20
Id.
21
    Detective Rosaio Completed the following training: 2014- Basic Narcotics
Investigator Training; 2015- U.S. Attorney’s Office – Gang Conference; 2015- U.S.
Attorney’s Office- Gun Conference; 2016 – Desert Snow Criminal Interdiction
Workshop.
22
   Darling v. State,
847 A.2d 1121
(Del. 2004).

                                         11
narcotics investigation, had been a member of the task force for three years, and

participated in over one hundred arrests.23 The Supreme Court found sufficient facts

existed on the record to support the trial judges determination that the police officer

could render an expert opinion regarding the Defendants reason for possession of

marijuana packaged in a particular way.24 Accordingly, Detective Rosaio’s testimony

is relevant to the pertinent case and his extensive training and experience renders the

testimony relevant and reliable. Thus, admission of Detective Rosaio’s testimony

would assist the fact finder.25

                                  CONCLUSION

      For the aforementioned reasons, the Defendant’s Motion in Limine and

Motion to Conduct a Daubert hearing is DENIED.

                                                     /s/ Calvin L. Scott

                                                     Judge Calvin L. Scott, Jr.




23
Id.
24
Id.
25
   Nelson v. State,
628 A.2d 69
(Del. Super. Ct. 1993) (The evidence does not create
unfair prejudice, confuse the issues, or mislead the jury.

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