          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                    IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                               )
                                                 )
         V.                                      )            ID No. 1401014417
                                                 )
FRANK DAVENPORT,                                 )
        Defendant.                               )

                                 Submitted: February 10, 2015
                                   Decided: March 4, 2015

                            Upon Defendant’s Motion in Limine
                    (as to statements by Holly Wilson in October 2009)
                                         DENIED

         This matter is before the Court on Defendant’s Motion in Limine.

Defendant seeks to exclude certain evidence on the grounds that it is inadmissible

hearsay. The underlying case concerns the death of Holly Wilson, which occurred

on January 16, 2010. The State has charged Defendant Frank Davenport with

Wilson’s murder. In connection with the murder trial scheduled for June 2015, the

State seeks to admit evidence of an alleged incident involving Defendant and Ms.

Wilson in October 2009.1 Defendant’s pending Motion seeks to limit the State’s

use of such evidence at the June 2015 murder trial.

         Specifically, Defendant moves to exclude: (i) a letter to Defendant allegedly

hand-written by Ms. Wilson in October 2009; (ii) statements by Ms. Wilson to her


1
    Defendant is facing separate charges arising from the alleged October 2009 incident.
son about the alleged October 2009 incident; and (iii) statements to police officers

by Ms. Wilson and her son related to the alleged October 2009 incident.2

Defendant concedes that the evidence at issue is non-testimonial.                  Moreover,

Defendant emphasizes that his challenge does not implicate his Sixth Amendment

right to confront witnesses. Rather, Defendant seeks a ruling in advance of trial to

exclude the State’s evidence as inadmissible hearsay. 3                 The State opposes

Defendant’s Motion on the grounds that the challenged evidence is admissible and

should be presented for the jury’s consideration. This is the Court’s decision on

Defendant’s Motion in Limine.

       1. Statements by Ms. Wilson’s Son

       It is expected that Stephen McElwee, Ms. Wilson’s son, will testify as a

witness at trial and will be subject to examination and/or cross-examination by

Defendant’s lawyers.        Accordingly, to the extent that Defendant objects to

testimony by police officers about what Mr. McElwee told police, those objections

are OVERRULED. To the extent that the State intends to present Ms. Wilson’s

statements to her son through the testimony of Mr. Elwee, then the admissibility of

those statements by Ms. Wilson is governed by the analysis set forth below.


2
   Defendant must specifically identify what evidence he seeks to exclude as hearsay.
Defendant’s Motion in Limine, as submitted to the Court, challenges “other hearsay testimony,
including, but not limited to testimony by police officers about what the decedent or the
decedent’s son told police.” Def.’s Mot. in Limine 2. To the extent that Defendant seeks a
ruling before trial, the Court will limit its consideration to the statements enumerated above.
3
  The Court will limit its ruling to the parameters of Defendant’s legal challenge.
                                              2
       2. Ms. Wilson’s Statements

       Defendant challenges the admissibility of certain out-court-statements made

by Ms. Wilson. Specifically, Defendant challenges: (i) the hand-written letter

found by police in October 2009, which the State claims Ms. Wilson wrote at the

time of the October 2009 incident; (ii) Ms. Wilson’s statements to her son, made at

the time of the October 2009 incident; and (iii) Ms. Wilson’s statements to police

about the October 2009 incident.

       Under the Delaware Rules of Evidence (“D.R.E.”), an out-of-court written

or verbal statement by someone other than the declarant testifying offered in

evidence to prove the truth of the matter asserted qualifies as hearsay. 4 Hearsay is

generally inadmissible unless the statement is privy to a recognized exception to

the hearsay rule.5 There are three hearsay exceptions applicable to Ms. Wilson’s

out-of-court statements.

    (a) D.R.E. 803(2) – Excited Utterance

       An excited utterance qualifies as an exception to the hearsay rule because it

is a spontaneous statement made in reaction to an exciting event rather than the

result of a reflective thought.6 The statement is therefore considered reliable




4
  D.R.E. 801(a), (c).
5
  D.R.E. 802, 803, 804; Culp v. State, 766 A,2d 486, 489 (Del. 2001).
6
  Culp, 766 A.2d at 490-91.
                                               3
because the declarant is not in a position to fabricate the statement.7 To determine

if a statement qualifies as an excited utterance under D.R.E. 803(2), the Delaware

Supreme Court explained that:

       a statement must satisfy the following three requirements: ‘(1) the
       excitement of the declarant must have been precipitated by an event;
       (2) the statement being offered as evidence must have been made
       during the time period while the excitement of the event was
       continuing; and (3) the statement must be related to the startling
       event.’8

The Court further explained that the declarant must have personally perceived the

startling event for a statement to be admissible under this exception. 9

       In the case before the Court, the State intends to present evidence that

Defendant threatened Ms. Wilson in October 2009 and that Ms. Wilson was

frightened. According to the State, at or about the time of Defendant’s threats, Ms.

Wilson wrote a note to Defendant describing his threats and then contacted her son

and expressed her fear. The Court finds that Ms. Wilson personally perceived the

startling event and that Ms. Wilson’s statements concerning the October 2009

incident are inherently reliable as excited utterances. Accordingly, Ms. Wilson’s

hand-written letter, statements to her son, and statements to the police are

admissible in consideration of D.R.E. 803(2) and Defendant’s objections are

OVERRULED.

7
  Id. at 490.
8
  Id. at 489-90 (citing Gannon v. State, 704 A.2d 272, 274 (Del. 1998)).
9
  Id. at 490.
                                                4
     (b) D.R.E. 803(3) – Then-Existing State of Mind

       Statements offered to show the “present intention or an existing state of

mind the deceased,” qualify as an exception to the hearsay rule. 10 According to the

Delaware Supreme Court, there are five requirements to establish the necessary

foundation to admit statements reflective of a declarant’s then-existing state of

mind. 11 The five factors required for the admissibility of such statements are: (1)

the statements must be relevant and material; (2) the statements must relate to the

declarant’s existing state of mind at the time the statements were made; (3) the

statements must have been made in a natural manner; (4) the statements must have

been made under circumstances dispelling suspicion; and (5) the statements must

not contain suggestion of sinister motives.12

       In this case, the out-of-court statements made by Ms. Wilson satisfy the five

factors for admissibility as a hearsay exception. The statements at issue include a

hand-written letter by Ms. Wilson to Defendant while Ms. Wilson was in a state of

distress and fear, wherein she explained her feelings, described Defendant’s

actions, and explained why she was ending her relationship with Defendant. While

experiencing that same distress and fear, Ms. Wilson called and spoke to her

son. Accordingly, the Court finds the first four factors are satisfied. Moreover,


10
   D.R.E. 803(3); Derrickson v. State, 321 A.2d 497, 503 (Del. 1974).
11
   Derrickson, 321 A.2d at 503.
12
   Id.
                                               5
there has been no suggestion by Defendant that Ms. Wilson had sinister motives to

make such statements and thus, the fifth factor is satisfied. The Court finds that

Ms. Wilsons’s statements in the hand-written letter and as expressed verbally to

her son and the police are inherently reliable as describing her then-existing state

of mind. Accordingly, Ms. Wilson’s statements are admissible in consideration of

D.R.E. 803(3) and Defendant’s objections are OVERRULED.

   (c) D.R.E. 807 – Circumstantial Guarantees of Trustworthiness

      Moreover, even if Ms. Wilson’s out-of-court statements were not admissible

as excited utterances or as statements reflective of her then-existing state of mind,

the Court is satisfied that Ms. Wilson’s statements meet the test for circumstantial

guarantees of trustworthiness. Specifically, consistent with D.R.E. 807: (1) Ms.

Wilson’s statements are offered as evidence of a material fact; (2) the statements

are more probative on the point for which the statements are offered than any other

evidence which the State can procure through reasonable efforts because Ms.

Wilson is unavailable as a witness; and (3) the general purposes of the rules of

evidence and the interests of justice will best be served by admission of the

statements into evidence.    The Court is “satisfied that there is a guaranty of

trustworthiness associated with the proffered hearsay statement that is equivalent

to the guaranties of trustworthiness recognized and implicit in the other hearsay




                                         6
exceptions.”13         Accordingly, Defendant’s objections are OVERRULED in

consideration of D.R.E. 807.

          NOW, THEREFORE, on this 4th day of March, 2015, Defendant’s

Motion in Limine is hereby DENIED.

          IT IS SO ORDERED.
                                               Andrea L. Rocanelli
                                               _____________________________________________
                                               The Honorable Andrea L. Rocanelli




13
     Purnell v. State, 979 A.2d 1102, 1107 (Del. 2009) (citations omitted).
                                                  7
