Opinion
Def. I.D.: 0010020785
September 4, 2001
Upon consideration of Defendant Williams' Motion In Limine. GRANTED in part and DENIED in part.
Victoria R. Witherell, Deputy Attorney General, Department of Justice, Office of the Attorney General, Wilmington, DE.
J. Brendan O'Neill, Assistant Public Defender, Public Defender's Office, Carvel State Office Building, Wilmington, DE.
Joseph A. Gabay, Esquire, Wilmington, DE.
Dear Counsel:
As you know, the Defendant, Patrick J. Williams ("Williams"), is charged with one count of Arson Second Degree and one count of Conspiracy Second Degree. The State alleges that Williams, along with his co-defendant, Kevin Brady and an unindicted co-conspirator, Gary Ogden, started a fire in a vehicle stored at an auto glass store in Wilmington. With respect to Williams, it is alleged that he urged Ogden to start the fire and then provided Ogden with a lighter to enable him to do so. In its case-in-chief, the State proposes to present the testimony of Ogden and at least two other witnesses to the effect that Williams has urged Ogden and others, on occasions before and after the fire at issue here, to set other fires. Williams has moved in limine to exclude any such evidence on the ground that it constitutes inadmissible "bad acts" evidence and that the probative value of such evidence is substantially outweighed by its prejudicial impact. The Court has considered the motion in limine and has determined that a portion of the "bad acts" evidence is admissible and that an appropriate instruction to the jury will be given to explain the limited extent to which such evidence may be considered.
D.R.E. 403 404(b).
Facts
During oral argument on the motion, the State acknowledged that its case against the defendants is comprised principally of two components. First, the State will present Ogden's testimony with respect to the events surrounding the fire at issue here. Second, the State will present the testimony of Ogden, another individual who has plead guilty to charges related to another fire, and Williams' ex-girlfriend, all of whom will recount incidents where Williams urged Ogden and others to set fires so that Williams and his colleagues at the Five Points Volunteer Fire Company could experience the energy rush associated with responding to and then extinguishing the fires. The fire at issue in this case allegedly was set on July 17, 2000. The other fires which are the subject of the contested testimony allegedly were set in March, 2000, September, 2000 and October, 2000.
The Court has been advised that Ogden has plead guilty to a lesser included offense of Arson Second Degree. As part of his plea agreement with the State he agreed to testify against Williams and co-defendant Brady. The State notes, however, that Ogden provided a statement to the Fire Marshall's investigator(s) shortly after his arrest, and before he struck his deal with the State, in which he recited the events which would be the subject of his "other bad acts" testimony. One of the State's other witnesses who would provide the "bad acts" evidence also has plead guilty to charges arising from one or more of the other fires and also agreed as part of his plea agreement with the State to testify on behalf of the State if requested. Once again, however, the State notes that this witness provided a statement to investigators shortly after his arrest, and before reaching any agreement with the State, in which he implicated Williams in other "bad acts." The final State's witness is Williams' ex-girlfriend. The Court has been made aware of no reason why she would have a motive to fabricate "bad acts" testimony against Williams.
Discussion
The Court's analysis must begin with the seminal Delaware case on Rule 404(b), State v. Getz. There, our Supreme Court set forth a six-factor test to be applied by the trial court when determining whether to admit "bad acts" evidence:
Del. Supr., 538 A.2d 726 (1988).
(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." (citation omitted)
(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 its 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. The Court will address each of the Getz factors seriatim.
Id. at 734.
1. Material to a Fact In Issue
The State proposes to introduce the "bad acts" evidence in its case-in-chief. The Court, therefore, must determine if the evidence is material to an issue in dispute in the case and also if introduction of the evidence in the State's case-in-chief would be prejudicially premature. Here, the State contends that the evidence of other instances where Williams urged Ogden and others to start fires is relevant and, therefore, "material" to the issue of intent, a requisite element of the crime of Arson Second Degree. The State will argue that Williams' intent that Ogden set the vehicle fire at issue in this case can be inferred circumstantially by the fact that he had asked Ogden to set fires in other instances and knew from those other instances that Ogden would comply. The State notes as well that the witnesses' testimony regarding Williams' desire to have fires set so that he and his friends at the fire company could put them out explains his motive for the crime and, necessarily then, also is probative of intent.
See Cobb v. State, Del. Supr., 765 A.2d 1252, 1255 (2001) (noting that Rule 404(b) does not permit the admission of "bad acts" evidence in the State's case-in-chief unless it is offered to support an element of the State's prima facie case).
11 Del. C. § 802 ("A person is guilty of arson in the second degree when the person intentionally damages a building by starting a fire . . .").
The Court agrees that Williams' intent is a material issue and that instances where Williams directed Ogden to set other fires with productive results are probative of this element of the State's prima facie case. This conclusion, however, does not end the inquiry. The State's proffer begs the question: to what issue are the "bad acts" which occurred after the incident fire "material?" Stated differently, how can subsequent fires be relevant to Williams' intent or motive at the time he allegedly directed Ogden to set the fire on July 17? As the Court understands the State's intent argument, the other "bad acts" demonstrate that Williams knew Ogden would set the fire if asked and that the fire would be destructive. Fires which were set after the incident fire could not have factored into Williams' thought process.
See Getz, 538 A.2d at 730 n. 3 (noting that 404(b) issues usually involve prior bad acts but acknowledging that subsequent bad acts can be offered for a material purpose, such as demonstrating a consciousness of guilt). Of course, no such proffer of materiality has been made here and the Court can appreciate no basis in these facts for such a proffer to be made.
Evidence of fires set at Williams' urging before the incident fire are material to an issue which reasonably can be anticipated to be in dispute during the State's case-in-chief. Accordingly, such evidence survives in tact through the first layer of the Getz filter. Evidence of the subsequent fires, however, has been deemed immaterial and, therefore, must be excluded.
Getz requires only that the Court reasonably anticipate that a factual dispute will develop, not that it, in fact, exists at the time of the ruling in limine. Id. at 734.
2. The 404(b) Factors
The Court has already determined that the evidence of prior fires is probative of Williams' motive and intent. Both matters are recognized by Rule 404(b) as appropriate exceptions to the rule's general prohibition of "bad acts" evidence. Accordingly, the prior fires pass through this Getz filter as well.
D.R.E.404(b).
3. Plain, Clear and Conclusive Evidence
Williams' showcase argument is that the sources of the evidence regarding the other "bad acts" are, at best, suspect and, consequently, the State cannot present "clear, convincing and conclusive" evidence with respect to such acts. Specifically, Williams points out that two of the State's three witnesses are now convicted criminals (arsonists no less) who both have a motive to fabricate which derives from the plea deals they struck with the State.
The Court noted during argument that the evidentiary standard enunciated in Getz is nomenclature foreign, as best as the Court can tell, to other reaches of our jurisprudence. Did Getz intend for the evidence of other "bad acts" to be measured by a "preponderance of the evidence," "clear and convincing," "beyond a reasonable doubt," or some other, perhaps hybrid standard of proof? Getz cites to Renzi v. State which, apparently, is the origin of the phrase "plain, clear, and conclusive" evidence, although Chief Justice Herrmann declined to define or explain the phrase. Renzi, in turn, cites to Kraft v. United States which also uses the phrase in question and also leaves it dangling, undefined and unexplained.
Del. Supr., 320 A.2d 711, 712 (1974).
8th Cir., 238 F.2d 794 (1956).
Id. at 802.
The parties did not direct the Court to any decision from any court in Delaware or elsewhere which defines this apparently unique standard of proof. The Court has located at least two cases in which the Delaware Supreme Court appears to suggest that the Getz standard is tantamount to a "clear and convincing" standard. The Court will accept this guidance and apply a clear and convincing standard to the proof of the prior fires to be offered by the State. Clear and convincing evidence has been defined by the Delaware Supreme Court as that evidence which "when weighed against the evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion."
Nelson v. State, Del. Supr., No. 176, 2000, Veasey, C.J. (April 30, 2001) (ORDER at 6) (affirming the admission of 404(b) evidence, the Court determined inter alia that "the evidence of prior bad acts was proven by clear and convincing evidence"); Capano v. State, Del. Supr., Nos. 110, 149, 1999, 2001 Del. LEXIS 349, Veasey, C.J., Mem. Op. at *179 (August 10, 2001) (en banc) (substituting "clear and convincing" for "plain, clear, and conclusive").
Edward and Dixie H. v. DCPS, Del. Supr., 539 A.2d 1050 (1985).
The Court is satisfied that the State's evidence of the prior "bad acts" will pass muster under a clear and convincing standard of proof. While it is not clear to the Court which of the State's witnesses have knowledge of the March, 2000 fire, the Court concludes that any or all of them could testify about the event in a manner which would satisfy this prong of the Getz analysis. The two individuals who have pled guilty to crimes related to fire-setting activity provided to investigators what they knew of Williams' involvement in the other "bad acts" before they had a self-interested motive to do so. In any event, any such motive could be exposed on cross examination if, in fact, it exists. For her part, Williams' ex-girlfriend has no discernable motive to fabricate her testimony. The Court concludes, therefore, that a high probability of reliability with respect to the prior "bad acts" evidence has been established. The prior fires continue to pass through the Getz filters.
4. Temporal Proximity
The Court has determined that only fires which were set prior to the incident fire are material to any fact in issue in this case. The only such fire which has been identified to the Court is a fire set in March, 2000, approximately four months before the July, 2000 fire which has been indicted here. Getz requires that the prior bad acts not "be too remote in time" from the charged event. In making this determination, the Court need not follow a bright line rule. In the context of "bad acts" evidence offered to establish intent or motive — as opposed, for instance, to evidence offered to establish opportunity or plan — temporal proximity is less important. Evidence offered to establish plan or modus operandi necessarily must be related close in time to the charged event to establish the point. On the other hand, there is no inherent sequential connection between prior "bad acts" and the charged event when the "bad acts" evidence is offered to establish intent. Events which shape and direct one's state of mind can occur minutes, days, or years before the crime is committed.
Allen v. State, Del. Supr., 644 A.2d 982, 988 (1994) (suggesting evidence presented within ten years is relevant under 404(b)).
See United States v. Ruiz, 7th Cir., 178 F.3d 877, 880-81 (1999) (effect of remoteness "depends on the theory for which the evidence is offered").
See e.g. Vanderhoff v. State, Del. Supr., 684 A.2d 1232, 1233 (1996) (appropriate to admit evidence of prior improper sexual acts with the victim which occurred four years before the charged offence when the purpose of the "bad acts" evidence is to establish intent).
Here, the State will offer evidence of the prior fire in order to prove Williams' intent when he urged Ogden to set the fire at issue here. The four month interval between the two events makes Williams' conduct with respect to the prior fire no less probative. The evidence will be offered to establish that Williams intended Ogden to set the fire in July because he knew that Ogden had followed his similar direction in the past. The prior "bad acts" evidence has cleared this Getz filter as well.
5. The 403 Balancing
The Supreme Court has provided additional guidance with respect to the analysis to be conducted under D.R.E. 403 in the context of Getz. When conducting the balancing test required by 403, the Court should consider: "(1) the extent to which the point to be proved is disputed; (2) the adequacy of proof of the prior conduct; (3) the probative force of the evidence; (4) the proponent's need for the evidence; (5) the availability of less prejudicial proof; (6) the extent of the prejudice associated with the evidence; (7) the similarity between the charged offense and the prior activity; (8) the effectiveness of limiting instructions; and (9) whether the prior act evidence would significantly prolong the trial."
Deshields v. State, Del. Supr., 706 A.2d 502, 506-07 (1998); Trump v. State, Del. Supr., 753 A.2d 963, 971 (2000).
A. Extent To Which Intent Will Be Disputed
Williams has acknowledged that intent will be among the issues he will dispute at trial. Indeed, from the Court's understanding of the parties' respective positions, it appears quite clear that intent will be the focus of the State's case and the defense's attack of the State's case. This factor weighs in favor of admission of the "bad acts" evidence.
Of course, it must be noted that the Court has already determined that the issue of intent is "material" in the context of the Getz analysis.
B. Adequacy of Proof
The Court has already determined that the State has clear and convincing evidence of the prior "bad acts." Accordingly, the Court concludes that this factor weighs in favor of admission of the evidence.
C. Probative Force of the Evidence
Once again, the Court's previous determination that the "bad acts" evidence is "material" directs the Court's analysis on this issue. Clearly, the fact that Williams had directed Ogden to set a fire on a prior occasion and knew that he had followed that direction is probative of his intent during the events leading to the indicted charge. Although clearly circumstantial, the prior "bad acts" evidence, under the rather unique facts of this case, likely will reveal more of Williams' intent than any other available evidence. This factor weighs in favor of admitting the evidence.
D. The Proponent's Need For The Evidence
The "bad acts" evidence is not duplicative of other evidence. The State will present Ogden's testimony regarding the events leading up to the fire he set on July 17. He will testify that Williams urged him to set the fire and gave him a lighter to aid in the process. With respect to Williams' intent at the time of these events, the State's best, and perhaps only, evidence is the testimony of Ogden and others regarding Williams' role in the March, 2000 fire. Absent this evidence, the State acknowledged at oral argument that their case with respect to the intent element of Arson Second Degree is not strong. The State has demonstrated its need for the "bad acts" evidence and in so doing has satisfied this prong of the 403 analysis.
E. Availability of Less Prejudicial Evidence
As noted above, the State has satisfied the Court that the "bad acts" evidence probably represents the only probative evidence of Williams' intent to aid and abet the commission of Arson Second Degree. For its part, the Court is unable to identify any other evidence probative of this issue. This factor weighs in favor of admitting the evidence.
F. The Prejudicial Effect of the "Bad Acts" Evidence
Clearly, evidence of the prior fire will be prejudicial to Williams. Indeed, all "bad acts" evidence is, by its nature, prejudicial to a defendant. The Court's focus in determining whether the prejudice is unfair must be on whether the evidence would "tend to provoke an emotional response in the jury or otherwise suggest a decision on an improper basis." And to require exclusion, the unfair prejudice must "substantially outweigh" the probative value of the evidence.
2 Weinstein Berger, Weinstein's Federal Evidence, § 404.21[3][b], at 404-69 (2d Ed. 2001)
Id. at 404-68 (citations omitted).
United States v. Buckner, 7th Cir., 91 F.3d 34, 37 (1996).
The Court cannot conclude that the prejudice caused by the admission of evidence of the prior fire would substantially outweigh the probative value of such evidence, nor can the Court conclude the any such prejudice would be unfair. The evidence is not of the type that would be likely to prompt an emotional response from the jury. Moreover, as stated, the evidence is highly probative of Williams' intent. Accordingly, the balance tips decidedly in favor of admitting the evidence.
G. The Similarity of The Prior Wrong
The State's proffer indicates that the prior "bad act" is virtually identical in its circumstances to the charged offense. This factor weighs in favor of admitting the evidence.
H. Effectiveness of Limiting Instructions
With the assistance of the parties, the Court is confident that it can craft an instruction which effectively explains to the jury the limited context in which it may consider the "bad acts" evidence.
The Court will propose the following instruction to the parties: "As you know, the defendant Williams is on trial here for Arson Second Degree. I have just explained the elements of that offense to you. And you will recall that one of the elements of that offense that the State must prove beyond a reasonable doubt is that the defendants intended to set, or to aid and abet in the setting, of a fire, on July 17, 2000. You have heard testimony that on a prior occasion defendant Williams urged Ogden [and others] to set a fire in a vehicle and that Ogden did so. Such testimony is not evidence that Williams engaged in any wrongful or criminal conduct with respect to the July 17, 2000 fire and you may not consider it as such. The government must prove Williams' involvement in the July 17, 2000, fire with other evidence beyond a reasonable doubt. But if you conclude on the basis of the other evidence presented to you, beyond a reasonable doubt, that Williams set, or aided and abetted in the setting of the July 17, 2000 fire, you may consider the testimony about the prior fire in deciding whether Williams possessed the requisite intent on July 17, 2000, to be found guilty of Arson Second Degree. I remind you that Williams is on trial here only for the July 17, 2000 fire; he has not been charged with setting or helping to set any other fires. Do not convict him if the State has failed to prove this charge beyond a reasonable doubt. And, of course, you are not to consider evidence of the prior fire in any manner whatsoever with respect to defendant Brady. The evidence was not presented against him and has nothing to do with him."
I. Trial Delay
The evidence of the prior "bad acts" will involve the testimony of two or three witnesses. The Court has not been advised of any significant delay which would be caused by the presentation of this evidence. The parties anticipate concluding the trial in two days as scheduled. This factor also weighs in favor of admitting the evidence.
6. The Limiting Instruction
The Court has proposed a limiting instruction and is confident that it, or a similar form proposed by the parties, will be effective.
Conclusion
Based on the foregoing, defendant Williams' motion in limine is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Very truly yours,
Joseph R. Slights, III
JRS, III/sb
Origingal to Prothonotary