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State v. Verna

Superior Court of Delaware

January 19, 2018

State of Delaware
v.
Frank Verna

          William H. Leonard, Esquire

          Jonathan Layton, Esquire Layton & Associates, P. A.

          VIVIAN L. MEDINILLA, JUDGE

         Dear Counsel:

         This is the Court's ruling on the State's Motion in Limine to Admit 404(b) Evidence Concerning Prescription Drug Usage ("Motion") in the above-captioned case. For the reasons stated below, the State's Motion is GRANTED.

         Factual and Procedural Background

         Defendant Frank A. Verna ("Defendant") is charged with two counts of Robbery First Degree. On March 29, 2016, Defendant is alleged to have robbed the Chestnut Hill Plaza Rite Aid Pharmacy in Newark, Delaware, stealing a full bottle of Percocet/Oxycodone and a half bottle of Xanax pills. As part of the investigation in to the robbery, detectives interviewed several witnesses including Defendant's girlfriend Judith Turner ("Turner"), Defendant's sister Lynn Verna ("Lynn"), and Defendant's ex-wife Christina Verna ("Christina"). The State seeks to admit testimonial evidence from these three witnesses concerning their personal knowledge of Defendant's prescription drug usage and alleged misuse.

         Broken down by each witness, the proffers made by the State are as such:

As to Lynn, the State seeks to present that Defendant lived with her for a six-week period following the separation of Defendant and Christina in January 2015. It is expected that Lynn would testify to her personal knowledge of Defendant's use of the prescription medications Percocet and Xanax. The State seeks to admit several incidents that Lynn observed during that time, including, to wit: Defendant's mood swings, prolonged use of the bathroom and a powdery residue left on the bathroom counter, and frequent requests for saline solution.

         As to Turner, the proffer begins with evidence that Turner dated Defendant from July 2015 until October 2016. The State seeks to present Turner's personal knowledge of Defendant's prescriptions for opiates, Xanax, and Adderall and knowledge of Defendant's doctor visits for those prescriptions. It is expected that Turner would testify to several incidents that occurred during that time, and her observations that included Defendant's multiple instances of him passing out or falling asleep, slurring of speech, and prolonged use of the bathroom with audible snorting of presumably a powdered substance.

         As to Christina, the State wishes to present evidence that she was married to Defendant from 1999 until 2015. It is expected that Christina would testify to her personal knowledge of Defendant's usage of prescribed opiates, Xanax, and Adderall and Defendant's frequent change in doctors. The State expects to present evidence concerning several incidents that occurred at the end of Defendant and Christina's marriage, including, to wit: Christina finding straws with powdery residue, Defendant's prolonged use of the bathroom, Defendant's frequent requests for saline solution, and Defendant passing out.

         To the extent the evidence is redundant or cumulative, the Court will consider this issue separately at trial. For now, the issue is presented under 404(b).

         Contentions of the Parties

         The State and Defendants presented their arguments in writing and at a hearing. The Court reserved decision on this matter and allowed for supplemental briefing on this issue.

         The State argues that the proffered testimony is 404(b) evidence for the proper purpose of establishing motive or identity. The State argues that this testimony is not substantially outweighed by the potential for prejudice and that any potential prejudice can be properly addressed through a limiting instruction. Defendant disagrees and states that the proposed testimony is not proper 404(b) evidence, since it does not involve a "prior bad act" or crime.

         Standard of Review

         "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."[1]"Thus, evidence relating to a party's uncharged bad acts is not admissible to prove propensity or 'support a general inference of bad character.' But the same evidence may be admissible 'when it has "independent logical relevance" and when its probative value is not substantially outweighed by the danger of unfair prejudice.'"[2]

         The State bears the burden of proving the admissibility of evidence generally proscribed under D.R.E. 404(b).[3] Under Delaware law, where the State seeks to introduce evidence under D.R.E. 404(b), the six-factor Getz v. State[4] test applies.[5]The application of these factors to the purported D.R.E. 404(b) evidence is within the discretion of the trial court and reviewed under an abuse of discretion standard.[6]

         Discussion

         Defendant asserts that the evidence the State wishes to present does not qualify as a "prior bad act" and therefore is not proper 404(b) evidence. By D.R.E. 404(b)'s plain text, however, the rule does not only apply to "bad acts, " but rather "[o]ther crimes, wrongs or acts."[7] D.R.E. 404(b) references all acts by its plain text. While the "other act" can be a crime or wrong, it need not be unlawful or wrongful to be admissible. On at least two prior ...


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