Opinion
I.D. No. 9609013882
Submitted: April 9, 2001
Decided: August 28, 2001
Upon Defendant's Motion in Limine to Exclude Evidence of Prior Bad Acts: GRANTED.
Upon Defendant's Motion in Limine to Exclude Testimony of the Medical Examiner: GRANTED.
Upon Defendant's Motion to Exclude Testimony of the Defendant from the Previous Trial: GRIVTED.
Upon Defendant's Motion to Exclude Statements Made by the Defendant to Police: GRANTED IN PART, DENIED IN PART.
Peggy J. Hageman, Esquire and Cynthia R. Kelsey, Esquire, Department of Justice, Wilmington, Delaware, for the State of Delaware.
Stephen B. Potter, Esquire and Jennifer-Kate Aaronson, Esquire, of Potter, Carmine Leonard, P.A., Wilmington, Delaware, for Defendant.
MEMORANDUM OPINION
The defendant, James Dorsey ("Dorsey"), was found guilty of Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited at a jury trial which concluded on May 28, 1998. In the penalty phase of that trial the jury voted ten to two to recommend imposition of the death penalty. Dorsey moved for a judgment of acquittal or in the alternative for a mistrial and in the interest of justice, the Court granted Dorsey a new trial on November 5, 1998.
In determining that Dorsey did not receive a fair trial, this Court concluded that: (1) the Medical Examiner, an expert witness for the State, directly or indirectly expressed a personal opinion about the defendant's veracity; (2) there was not a satisfactory or complete ruling on the record as to why evidence of the defendant's prior bad acts (involving bootlegging) was admissible nor was there a ruling as to why the potential prejudice of such testimony did not outweigh the probative value; and (3) the prosecutors' closing remarks were improper and no action was taken by the Court to control the conduct of the attorneys.
State v. Dorsey, Del. Super., I.D. No. 9609013882, Gebelein, J. (Nov. 5, 1998) (Opinion and Order).
In preparation for the new trial, the defendant has filed several motions. The defendant seeks to exclude evidence of prior bad acts, testimony of the medical examiner, testimony of the defendant from the previous trial, and statements made by the defendant to the police following his arrest.
Motion in Limine to Exclude Evidence of Prior Bad Acts
According to the State's theory, the victim was the "doorman" in Dorsey's illegal liquor sale business and was murdered over the money he had collected for Dorsey. To establish this motive, the State seeks to offer evidence of "bootlegging" by the defendant. The defendant moves to exclude any evidence of bootlegging and any other crimes, wrongs or bad acts committed by Dorsey. The defense argues that the State has offered no evidence to support its theory of motive and therefore cannot offer evidence of bootlegging at trial.
The State contends that the proffered evidence is admissible under Delaware Rule of Evidence 404(b) as proof of Defendant's intent and motive to commit the crimes charged, and admissible under Getz v. State. The State requests that the Court formalize its prior rulings, which led the Court to give a Getz instruction at the first trial.
Delaware Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted 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.
Getz v. State, Del. Supr., 538 A.2d 726 (1988).
Before evidence is admissible in the State's case-in-chief pursuant to 404(b), the State must satisfy the factors enumerated in Getz v. State. The six criteria are:
(1) The evidence of other crimes must be material to an issue or ultimate fact in dispute in the case. If the State elects to present such evidence in its case-in-chief it must demonstrate the existence, or reasonable anticipation, of such a material issue.
(2) The evidence of other crimes must be introduced for a purpose sanctioned by Rule 404(b) or any other purpose not inconsistent with the basic prohibition against evidence of bad character or criminal disposition.
(3) The other crimes must be proved by evidence which is "plain, clear and conclusive."
(4) The other crimes must not be too remote in time from the charged offense.
(5) The Court must balance the probative value of such evidence against unfairly prejudicial effect, as required by D.R.E. 403.
(6) Because such evidence is admitted for a limited purpose, the jury should be instructed concerning the purpose for its admission as required by D.R.E. 105.
Renzi v. State, Del. Supr., 320 A.2d 711, 712 (1974).
Getz, 538 A.2d at 734.
As proof that the defendant was running a bootlegging business, the State proffered the following evidence: Defendant had approximately $1200.00 cash on his person and $10.00 in change when he was arrested; liquor and bags were found at the victim's residence; there was an alleged sale of alcohol by the victim and Defendant three years before to an undercover police officer; and Lem Anderson's testimony that the victim was a doorman for Defendant. The State argues that this amounts to plain, clear and convincing evidence to conclude that the defendant was a bootlegger and offers a motive for Defendant to murder the victim.
The Court finds that this evidence is not admissible under D.R.E. 404(b) and Getz since the State has not met its burden of offering plain, clear and conclusive evidence that Defendant was a bootlegger and that bootlegging was somehow a motive for murder in this case. The State's evidence largely consists of circumstantial evidence. The State argues that the cash in the defendant's possession was taken from the victim who acted as doorman for Defendant's bootlegging business. There is however no proof that the money in Defendant's possession was actually taken from the victim. Likewise, there is no clear and convincing evidence that Defendant was, at the time of the murder or close to that time, running a bootlegging business from the victim's residence. The State seeks to offer evidence of refrigerators full of liquor and bags at the victim's residence as proof that the defendant was a bootlegger but lacks evidence that would link the defendant to those refrigerators. Finally, testimony of Detective Johnson that the defendant sold her alcohol three years prior to the victim's death is too attenuated to meet the test of § 404. The testimony of Lem Anderson that the victim said he was acting as Dorsey's doorman is hearsay and while offered to show the victim's state of mind can not be offered to prove the truth of the matter asserted, i.e. that Dorsey was a bootlegger. It clearly does not provide plain, clear and conclusive evidence that Dorsey was in fact a bootlegger. The circumstantial evidence offered by the State fails to meet the burden of clear and convincing. The Court thus finds that considering all of the proffered evidence, the State has failed to produce plain, clear and conclusive evidence that Defendant was a bootlegger.
Based upon the foregoing, the Court grants Defendant's motion in limine to preclude the State from offering the evidence proffered. It should be noted that the circumstantial evidence in this case is weak, and the most substantial part of it, the testimony of Officer Johnson, is three years from the date of victim's death. The danger of unfair prejudice from the evidence proffered clearly outweighs its extremely limited probative value.
Motion in Limine to Exclude the Testimony of the Medical Examiner
The defendant seeks to exclude from evidence the testimony of the State Medical Examiner because her testimony regarding the manner of death was predicated on statements made by Dorsey pertaining to his possession of the firearm and/or the location of the firearm when Dorsey found the victim's body. Additionally, Dorsey argues that her opinion was not based on scientific evidence or data, but rather was based on the credibility of the defendant as this Court ruled in granting Dorsey a new trial.
The State argues that the medical examiner based her opinion on scientific evidence when she considered the trajectory of the bullet and the closeness of the gun to the victim's head. The State admits that the medical examiner considered other evidence such as the defendant's story of the positioning of the gun, the dust on the dresser and the absence of a suicide note. The State argues that Dr. Perlman is an expert and her testimony is relevant and reliable.
It is plain and reversible error to permit an expert for the State to directly or indirectly express a personal opinion about a particular witness' veracity. In granting Defendant a new trial, the Court ruled that the State Medical Examiner, an expert witness for the prosecution, provided her indirect opinion of the veracity of defendant's statements. Dr. Perlman used Dorsey's credibility as the foundation of her opinion that the victim's death was a homicide. Her conclusion rested on her understanding that the gun was found in Dorsey's car and the credibility of Dorsey regarding his entrance into the room. The Court held that the medical examiner's testimony was "clearly an opinion regarding the veracity of the defendant's statements at the scene of the death [and] [i]t would be contrary to long standing principles of Delaware law to permit the State expert's opinion on Dorsey's veracity to unfairly influence the jury as to his credibility." Based upon this Court's prior ruling that the medical examiner's testimony was not based on medical evidence but rather was primarily based upon her opinion, that Dorsey had lied to the police, the medical examiner's testimony is inadmissible.
Wheat v. State, Del. Supr., 527 A.2d 269, 275 (1987); Powell v. State, Del. Supr., 527 A.2d 276, 279 (1987).
Dorsey, I.D. No. 9609013882 (Nov. 5, 1998), at 1.
Furthermore, the Delaware Supreme Court ruled that the gun found in Defendant's car was obtained in violation of Dorsey's constitutional rights and therefore inadmissible at trial. I stands to reason that if the medical examiner's conclusions regarding the cause of death rested upon Dorsey's story regarding the positioning of the gun and her understanding that the gun was found in Dorsey's car, the testimony could also be excluded as fruit of the unconstitutional search and seizure, and the statements made by Dorsey as fruits of that search and seizure.
Dorsey v. State, Del. Supr., 761 A.2d 807 (2000).
Based upon the foregoing, the State Medical Examiner's testimony as proffered is excluded.
Motion to Exclude Reference or Evidence of Defendant's Testimony at the First Trial
The defendant seeks to exclude his testimony from the previous trial from evidence in his new trial. Dorsey asserts that he only testified in his first trial to explain away the illegally seized gun in his trunk, and defense counsel represents that Dorsey was advised to testify only because the gun was found in the defendant's possession.
The State contends that Dorsey would have testified even without the evidence of the illegally obtained weapon. The State argues that it is the substantial collective evidence which prompted the defendant to make an early proffer that he would testify in his own behalf, and the defendant testified to rebut his own inconsistent and inculpatory actions and to assert his suicide defense.
In Harrison v. United States, the Supreme Court held that the testimony of the defendant in a former trial was not admissible at the second trial where the defendant testified only after the government illegally introduced three wrongfully obtained confessions. The State contends that the rule in Harrison does not apply here because Dorsey's decision to testify was made before the gun was admitted.
392 U.S. 219 (1968).
This Court finds that argument fails because the State told the jury about the gun in opening statements and the gun had already been the subject of a motion to suppress by the defense that had been lost. As stated in Harrison, "the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used." Here, the State has the burden of establishing that the testimony was not impelled by the illegally obtained evidence and they have not met this burden.
The motion to suppress was denied in State v. Dorsey, Del. Super., I.D. No. 9609013822, Goldstein, J. (Aug. 1, 1997) (Op. and Order).
Harrison, 392 U.S. at 224.
Motion to Exclude Any Statements Made After Dorsey's Arrival at Wilmington Police Department
At the first trial, this Court excluded from evidence "any statements taken from the time Defendant James Dorsey arrived at the Wilmington Police Department . . . " because Dorsey was not given Miranda warnings prior to questioning. At issue were statements made by Dorsey when questioned by Detective Lemon at the police Mobile Mini Station near the scene of Frank Williams' death, and at the Wilmington Police Department headquarters. Although the statements to Detective Lemon were suppressed, Dorsey made additional statements to Detective Elliott, and three weeks later to Detective Dietz, which were admitted at the first trial. Those statements are the subject of this motion in limine.
State v. Dorsey, Del. Super., I.D. No. 9609013882, Gebelein, J. (April 30, 1998) (ORDER).
Miranda v. Arizona, 384 U.s. 436 (1966).
While the statements to Detective Lemon will be suppressed in accordance with the Order dated April 30, 1998, Dorsey seeks to have statements made to Detective Elliott and Detective Dietz after the illegal search of Dorsey's car suppressed as fruit of the poisonous tree.
The State argues that although the statements to Detective Lemon were suppressed, the statements that Dorsey made while being booked should not be suppressed because, although a search warrant was being executed on Dorsey's car at that time, Dorsey was not aware of the results and therefore his statements made to Detective Elliott are not fruit of the poisonous tree. It is the State's contention that Dorsey made the statements to police to explain away the gun powder residue on his hands, not to explain away the gun in his trunk.
Additionally, with regard to the statements made to Detective Dietz, the State argues that statements were made three weeks after the search warrant was executed and should not be suppressed because there is an obvious temporal disconnect between the seizure of the firearms and the statements. Those statements were voluntary and not obtained through exploitation of the illegally seized evidence but rather through the cooperation of both defendant and his attorney.
In Darwin v. Connecticut, the Court observed that "when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has . . . the burden of proving . . . that the later confession . . . was not directly produced by the existence of the earlier confession." Here, the defendant's initial statements made to Detective Lemon were suppressed because he was not given Miranda warnings and it is the burden of the State to show that the later statements were not directly produced by the existence of the statements to Detective Lemon.
391 U.S. 346, 351 (1968).
Darwin, 391 U.S. at 351.
The State argues that Dorsey's statements to Detective Elliott are not fruit of the poisonous tree because Dorsey was not aware that the gun had been found in his car until after the police questioning. The Court finds that the State has demonstrated that Dorsey's statements to Detective Elliott were not fruit of the poisonous tree. Even with a delay before the statements to Detective Dietz, the State has not established that it was independent of Defendant's prior statement that had been suppressed and of the illegal seizure of the now suppressed gun.
Based upon the foregoing, the Court grants Defendant's motion to exclude all statements made to Wilmington Police, with the exception of statements made to Detective Elliott prior to Dorsey's knowledge of the results of the search.
IT IS SO ORDERED.