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09/25/89 STATE DELAWARE v. STEVEN B. PENNELL

September 25, 1989

STATE OF DELAWARE
v.
STEVEN B. PENNELL, DEFENDANT



Upon Defendant's Motion In Limine to Exclude DNA Identification Evidence. Granted in Part. Denied in Part. Upon Defendant's Motion for Mistrial. Denied.

Reargued After Further Hearing, November 6, 1989.

Richard S. Gebelein, Judge.

The opinion of the court was delivered by: Gebelein

MEMORANDUM OPINION

RICHARD S. GEBELEIN, J.

This case involved three counts of first degree murder charging the defendant with the intentional killing of three women over a period of ten months. The case has involved allegations of "serial" murders with distinctive characteristics. On account of the crimes involved, an extensive investigative task force of law enforcement officers was established. The defendant was developed as a suspect in the case and, after extensive surveillance, was arrested for these offenses.

The defendant has filed two motions in limine to challenge the admissibility of certain evidence which the State has indicated it will offer at trial. In particular, the defendant challenges the admissibility of videotapes made at the locations where two of the three victims' bodies were discovered, as well as the admissibility of certain articles seized from the defendant during a search of his home and vehicle.

I

The defendant's first motion addresses the admissibility of the videotapes of the bodies of two of the victims as found by law enforcement personnel. The defense contends that these videotapes are not relevant, unusually gruesome and likely to lead to undue prejudice against the defendant.

Clearly in a case such as this, the nature of unusual wounds is relevant to the trier of fact. Likewise, the location and method of disposal of the bodies of the victims is relevant to the State's theory of the case. While autopsy photos or slides might illustrate equally well the wounds actually suffered by the victims in this case, such slides tell nothing about the location and manner of the disposal of the bodies. The videotapes are clearly relevant. D.R.E. Rule 401.

The Court has viewed the two videotapes and notes that they are not unduly long, nor staged in a provocative fashion. Rather, these two tapes depict, in an accurate fashion unavailable in any other format *fn1, what is undoubtedly a distasteful and unpleasant scene, a naked deceased female with distinctive wounds found in a isolated location. The tapes show the scene as discovered by the police and illustrate as well why the police concluded that the murders took place elsewhere with the bodies being dumped in the location where found.

In balancing potential prejudice to the defendant against the probative value of these videotapes, D.R.E. Rule 403, the Court finds that the probative value outweighs any unfair prejudice. Clearly, in any case involving mutilation, the fact of mutilation itself causes an emotional response. These videotapes are not so unusually gruesome as to give rise to a prejudicial emotional response beyond that inescapably present in a case such as this. On account of the nature of this case and the potential effect of this type of evidence upon the jury, prospective jurors were questioned about their ability to view graphic evidentiary material. The jurors selected were thereby sensitized to the fact that they will be exposed to unpleasant evidence.

The Court finds that the videotapes of the victims' bodies are admissible.

II

The defendant has also moved to exclude certain evidence seized from his home and van. In particular, certain videotapes which could be classified as pornographic, as well as magazines found in the defendant's van, are offered by the State. The State argues that the videotape "Taming of Rebecca" includes scenes of bondage, spanking and nipple mutilation, and that the victims in this case suffered from similar injuries. In particular, the autopsy results indicate contusions of the buttocks on two of the victims, evidence of binding on all three victims and nipple abrasions on two victims and a nipple missing on the third victim.

The Court has reviewed the materials which the State has indicated that it might offer, including four magazines seized from the defendant's van and four videotapes seized from defendant's residence.

The magazines seized from the defendant's van include two magazines which include articles on bondage, domination or spanking. Two additional magazines, while pornographic, do not depict any activity remotely relevant to this case.

Articles entitled "Domination and Submission" in Intimate Acts and "Bonds of Love" and "Our Secret Spanking Sessions" in Human Digest are included in the magazines seized. All four of these magazines were seized from under the rear bunk in defendant's van. The enumerated articles include activities that could lead to some of the injuries sustained by the victims. These articles, because of their location in the van and because of the injuries sustained by the victims, are relevant to the State's case. They are not unduly prejudicial to the defendant and may be admitted. The remainder of these two magazines and the other two magazines are of minimal probative value and will be excluded from evidence as likely to lead to prejudice.

With respect to the four videotapes seized and offered by the State, three appear to have little or no probative value and will be excluded from evidence. The "Taming of Rebecca", however, includes scenes of nipple mutilation. The State will show injuries suffered by two of the victims on their nipples, as well as, the third victim's nipple being removed. In addition, the videotape found in defendant's residence was "cued" to the nipple mutilation scene. This evidence is highly probative given the unusual or bizarre injuries suffered by the victims.

The Court must state, however, that the remainder of this film in gross and generally disgusting. There is no legitimate purpose to subject the jury to this entire film. The State may play that segment of the film involving the nipple mutilation and offer testimony as to the cueing of the film. The film itself may be admitted into evidence but not played in its entirety in Court.

Finally, the Court notes that the fact of the discovery of this pornographic material may be relevant to the State's theory of the case. The material itself, with the exceptions noted, is excluded from evidence; but the fact of its discovery may be offered by the State.

IT IS SO ORDERED.

RICHARD S. GEBELEIN, Judge.

This case arises from a series of murders of young females during 1987-88. In particular, the defendant is charged with 3 counts of First Degree Murder relating to the deaths of Catherine DiMauro, Shirley Ellis, and Michelle Gordon. Due to the "serial" nature of these murders this case achieved a high degree of publicity. Likewise, law enforcement agencies established a joint task force to investigate these crimes as well as other deaths and disappearances which occurred in the same area during the same general time frame.

During the course of these investigations the defendant was identified as a suspect. After extensive surveillance, the defendant was arrested and charged with three counts of First Degree Murder. Pursuant to a search warrant defendant's van was searched and a piece of carpet and carpet backing was seized from the rear floor area of the van. On those articles a stain was identified as that of blood. These two articles were submitted to Cellmark Diagnostics, a division of ICI Americas Inc., hereinafter "Cellmark", for comparison to known blood samples of the decedents through a DNA analysis.

On December 1, 1988, Cellmark reported that the stains "matched the DNA banding pattern" of the known blood of Catherine DiMauro. Subsequently, on March 27, 1989, Cellmark opined that the "frequency" of the DNA banding patterns of Catherine DiMauro is approximately "one in 180 billion" in the Caucasian population. Defendant has filed a motion in limine to exclude this evidence from the trial in this case.

No court in this jurisdiction has determined the admissibility of this type of DNA analysis in a criminal case where such evidence has been challenged by the defense. The Court has conducted extensive pretrial hearings on this matter and has further had the record supplemented by extensive videotape depositions of defense experts and prosecution rebuttal expert testimony.

The parties have briefed the issues involved with regard to the admissibility of this type of evidence. This is the Court's opinion on defendant's motion in limine.

HEARINGS

This Court heard testimony on behalf of the State from: Dr. David E. Housman, Professor at Massachusetts Institute of Technology, and staff member at the Center for Cancer Research, MIT, accepted as an expert in molecular biology, and molecular genetics; Dr. Robin Cotton, manager of research and development, Cellmark, accepted as an expert in molecular biology and biochemistry; Dr. Lisa Forman, Cellmark, accepted as an expert in population genetics; Karen Rubenstein, staff molecular biologist, Cellmark, (individual who performed the analysis in this case); Dr. David Goldman, Chief, Section on Genetic Studies at NIAAA, accepted as an expert in human genetics; and Dr. Edward Ratledge, Director, Center for Demography, University of Delaware, accepted as an expert in demographics. Testifying by deposition for the defense were: Dr. Laurence Mueller, Associate Professor, University of California, Irvine, accepted as an expert in ecology and population genetics; Dr. Simon Ford, Associate Professor, ...


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