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State v. White

Superior Court of Delaware, Kent

July 20, 2017

ABDUL T. WHITE, Defendant.

          Submitted: June 2, 2017

         Upon the State's Motion in limine - GRANTED

          Jason Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for the State.

          Edward Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and Alexander Funk, Esquire, CURLEY, DODGE & FUNK, LLC, Dover, Delaware, Attorneys for Defendant.



         I. Introduction

         Before the Court is the State's Motion in Limine seeking to admit evidence of a tattoo reading "Duct Tape Bandit" located on the stomach of Defendant Abdul White (hereinafter "Mr. White"). The State charged Mr. White with Murder First Degree, Robbery First Degree, and Home Invasion along with various other crimes. Because the perpetrators used duct tape during the commission of these crimes, the State seeks to offer evidence of Mr. White's "Duct Tape Bandit" tattoo at trial in order to establish identity, intent, and motive. Mr. White seeks to have this evidence excluded (1) as prohibited character evidence; (2) because the prejudicial effect of the tattoo substantially outweighs its probative value; and (3) as a violation of his constitutional rights. For the reasons set forth below, the State's Motion in Limine is GRANTED. Assuming the State can lay a proper foundation, the State may offer the tattoo for the limited purpose of showing identity, intent, and motive. The Court, upon request, will issue an appropriate limiting instruction, and the State must redact the picture so that Mr. White's other tattoos are not visible.

         II. Background and Arguments of the Parties

         The facts cited herein are those identified in the affidavit of probable cause accompanying the search warrant and as proffered by the State in its motion and at oral argument. On August 8, 2015, the police responded to a home invasion in Milford after three intruders wearing dark clothes and dirt bike style masks entered the home. The intruders ordered nine people in the house to lay on the floor in the living room and then held them at gunpoint. One of the intruders secured a tenth person with duct tape and also held that person at gunpoint in the living room. While two of the intruders held these people, one of the three intruders kept John Harmon (hereinafter "Mr. Harmon") in his bedroom. The intruder duct taped Mr. Harmon to his wheelchair and then fatally shot him in the head. The three men then fled the residence. The police developed Mr. White as a suspect and arrested him for these offenses.

         The State filed a motion in limine seeking to introduce evidence of Mr. White's tattoo at trial and evidence of other crimes where Mr. White allegedly committed previous home invasions and robberies with a similar modus operandi. In seeking to admit evidence of the prior crimes and the tattoo, the State primarily relied on Delaware Rule of Evidence 404(b)(hereinafter "Rule 404(b)"). Prior to oral argument, the State withdrew its request to introduce evidence of other bad acts and now seeks to introduce only evidence of the tattoo pursuant to Rule 404(b). The State also seeks to use this evidence to identify Mr. White as a perpetrator involved in the robbery. The State argues that there will be evidence that the home invasion and robbery involved the use of duct tape. The State argues that because the person responsible for the home invasion and robbery used duct tape, Mr. White's tattoo is highly probative of the identity of the perpetrator of this crime. Therefore, the State argues that the Court should permit it to use this as evidence of identity, an exception to the general rule that character evidence is inadmissible.[1]

         Mr. White opposes the State's use of this evidence. He argues that the use of this evidence demands wild, unfair, and prohibited speculation by the jury as to Mr. White's character and prior conduct. Accordingly, Mr. White argues that the Court must exclude such evidence under Delaware Rule of Evidence 403 (hereinafter "Rule 403"). For this proposition, Mr. White cites State v. Sterling where the Delaware Superior Court prohibited the State from introducing evidence of the defendant's nickname because it called for the jury to draw prejudicial inferences as to the defendant's criminal disposition.[2]

         Mr. White also argues that this evidence is impermissible character evidence that the State is not offering for a permissible purpose under Delaware Rule of Evidence 404(b). Moreover, Mr. White maintains that the Court cannot admit the tattoo under 404(b) because the Getz factors are not satisfied.[3] Namely, Mr. White argues that the tattoo is not material to an issue or ultimate fact in dispute; that the tattoo is not "plain, clear, and conclusive;" that there is no evidence as to timing of the tattoo; and that the probative value is outweighed by its unfair prejudicial effect under Rule 403. Additionally, Mr. White seeks to prevent the State from admitting the evidence on constitutional grounds. He argues that admitting this evidence would violate the Sixth Amendment's Confrontation Clause. Finally, Mr. White argued in his written motion and at oral argument that evidence of his tattoo is inadmissible hearsay.

         III. Discussion

         After reviewing the parties' submissions and arguments, the Court finds that the admissibility of the tattoo is not properly analyzed under Delaware Rule of Evidence 404(b). Instead, because the tattoo constitutes an admission and is therefore non-hearsay under relevant law and the rules of evidence, the balancing test set forth in Rule 403 ultimately governs its admissibility. Under this standard, the tattoo's unfair prejudicial effect does not substantially outweigh its probative value. Additionally, since the tattoo is an admission by a party, it does not violate Mr. White's constitutional rights.

         A. Mr. White's tattoo cannot be characterized as a prior crime, wrong, or act that falls under Delaware Rule of Evidence 404(b).

         The bulk of the parties' submissions and arguments centered on a Rule 404(b) analysis. This is most likely because the State's initial motion included evidence of prior crimes that Mr. White allegedly committed in a similar fashion to the manner in which the perpetrators carried out this crime. Had the State brought such evidence before the Court, it would have properly analyzed those prior crimes under Rule 404(b). Under such circumstances, it is possible that the Court would have admitted evidence of his tattoo as evidence of those prior crimes under a Rule 404(b) analysis as well. However, the State withdrew its motion to introduce such evidence. Standing alone, the tattoo is not properly considered to be a prior crime, wrong, or act.[4]

         The Court finds support for this conclusion in the Delaware Supreme Court decision in Watson v. State.[5] In the Watson case, the prosecutor sought to introduce evidence of the defendant's prior crimes and evidence of his tattoo under Rule 404(b).[6]The Delaware Supreme Court analyzed the defendant's prior crimes under Rule 404(b), but evaluated the admissible tattoo evidence solely under Rule 403.[7] Similarly here, a 404(b) analysis is inappropriate. The Court must instead examine the tattoo under other relevant rules of evidence.

         B. The tattoo constitutes an admission by a party opponent.

         The defense claims that the tattoo is inadmissible hearsay. The Court disagrees. While the Court recognizes that the State is clearly offering the tattoo for the truth of the matter asserted thereby implicating a hearsay analysis, [8] the Delaware Rules of Evidence define this as non-hearsay.[9] Accordingly, the Court views Mr. White's tattoo as an ...

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