Superior Court
of the

Stote of De|owore

Jon R. Jurden New Cost|e County Cour'thouse

President Judge 500 North King Street, Suite 10400
Wi|mington, De|owore 19801-3733
Te|ephone (302) 255-0665

August 17, 2017

Rebecca Song, Esq. Joseph W. Benson, Esq.
Department of Justice 1701 North Market Street
Carvel State Offlce Building P.O. Box 248

820 North French Street Wilmington, DE 19899

Wilmington, DE 19801
RE: State v. Charles Rilev, Case No. 1703005932

Dear Counsel:

The Court is in receipt of State’s Motion in Limine and Defendant’s Response.1 In its
Motion, the State requests that the Court permit the State to introduce evidence of Defendant’s
probationary status pursuant to Delaware Rule of Evidence (“D.R.E.”) 404(b) “for the limited
purpose of establishing proof of identity and intent or state of mind.”2 In Support of this request,
the State proffers that Defendant, while on Level II probation for Drug Dealing,3 was outside his
residence when Probation received a tip that Defendant was selling drugs from that residence.4
When Probation Offlcer Collins, accompanied by Detective Rosaio, responded to Defendant’s
residence based on the tip, Collins knocked and announced himself as “Probation” and observed
Defendant within his house through a window.5 Defendant did not come to the front door and
appeared to be hiding from the officers, only revealing himself once the officers entered the
house.6 An administrative search of the house revealed drugs, ammunition, and a firearm.7 As a
result of the foregoing, Defendant is charged by indictment with the following:

Drug Dealing Tier 4 Quantity of Cocaine;

Aggravated Possession Tier 5 Quantity of Cocaine;

Drug Dealing Tier 2 Quantity of Heroin;

Aggravated Possession Tier 2 Quantity of Heroin;

Drug Dealing Marijuana;

Possession of a Firearm During the Commission of a Felony;

 

1 D.I. 14, 20.

2 D.I. 14 at l.

3 CaSe NO. 1506009651.
4 D.I. l4 at 2_3.

5 Ia'. at 3.

6 Id.

7 Id.

Possession of a Firearm by a Person Prohibited (4 counts);
Possession of Ammunition by a Person Prohibited;
Receiving a Stolen Firearm;

Resisting Arrest; and

Possession of Drug Paraphernalia.8

The State argues that Defendant’s probationary status is relevant to show: how Detective Rosaio
and Officer Collins were able to identify Defendant; Defendant’s intent to resist arrest; and
Defendant’s “intent to conceal drugs and a . . . [handgun] to avoid new charges and a violation of
probation.”9

D.R.E. 404(b) prohibits the use of evidence of other crimes, wrongs, or acts “to prove the
character of a person in order to show action in conformity therewith.” Such evidence may be
admissible “for other purposes, Such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.”10 In Getz v. Sl‘az‘e,ll the Delaware
Supreme Court laid out six factors for the Court to consider for Rule 404(b) evidence.
Admissible Rule 404(b) evidence must be:

(1) material to an issue or ultimate fact in dispute;

(2) introduced for a purpose either explicitly sanctioned by Rule 404(b) or for a
purpose consistent with Rule 404(b)’s prohibition on the use of evidence of bad
acts to show bad character or action in conformity therewith;

(3) proved by evidence which is plain, clear and conclusive;

(4) not too remote in time;

(5) balanced against any unfair prejudicial effect, as required by D.R.E. 403; and
(6) if admitted, admitted subject to a D.R.E. 105 limiting instruction.12

In this case, Defendant’s status as a probationer is material to at least two issues or
ultimate facts in dispute--Defendant’s identity and intent on the charge of Resisting Arrest.
Pursuant to ll Del. C. § 1257(b), “[a] person is guilty of resisting arrest when the person
intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention
of the person or another person or intentionally flees from a peace officer who is effecting an
arrest or detention of the person” As a condition of probation, Defendant was required to permit
probation officers to enter his home.13 Thus, Defendant’s apparent attempt to hide from
Probation, as outlined in the State’s proffer, reflects much differently on Defendant’s actions

 

8 D.I. 14 a11_2;D.1.3.

9 D.I. 14 at 6.

111 D.R.E. 404(b).

11 538 A.2d 726 (Del. 1988).

12 ld. at 734 (qu<>cing Renzi v. sza¢e, 320 A.2d 711, 712 (Del. 1974)).
13 D.I. 19 11 2.

than if he were a person not under State supervision who avoided coming to the door to talk to
Probation or police officers.

In light of the foregoing, the Court must consider whether D.R.E. 403 requires the
exclusion of Defendant’s status as a probationer because the probative value is substantially
outweighed by the danger of unfair prejudice. In Deshields v. State, the Delaware Supreme
Court discussed a nine-factor analysis for D.R.E. 403 balancing in the context of D.R.E. 404(b)
evidence:

(1) the extent to which the point to be proved is disputed;

(2) the adequacy of proof of the prior conduct;

(3) the probative force of the evidence;

(4) the proponent’s need for the evidence;

(5) the availability of less prejudicial proof;

(6) the inflammatory or prejudicial effect of the evidence;

(7) the similarity of the prior wrong to the charged offense;

(8) the effectiveness of limiting instructions; and

(9) the extent to which prior act evidence would prolong the proceedings.14

As previously stated, Defendant’s probationary status casts the actions he allegedly took to avoid
and hide from Probation in a much different light than if he were a non-probationer, and this
context is necessary for the jury to fairly determine whether the State has met its burden of proof
on the elements of Resisting Arrest. Due to the nature of the evidence-the fact of Defendant’s
status_there is no less prejudicial proof available. However, the inflammatory or prejudicial
effect of the evidence can and must be mitigated in this case. Therefore, evidence of
Defendant’s status as a probationer_in addition to being subject to a D.R.E. 105 limiting
instruction_shall not include any indication of the offense for which Defendant was on
probation. What probative value, if any, the fact that Defendant was previously convicted of
Drug Dealing has is substantially outweighed by the danger of unfair prejudice. Subject to the
foregoing limitations, the Court finds evidence of Defendant’s status as a probationer admissible
under D.R.E. 404(b) to show Defendant’s identity and intent on the charge of Resisting Arrest.

Although the State argues that Defendant’s status as a probationer is also admissible to
show his identity and intent with regard to the Drug Dealing and Aggravated Possession charges,
the Court finds this evidence excludable under D.R.E. 403.

 

14 706 A.2d 502, 506-07 (Del. 1998).

For the foregoing reasons, the State’s Motion in Limine is GRANTED in part and
DENIED in part.

IT IS SO ORDERED.

 

an R. J urderl
President Judge

JRJ:mls

cc: Prothonotary

