Submitted: June 2, 2017
the State's Motion in limine - GRANTED
Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF
JUSTICE, Dover, Delaware, for the State.
Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and
Alexander Funk, Esquire, CURLEY, DODGE & FUNK, LLC,
Dover, Delaware, Attorneys for Defendant.
MEMORANDUM OPINION AND ORDER
JEFFREY J. CLARK JUDGE.
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
Background and Arguments of the Parties
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.
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
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.
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. 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.
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.
Mr. White's tattoo cannot be characterized as a prior
crime, wrong, or act that falls under Delaware Rule of
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.
Court finds support for this conclusion in the Delaware
Supreme Court decision in Watson v.
State. 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).The Delaware Supreme Court analyzed the
defendant's prior crimes under Rule 404(b), but evaluated
the admissible tattoo evidence solely under Rule
Similarly here, a 404(b) analysis is inappropriate. The Court
must instead examine the tattoo under other relevant rules of
The tattoo constitutes an admission by a party
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,
Delaware Rules of Evidence define this as
non-hearsay. Accordingly, the Court views Mr.
White's tattoo as an ...