SUPERIOR COURT
OF THE
STATE OF DELAWARE

ABIGAIL M. LEGROW LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KING STREET, SUlTE 10400
WILMINGTON, DELAWARE 19801
TELEPHONE (302) 255-0669

Submitted: June 20, 2017
Decided: June 27, 2017

David P. Cline, Esq. Michael A. Pedicone, Esq.
David P. Cline, P.A. Heckler & Frabizzio

1404 N. King Street 800 Delaware Avenue, Suite 200
P.O. BoX 33 P. O. BoX 128

Wilmington, DE 19899 Wilmington, DE 19899

RE: Arthur Fuggett, et al. v. Kristen Marie Aronowicz
C.A. No. N11C-11-106 AML

Dear Counsel:

Pending before me are two motions in limine regarding the admissibility for
impeachment purposes of the plaintiff’ s past criminal convictions The parties
sought a ruling on these motions as promptly as possible, although trial has been
postponed until June 2018.l The motions present a singular issue: Whether the
probative value of the past convictions, supported by specific facts and
circumstances, substantially outweighs the prejudicial effect of the convictions’

admission into evidence.

 

l A third motion in limine, regarding the admissibility of the plaintiffs receipt of unemployment
benefits, Was filed on April 4, 2017. The parties have not sought a ruling on this motion. As is
this Court’s practice, that motion Will be addressed at the pre-trial conference

Fuggett, et al. v. Aronowicz
June 27, 2017
Page 2

This is an automobile accident case in which the parties’ disputes center on
causation and damages The plaintiff, Arthur Fuggett, was convicted of two crimes
that the defendant, Kristin Aronowicz, seeks to admit into evidence at trial to
impeach Fuggett under Delaware Rule of Evidence 609: (l) a conviction for Theft
by Deception in 1994 (the “Theft Conviction”); and (2) a conviction for Escape
After Conviction on November 20, 2007 (the “Escape Conviction”).

Fuggett was convicted of both crimes more than 10 years before the date of
trial, which is Scheduled to begin on June 11, 2018.2 The parties therefore agree
that, under Delaware Rule of Evidence 609 (“Rule 609”), evidence of the
convictions is not admissible “unless the [C]ourt determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect.”3

 

2 When the motion to admit the Escape Conviction into evidence first was filed, trial was
scheduled to begin within 10 years of the date of conviction. Upon agreement of the parties,
however, trial was rescheduled to June 2018, which is more than 10 years after the date of the
Escape Conviction. Under Delaware Rule of Evidence 609(b), “[e]vidence of a conviction is
not admissible if a period of more than 10 years has elapsed since the date of conviction or of the
release of the witness from the confinement imposed for that conviction, whichever is the later
date,” unless the balancing test is performed by the Court. If Fuggett was incarcerated for the
Escape Conviction on or after June 11, 2008, the conviction would not meet the lO-year test and
a different balancing test would apply. After the trial date was moved, l asked the parties to file
supplemental letters regarding the effect, if any, of the changed trial date on their arguments in
the Escape Conviction motion in limine. In their supplemental letters, the parties agreed that the
Escape Conviction is more than 10 years old and the balancing test required by Rule 609(b)
applies. In other words, Aronowicz has neither argued nor provided any record to support a
finding that Fuggett was confined for the Escape Conviction within 10 years of the June 2018
trial date. See D.I. 109. l therefore apply the Rule 609(b) balancing test.

3 Del. R. Evid. 609(b).

Fuggett et al. v. Aronowicz
June 27, 2017
Page 3

Aronowicz argues Fuggett’s credibility is “absolutely the most critical aspect
of his personal injury claim” because Fuggett’s alleged injuries and his medical
experts’ opinions largely rely on his subjective complaints4 Credibility, however,
is crucial in most trials, and subjective complaints are common in personal injury
actions. Rule 609 nonetheless presumes that convictions older than 10 years are
not admissible and requires the proponent of such evidence to provide “specific
facts and circumstances” supporting a conclusion that the probative value of such
evidence substantially outweighs the risk of prejudice.

Aronowicz has not offered any specific facts and circumstances about these
convictions. As to the Theft Conviction, Aronowicz described what she contends
are the facts underlying the 1994 conviction, but did not provide any record
citation or support for that factual description, or even a hint as to where that
description was obtained.5 Fuggett objected to this unsupported narrative of the
charged crime.6 As to the Escape Conviction, Aronowicz provided neither a
factual recitation nor record support for the events underlying that conviction. This

Court cannot perform the balancing test required by Rule 609(b) without such a

 

4 Def.’s Resp. to Pls.’s Mot. in Lim. Regarding Conviction for Theft by Deception, 1[ 6; see also
D.l 109 at 1.

5 Def.’s Resp. to Pls.’s Mot. in Lim. Regarding Conviction for Theft by Deception, 1[ 5.

6 See Suppl. Resp. to Def.’s Opp’n to Pls.’s First Mot. in Lim.

Fuggett, et al. v. Aronowicz
June 27, 2017
Page 4

record.7 Because Aronowicz has offered no specific facts and circumstances from
which this Court could determine that the probative value of the convictions
substantially outweighs the prejudicial effect of their admission into evidence, the
convictions are not admissible under Rule 609(b).

For the foregoing reasons, Fuggett’s Motion in Limine to Prohibit
Aronowicz from Referring to Arthur Fuggett’s Theft Conviction is GRANTED
and Aronowicz’s Motion in Limine to Admit Evidence of Fuggett’S Escape

Conviction is DENIED. IT IS SO ORDERED.

Very truly yours,

WM/

Abigail M. LeGrow, Judge

Original to Prothonotary

 

7 See Fisher v. Beckles, 2014 WL 703755 at *4 (Del. Super. Feb. 10, 2014).

