Opinion
I.D. No. 1005001549.
Submitted: December 6, 2010.
Decided: December 29, 2010.
On Defendant's Motion In Limine to Exclude Evidence of Prior Altercations.
GRANTED.On Defendant's Motion In Limine to Exclude Testimony of Dr. Giannoukos.
DENIED.On Defendant's Motion In Limine to Exclude 911 Phone Call.
DENIED.Matthew B. Frawley, Esquire, Mark A. Denney, Jr., Esquire, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware, Attorneys for the State.
James M. Stiller, Jr., Esquire, Benjamin A. Schwartz, Esquire, Schwartz Schwartz, P.A., Dover, Delaware, Attorneys for Defendant Abubakr A. Bior.
Dear Counsel:
Defendant's motions in limine have been decided as follows:
I. Motion In Limine to Exclude Evidence of Prior Altercations.
Abubakr A. Bior ("Defendant") moves for an order excluding all evidence of any altercations between Defendant and Eric E. Ray, Jr., the alleged victim "which occurred on dates preceding May 2, 2010." Defendant premises this argument on Delaware Rules of Evidence 404(b) and 403.
"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."
During the most recent case review conference, counsel agreed that any altercations prior to May 2, 2010 were sufficiently remote in time as to be inadmissible under 404(b), pursuant to Getz. v. State. Thus, in light of this agreement, Defendant's motion in limine to exclude evidence of altercations prior to May 2, 2010 is GRANTED as unopposed. This decision is without prejudice to the State's ability to introduce evidence pertaining to any altercations occurring on May 2, 2010.
538 A.2d 726 (Del. 1988).
II. Motion In Limine to Exclude Testimony of Dr. Giannoukos.
Defendant moves to exclude the testimony of Dr. George Giannoukos, the alleged victim's treating physician. Defendant asserts three grounds for the preclusion of Dr. Giannoukos's testimony: 1) the State's identification of Dr. Giannoukos as an expert witness on September 29, 2010, over a month beyond the August 27, 2010 Scheduling Order deadline; 2) Dr. Giannoukos's testimony regarding the severity of the alleged victim's injuries is not relevant, as defined by Delaware Rule of Evidence 402; and 3) even if Dr. Giannoukos's testimony is relevant, it should be excluded pursuant to Delaware Rule of Evidence 403.
"All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the Courts of this State. Evidence which is not relevant is not admissible."
See supra note 2.
The State responds that defense counsel was notified via letter of August 19, 2010 that the State intended to call the alleged victim's treating physicians as expert witnesses. The State enclosed a copy of the alleged victim's medical records with this letter; these records presumably would have implicitly, if not explicitly, disclosed Dr. Giannoukos's identity.
The State also contends that the severity of the alleged victim's injuries is relevant, particularly in the event that jury is charged with the lesser included offenses of Assault First or Second Degree. Finally, with respect to Defendant's Rule 403 argument, the State argues that the prejudicial effect of Dr. Giannoukos's testimony regarding the severity of the alleged victim's injuries does not substantially outweigh its probative value, as the extent of the alleged victim's injuries are an essential element of Assault First Degree and are also probative of Defendant's alleged intent to kill the alleged victim.
With regard to Defendant's argument that Dr. Giannoukos should be precluded from testifying based on the alleged untimely disclosure by the State, this Court holds that Dr. Giannoukos may testify as an expert witness for the State. Although Dr. Giannoukos was not specifically identified until September 29, 2010, and the deadline for such identification was August 27, 2010, Defendant was nonetheless put on notice that any of the alleged victim's medical providers, including Dr. Giannoukos, may be called as expert witnesses via the State's letter of August 19, 2010, within the relevant deadline. Accordingly, Dr. Giannoukos's testimony is not excluded on this basis.
At the most recent case review, counsel agreed that Dr. Giannoukos's testimony would be limited to the treatment provided to the alleged victim; Dr. Giannoukos would not testify to the severity of the alleged victim's injuries. For example, Dr. Giannoukos would not be permitted to testify regarding the emergency efforts to resuscitate and stabilize the alleged victim in the immediate aftermath of the instant incident.
Given the foregoing agreement, Defendant's motion in limine to exclude Dr. Giannoukos's testimony as irrelevant or unduly prejudicial is DENIED. Dr. Giannoukos may testify as an expert witness for the State, but his testimony shall be limited to the treatment provided to the alleged victim subsequent to the emergency resuscitation efforts.
III. Motion In Limine to Exclude 911 Phone Call.
Defendant moves to exclude the "larger" of the two 911 calls placed in this case. Defendant's motion in limine contends that that 911 call "only conveyed information that a friend of [the caller's] had been stabbed, that [the caller] knew the address of the person who she thought did it, that they were passing the Wawa, and that they were in route to the hospital," but "[b]eyond that, there were only much hysterics and some foul language." Consequently, Defendant moves to exclude this call based on Delaware Rule of Evidence 403; according to Defendant, this call would only serve to "inflame and/or confuse" the jurors, and its probative value is substantially outweighed by its prejudicial effect.
Conversely, the State's response to Defendant's motion in limine argues that the caller is "audible and understandable" and "indicates that her friend was stabbed and she knows who did it." It is the State's position that this information is highly probative because "it establishes that, very soon after the incident, the 911 caller indicated that she could identify the perpetrator of the crime."
The Defendant does not dispute that this call is otherwise admissible; the State correctly noted that this call is admissible as an "excited utterance" hearsay exception. See D.R.E. 803(2); Dixon v. State, 996 A.2d 1271, 1276 (Del. 2010) (citing Warren v. State, 11A A.2d 246, 253 (Del. 2006)).
Delaware Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
The determination of whether the probative value of certain evidence is "substantially outweighed" by its prejudicial effect is "particularly within the discretion of the trial judge. . . ." The instant 911 call is highly probative on the caller's knowledge of the suspect's identity in the immediate aftermath of the incident. A contemporaneous identification of the Defendant as the perpetrator of the instant offense is, of course, inherently prejudicial, but this does not "substantially outweigh" its probative value.
Williams v. State, 494 A.2d 1237, 1241 (1985).
See id. (noting that evidence which "necessarily involves prejudice" is nonetheless properly admitted if the prejudicial effect of such evidence does not substantially outweigh its probative value.).
The probative value of this 911 call is not "substantially outweighed" merely because the call is emotionally volatile. Consequently, Defendant has not established that the probative value of this 911 call is substantially outweighed by its prejudicial effect. Accordingly, Defendant's motion in limine to Exclude the 911 Call is DENIED.
See, e.g., Lynch v. State, 588 A.2d 1138, 1141 (Del. 1991) (holding that the trial court properly admitted the taped 911 call of a five year old girl describing the scene of her parents' murder and directing the police to their home.).
IT IS SO ORDERED.