        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                 :
                                   :         ID No. 1508010489
                v.                 :         In and For Kent County
                                   :
ABDUL T. WHITE,                    :
                                   :
             Defendant.            :


                MEMORANDUM OPINION AND ORDER


                          Submitted: June 2, 2017
                          Decided: July 20, 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.




Clark, J.
                                   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
                                              2
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




1
  Under the Delaware Rules of Evidence, character evidence is inadmissible to show that the
defendant acted in conformity with his character. D.R.E. 404(a). However, the Rules permit evidence
of other crimes, wrongs, or acts to show “motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident.” D.R.E. 404(b).
                                                 3
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.




2
    2017 WL 384083, at *3 (Del. Super. Ct. Jan. 26, 2017).
3
 The Delaware Supreme Court enumerated guidelines to govern admissibility of character evidence
pursuant to Rule 404(b). Getz v. State, 538 A.2d 726, 734 (Del. 1988).
                                                  4
      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.




4
  E.g., People v. Cardenas, 338 P.3d 430, 438 (Colo. App. 2014) (holding that a defendant’s tattoo is
relevant in terms of it being a remark instead of character evidence under Colorado’s Rule of Evidence
404(b)); State v. Mediz, 2014 WL 5391985, *1 n.1 (Ariz. Ct. App. Oct. 22, 2014) (stating that a tattoo
“is not a crime, wrong, or an act” that can be analyzed under Arizona’s Rule of Evidence 404(b)).
5
    2015 WL 1279958 (Del. Mar. 19, 2015).
6
    Id. at *2.
7
    Id. at *3–4.
                                                  5
                  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 admission by a party opponent because it constitutes a statement he made himself
or is one that he adopted.
          Delaware’s evidence rules provide that a statement made by the defendant either
in his individual or in a representative capacity constitutes a party-admission. 10 The
rules of evidence define a statement as “an oral or written assertion.” 11 Mr. White’s
tattoo clearly fits this definition of a statement because it is a written assertion.
Accordingly, it constitutes an admission if it fits within any of the definitions set forth
in Rule 801(d)(2). Here, either Mr. White tattooed this statement on himself, making
it his own statement, or he allowed or instructed a tattooist, acting as his representative,
to tattoo this statement onto his body. Under either set of circumstances, this tattoo
constitutes a statement that is a party-admission and is therefore non-hearsay.
          Furthermore, even assuming that the Court cannot view this as Mr. White’s own
direct admission without the facts surrounding the inking of the tattoo, the Court is
convinced that it would still qualify as an adoptive admission. Consequently, it still
constitutes non-hearsay. Rule 801(d)(2)(B) provides that when a “statement is offered
against a party and is . . . a statement of which he has manifested his adoption or belief
in its truth . . .”, that statement is not hearsay. 12 When the circumstances surrounding


8
    D.R.E. 801(c).
9
    Id. at 801(d)(2).
10
     Id. at 801(d)(2)(A).
11
     Id. at 801(a).
12
     Id. at 801(d)(2)(B).
                                              6
a statement by someone other than the declarant evidence that the party manifested his
adoption or belief in the statement, it is admissible as non-hearsay pursuant to the
Delaware Rules of Evidence. 13 That Mr. White acquired this tattoo and has not tried
to cover it with a different tattoo or remove it completely is evidence that he has
manifested his adoption or belief in the statement. Therefore, the court is convinced
that even if this did not constitute an admission made by Mr. White himself or by
another in a representative capacity, it is clearly an adopted admission. Pursuant to the
rules of evidence, under either set of circumstances, it is non-hearsay.


     C. The admission of this evidence does not violate Mr. White’s Constitutional
                         right to confront witnesses against him.
       In one sentence in Mr. White’s response to the State’s motion, in a conclusory
manner, he states that this evidence will violate his rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution and Article I, section
7 of the Delaware Constitution. However, Mr. White does not provide any factual or
legal analysis in support of this argument. Nor does he cite to any relevant case law to
support his argument. Mr. White did not expand on this proposition at the oral
argument either.
       Regardless, as the Court finds that the tattoo qualifies as a party-admission, the
admission of this evidence does not violate Mr. White’s constitutional right to confront
witnesses against him. 14 It is clear that the Confrontation Clause does not apply to

13
   See Swan v. State, 820 A.2d 342, 353 (Del. 2003) (holding that the defendant adopted a declarant’s
statement regarding the defendant’s guilt because the surrounding circumstances manifested that the
defendant believed the declarant’s statements were true and were therefore treated as a party-
admission).
14
   See United States v. Jones, 314 Fed. Appx. 883, 886 (7th Cir. 2009) (holding that the Sixth
Amendment’s Confrontation Clause is only implicated by testimonial statements; party-admissions
are non-testimonial and therefore do not implicate the Sixth Amendment); United States v. Jones, 205
Fed. Appx. 327, 342–343 (6th Cir. 2006) (holding that a party-admission is non-testimonial and
therefore does not violate the Confrontation Clause).
                                                 7
party-admissions. The Supreme Judicial Court of Maine aptly explained the rationale
for this principle:
          [The Confrontation Clause] is the guarantee of opportunity for cross-
          examination, to expose the possible unreliability of evidence. Since
          however, the traditional common law rationale for receiving the extra-
          judicial admission of a party in evidence against him is that a party cannot
          object to his failure to have a chance to cross-examine himself i.e. to
          confront himself . . . there is no reasonable basis for applicability of the
          confrontation Clause as to a party’s admission. 15
As this is an admission by a party opponent, this evidence does not implicate Mr.
White’s right to confront witnesses.


          D. Any unfair prejudice does not substantially outweigh the evidence’s
            probative value; therefore, the evidence is admissible under Delaware
                                    Rule of Evidence 403.
          As the Court finds that Mr. White’s tattoo constitutes a party-admission making
it non-hearsay and that it is not appropriately analyzed under Rule 404(b), the Court
turns to Rule 403 to determine whether the evidence is admissible. Notwithstanding
the evidence’s potential admissibility as non-hearsay, the Court may exclude relevant
evidence “if its probative value is substantially outweighed by a danger of unfair
prejudice.”16 Evidence is unfairly prejudicial when it creates an “undue tendency to
suggest that the jury will render an adverse decision based on emotional grounds,
instead of properly weighing the evidence.”17



15
     State v. Kimball, 424 A.2d 684, 688 (Me. 1981) (citations omitted).
16
     D.R.E. 403.
17
   Gallaway v. State, 65 A.3d 564, 571 (Del. 2013) (quoting Williams v. State, 494 A.2d 1237, 1241
(Del. 1985)). See also United States v. Gibbs, 182 F.3d 408, 429 (6th Cir. 1999) (quoting United
States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)) (noting that “[u]nfair prejudice does not mean the
damage to a defendant’s case that results from the legitimate probative force of the evidence; rather
it refers to evidence which tends to suggest decision on an improper basis”).
                                                   8
       A defendant’s tattoo can be relevant and probative to his identity as the person
who committed the crime. In arguing that the tattoo was admissible under Rule 404(b),
the State maintained that the tattoo is relevant to the identity of the person who
committed the robbery. While the proper analysis is under Rule 403 rather than Rule
404(b), evidence tending to show the identity of a person who committed the crime
must be weighed pursuant to Rule 403 as well. Here, the State maintains that this tattoo
is probative regarding the identity of the person who committed the robbery while using
duct tape. Mr. White counters that identity is not an issue in the case because he
previously confessed to the underlying robbery.
       While Mr. White may have confessed to the commission of the robbery that
occurred in conjunction with the murder, the identity of the robber remains an issue in
the case.18 Mr. White has not pled guilty to this charge, and therefore, the State
maintains its burden of proving beyond a reasonable doubt that Mr. White was the
person who committed the home invasion and robbery that accompanied the murder.
Moreover, identity is particularly at issue here because of the manner in which the
perpetrators carried out this crime. All three participants entered the house wearing
disguises. Under such circumstances, the State should be permitted to establish identity
with other admissible evidence. Here, the tattoo is circumstantial evidence of the
identity of one of the perpetrators.
       Relevant evidence is any evidence that has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or



18
   See State v. Sanchez, 635 P.2d 1217, 1222 (Ariz. Ct. App. 1981) (holding that the defendant’s
tattoos were properly admitted evidence showing the defendant’s identity as the person who
committed the crime despite the defense’s argument that identity is not an issue; the evidence was
admissible because the prosecutor had to prove this element of the crime). While in the Sanchez case
the defendant did not admit to his part in the crime, the Court does not believe that this distinction
changes the outcome because the State is still required to prove that Mr. White was the one who
committed the robbery crime. The State is permitted to prove this element with any admissible
evidence including the tattoo.
                                                  9
less probable than it would be without the evidence.” 19 The State argues that the tattoo
is evidence of identity because having this tattoo makes it more probable that Mr. White
committed the robbery. The State maintains that the commission of this crime involved
the use of duct tape, and therefore, the perpetrator committed the crime in the same
fashion as that indicated by Mr. White’s tattoo. In essence, this is a common plan or
scheme argument in that the manner in which the perpetrator carried out this crime was
unique to a specific individual. Therefore, someone with a tattoo claiming to carry out
similar crimes in a similar fashion makes it more probable that the person with the
tattoo committed this specific crime.
         The Court recognizes that this argument would be stronger had the State offered
evidence of Mr. White’s previous crimes that involved the use of duct tape. However,
despite the lack of evidence of prior crimes carried out in a similar fashion, looking at
the plain meaning of Mr. White’s tattoo, “Duct Tape Bandit,” one cannot read it, using
common sense, to mean anything other than what it says: that he commits crimes
similar to that of robbery with the use of duct tape. For purposes of a Rule 403
balancing test, the Court finds that this evidence aptly meets the relevancy threshold
and is highly probative of identity.
         Furthermore, a defendant’s tattoo can also be probative of his intent and motive
to commit a crime. 20 The Delaware Supreme Court’s decision in State v. Watson, is



19
     D.R.E. 401.
20
   State v. Watson, 2015 WL 1279958 (Del. Mar. 19, 2015) (Slip Op.); Roth v. State, 788 A.2d 101,
111 (Del. 2001) (holding that it was proper for the trial court to admit testimony describing a
defendant’s tattoo of a gun on his back and the words “No Limit,” when the defendant’s aversion to
firearms was at issue). See United States v. Pierce, 785 F.3d 832, 841 (2d Cir.), cert. denied, 136 S.
Ct. 172, 193 L. Ed. 2d 139 (2015), and cert. denied sub nom. Colon v. United States, 136 S. Ct. 213,
193 L. Ed. 2d 163 (2015), and cert. denied sub nom. Meregildo v. United States, 136 S. Ct. 270, 193
L. Ed. 2d 198 (2015) (admitting evidence of a tattoo which meant “Young Gunnaz Killer” where
tattoo evidence helped to “establish [defendant’s] motive for violence against the Young Gunnaz,” a
rival gang); Slavin v. Artus, 413 Fed. Appx. 380 (2d Cir. 2011) (allowing admission of a defendant’s
“white supremacist tattoos to establish motive and intent”); Morris v. State, 358 Ark. 455 (2004)
                                                 10
apposite to the facts here. In Watson, the defendant was on trial for shooting at a police
officer’s home. 21       The Watson court admitted into evidence depictions of the
defendant’s tattoo which read “187.”22 Testimony was heard explaining that “187”
meant “officer down,” i.e., the murder of a cop, and was a motto that the defendant
lived by.23 The Watson court held that the tattoo “evidence was highly probative in
proving [the defendant’s] intent and motive in shooting at [the officer’s] home, and
was not outweighed by any alleged prejudice.”24
           Similarly here, the tattoo reading “Duct Tape Bandit” tends to show Mr. White’s
motive, intent, and state of mind, in entering the home and committing certain acts
therein. Unlike in the Watson case where testimony was needed to establish the tattoo’s
meaning, here no such testimony is required. Mr. White’s tattoo has a plain and clear
meaning without testimony providing such context.                The Court finds the tattoo
evidence is highly probative to prove matters relevant to the State’s case-in-chief. Mr.
White stands accused of several serious felonies, a number of which have intent as a
factor, which the State bears the burden of proving in its prima facie case. 25
           While the Court recognizes that evidence of tattoos can be prejudicial, here there
is minimal risk of unfair prejudice. Any harm to Mr. White’s case caused by admitting
this tattoo evidence will likely be due to the legitimate probative force of the evidence,
as it indicates his identity, intent, or motive to commit certain criminal acts through the
use of duct tape. Accordingly, the Court finds that any potential unfair prejudice does


(admitting a tattoo reading “Death Before Dishonor” where the defendant’s motive and state of mind
in situations where he was disrespected was at issue).
21
     Watson, 2015 WL 1279958, at *4.
22
     Id.
23
     Id.
24
     Id.
25
  E.g., home invasion requires the state to prove that a defendant entered a home with “intent to
commit a crime therein,” 11 Del. C. § 826(a).
                                               11
not substantially outweigh the evidence’s probative value. Moreover, any unfair
prejudice can be significantly mitigated by an appropriate limiting instruction.
Therefore, notwithstanding Rule 403, the evidence will be admissible at trial provided
that facts are admitted in evidence tending to show that the perpetrators carried out
these crimes with the use of duct tape as alleged by the State.

                                    IV.    Conclusion
      For the reasons set forth above, evidence of Mr. White’s tattoo is admissible for
the limited purpose of proving identity, intent, and motive. The Court will issue a
limiting instruction, at Mr. White’s request, to ensure that the jury does not consider
this evidence for any improper purpose. Since the photograph included with the State’s
proffer includes a picture of Mr. White showing various other tattoos including one
depicting a gun and another reading “Death Before Dishonor,” which the State has not
sought to admit, the State must redact any photos of Mr. White’s tattoo. This will
ensure that none of Mr. White’s other tattoos are visible to the jury or otherwise
presented to them.


      IT IS SO ORDERED


                                                /s/Jeffrey J Clark
                                                Judge




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