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State v. Phillips

Superior Court of Delaware, New Castle

July 9, 2014


On the State's Motion in Limine to Admit Evidence of Forfeiture by Wrongdoing Pursuant to D.R.E. 804(b)(6).

John Downs, Esquire, Deputy Attorney General, Department of Justice, Attorney for the State.

Anthony A. Figliola, Esquire, Ste A, Michael C. Heyden, Esquire, Attorneys for Defendant Otis Phillips.




This is the Court's ruling on the State's motion in limine in which the State seeks to admit statements from Herman Curry ("Curry"), a deceased victim in this case, under the forfeiture-by-wrongdoing exception to the hearsay rule. Defendants Otis Phillips and Jeffrey Phillips were indicted by a grand jury for two counts of Murder in the First Degree, and other related charges, including Conspiracy in the First Degree, for the deaths of Curry and Alexander Kamara. Otis Phillips was also indicted for a third count of Murder in the First Degree for the death of Christopher Palmer ("Palmer"). The Court has considered the testimony presented in the August 19, 2013 Proof Positive Hearing, the State's motion and Defendant Otis Phillips' opposition, brought by and through counsel. For the following reasons, the State's motion is GRANTED.


On January 27, 2008, Palmer was fatally shot. When police arrived, they contacted Curry, who had called 911 to report the shooting. Curry stated that he was celebrating his birthday when two black males walked up to his building. He asked if they needed anything, but the men stated that they were fine. Within a few minutes, five more black men arrived and knocked on the door to the building. Curry heard Palmer inform the men that the party was over. One of the men said, "Shoot him." One of the men pulled out a gun and began firing rounds at Palmer. When Curry yelled out toward the group, they began firing in his direction. Curry escaped, ran into another room, and locked the door. Curry was familiar with the men and knew them to be members of the "Sure Shots" gang. He later identified Otis Phillips as the shooter in a photo lineup.

On July 8, 2012, there was a soccer tournament held at Eden Park in Wilmington, Delaware. At about 2:30 p.m., police responded to reports that shots had been fired in the recreational area in the park. Witnesses observed a man matching Otis Phillips' description walk through the park, head directly toward Curry, tap him on the shoulder, and shoot him multiple times in the chest. Five police witnesses positively identified Otis Phillips as the person who shot Curry. Four police witnesses positively identified Jeffrey Philips as being with Otis Phillips and firing his handgun into the crowd.

During a conversation with a witness, Jeffrey Phillips stated that "[Herman Curry] was trying to take [Otis Phillips] down for a murder that [Otis Phillips] committed and [Otis Phillips] said that [Herman Curry] needed to be taken care of."[2]


Hearsay is inadmissible unless an exception applies.[3] A statement is hearsay if it "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[4] The various exceptions to the hearsay rule include D.R.E. 804(b)(6), the exception for forfeiture by wrongdoing. Under D.R.E. 804(b)(6), hearsay is admissible when the declarant is unavailable[5] and when the "statement [is] offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."[6] D.R.E 804(b)(6) tracks its federal counterpart, [7] which codified the common-law doctrine of forfeiture by wrongdoing.[8] That doctrine "permitted the introduction of statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."[9] In addition to hearsay considerations, the U.S. Supreme Court has also recognized that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation."[10]

Federal and state courts applying the exception have required that the government prove by the preponderance of the evidence[11] "(1) that the defendant engaged or acquiesced in wrongdoing, (2) that the wrongdoing was intended to procure the declarant's unavailability, and (3) that the wrong doing did procure the unavailability."[12] The element of intent has been interpreted by courts and commentators to mean that "'the defendant ha[d] in mind the particular purpose of making the witness unavailable.'"[13] However, it has also been held that the "Government need not [] show that the defendant's sole motivation was to procure the declarant's absence; rather it need only show that the defense 'was motivated in part by a desire to silence the witness'"[14]

This Court has applied the forfeiture-by-wrongdoing exception in State v. Charbonneau.[15] In September of 2001, John Charbonneau ("John") disappeared. Thereafter, William Sproates ("Sproates") contacted the police and expressed fear to the police that defendant, Linda Charbonneau ("Linda"), and two other individuals were involved in John's death. Then, in October of 2001, Sproates disappeared.[16] Linda and the two other individuals were charged with the capital murders of both John and ...

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