William H. Leonard, Esquire
Jonathan Layton, Esquire Layton & Associates, P. A.
L. MEDINILLA, JUDGE
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
and Procedural Background
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
down by each witness, the proffers made by the State are as
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.
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
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.
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).
of the Parties
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.
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.
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.""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.'"
State bears the burden of proving the admissibility of
evidence generally proscribed under D.R.E.
404(b). Under Delaware law, where the State seeks
to introduce evidence under D.R.E. 404(b), the six-factor
Getz v. State test applies.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
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." 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 ...