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Dover, DE 19901
Telephone (302)739-5333

February 8, 2016

Christina Kontis, Esq. Joseph Hurley, Esq.
Eric Zubrow, Esq. 1215 King Street
Department of Justice Wilmington, DE 19801
820 North French Street

State Building - 7“‘ Floor
Wiltnington, DE 198()1

RE: State v. William L. Curry, 111
1D#1502004127

Dear Counsel:

The State charged William Curry ("Defendant") with Strangulation, Assault in
the Third Degree, two counts of Endangering the Welfare of a Child, Resisting Arrest,
and a Child Restraint violation. He moves to sever the resisting arrest charge from the
domestic violence counts in the indictment. For the reasons below, the Defendant’s
Motion for Severance is DENIED. Furthermore, for the reasons describe below, the
risk of unfair prejudice substantially outweighs the probative value of certain proffered
evidence. Accordingly, references to Defendant’ s self-identified status as an American

National and other like claimed statuses are barred pursuant to Delaware Rule of
Evidence 403.

ARGUMENTS OF THE PARTIES

Defendant first argues misjoinder at the outset because the two events leading
to the indictment were wholly separate and not intertwined. Accordingly, the
Defendant asserts the charges do not meet the joinder requirements of Superior Court
Criminal Rule 8.

Defendant further argues, that if the joinder had a legal basis, the counts should
be severed because of the danger of unfair prejudice. Namely, Defendant argues that
if the charges alleging offenses at two separate locations are tried together, evidence
would be presented for one that would unfairly prejudice Defendant regarding the
other. In this regard, he emphasizes evidence that: he is a "sovereign citizen"l; he
does not recognize the authority of the United States; his wife claimed to the police
that he had a gun and was fleeing to a residence with " gun nuts"; and the members of
the residence at the location of his arrest are members of the Michigan Militia.
Defendant asserts that some of this evidence may be admissible regarding the resisting
arrest charge (occurring at one location) but would unfairly prejudice him regarding
the domestic violence charges (occurring at another location).

The State opposes Defendant’ s motion to sever on the basis of judicial economy
and claims that the conduct is intertwined. The State argues that Superior Court
Criminal Rule 8 is designed to promote judicial economy provided it does not infringe
on a defendant’s rights. The State emphasizes that at the second location, where the
resisting arrest allegedly occurred, Defendant made statements amounting to
admissions to a 91 l dispatcher describing the events surrounding the domestic violence
charges. Finally, the State argues that the charges were properly joined and that
Defendant has not established substantial prejudice necessary to sever the charges.

STANDARD OF REVIEW

Superior Court Criminal Rule 8(a) provides that "[t]wo or more offenses may be
charged in the same indictment or information in a separate count for each offense if
the offenses charged are of the same or similar character or are based on the same act
or transaction or on two or more acts or transactions connected together or constituting

parts of a common scheme or plan."z Furthermore, pursuant to Superior Court Criminal
Rule l4,

[i]f it appears that a defendant or the state is prejudiced
by a joinder of offenses . . . in an indictment or
information or by such joinder for trial together, the court
may order an election or separate trials of counts . . . or

l At the motion and in written submissions, the Defendant stated that he was a "Sovereign
Citizen." The Defendant’s statements in the 91 l recordings reviewed by the Court indicate he
identifies himself as an American National and not as a Sovereign Citizen.

2 Del. Super. Ct. Crim. R. 8(a).

provide whatever other relief justice requires.’

The decision whether to grant or deny a motion for severance is a matter within
the discretion of the trial court." The defendant has the burden of establishing
substantial prejudice caused by the joinder.5 Mere hypothetical prejudice is not
sufficient.6 Prejudice can be found when: "(l) the jury may cumulate the evidence of
the various crimes charged and find guilt when, if considered separately, it would not
so find; (2) the jury may use the evidence of one of the crimes to infer a general
criminal disposition of the defendant in order to find guilt of the other crime or crimes;
and (3) the defendant may be subject to embarrassment or confusion in presenting
different and separate defenses to different charges." 7 In this regard, the interest of
judicial economy outweighs the defendant’s interests where the defendant makes
unsubstantiated claims of substantial prejudices

DISCUSSION

The Court has reviewed and considered the filings of both parties, the evidence
proffered at the motion hearing, and listened to three 9ll recordings provided by the
State. The asserted prejudice does not warrant severance. Namely, the events leading
to the charges of domestic violence and the resisting arrest are close in temporal
proximity. The first 9ll call by Defendant’s wife, at the residence of 928 Lovering
Avenue, was placed at 4202 AM. The second 9ll recording made by Defendant, after
he reached the residence at 100 Granite Road and had police contact at that location,
was placed at 4:l5 a.m. These two calls evidence a short separation of time between
the first incident resulting in the domestic abuse charges, and the second incident
involving the alleged resisting of arrest.

Defendant argues that these charges are wholly separate and not intertwined. As
recognized in Caldwell v. State, however, "although two sets of charges are not
necessarily inextricably intertwined because each set of charges could theoretically be
proven without reference to the other, they [can] nevertheless [be] a part of the same

3 Super. Ct. Crirn. R. l4.

4 Bates v. Staz‘e, 386 A.2d ll39, ll4l (Del. 1978); see also Super. Ct. Crim. R. l4.
5 Ia'.

6 Id. at ll42.

7 State v. Taylor, 2015 WL 7753046, at *7 (Del. Super. Nov. 23, 2015).

8 State v. Flagg, 739 A.2d 797, 799 (Del. Super. 1999).

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common scheme or course of conduct within the meaning of Criminal Rule 8(a)."9 The
Court finds that the charges are part of the same common scheme and course of
conduct. As a1leged, Defendant fled his home at 928 Lovering Avenue after an
altercation with his wife, and his destination was 100 Granite Road. The parties do not
dispute that the Defendant’ s change of location resulted from the conflict. Furthermore,
a child restraint violation arising from that movement between the two locations is
charged in the indictment. Resisting arrest charges are customarily joined with
predicate offenses. Here, the basis for the arrest he allegedly resisted was the domestic
violence at the prior location. The claims are related and joinder was proper at the
outset pursuant to Superior Court Crirninal Rule 8.

As to the question of prejudice and severance, the isolated references to
Defendant being an American National on the 91 1 tapes are a small portion of the taped
conversations. The Defendant’ s statements on the tapes include his insistence that the
police produce a warrant and that a different police agency (New Castle County) arrest
him. While he apparently dropped papers in the driveway indicating his claimed status
as an American National and made isolated references to the same, his stated primary
reason for avoiding police contact was (l) the lack of merit of the charges, (2) the lack
of a warrant, and (3) fear for his safety. Any arguable prejudice can be mitigated by
a charge to the jury, instructing it to evaluate each charge individually as a separate
and distinct charge. The Supreme Court of Delaware has held in this context that such
an instruction to the jury effectively mitigates potential prejudice. ‘° For this reason, the
Court’ s interest in judicial economy in trying these charges together outweighs the risk
of unfair prej udice.

The Defendant’s primary argument regarding the prejudice of this evidence
should also be considered in a DRE 403 analysis. Superior Court Crirninal Rule 14
includes provision for providing "whatever other relief justice requires" as an
alternative to severance. In this case, pursuant to DRE 403, the Court must determine
if the evidentiary value of the disputed evidence is outweighed by potentially unfair
prejudice to the defendant. "

The State argues that evidence from the victim’s and the Defendant’ s 911 calls
about Defendant’ s status, and evidence that the Defendant dropped documentation
regarding his status and oath as an "American National", is relevant to the Defendant’ s
state of rnind for all charges. In a written submission after the hearing, Defendant also

9 Caldwell v. State, 780 A.2d 1037, 1055 (Del. 2001),
10 Monroe v. State, 28 A.3d 418, 428 (Del. 2011).

11 Massey v. State, 953 A.2d 210, 215 (Del. 2008)

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seeks to adrnit evidence of this status as a defense to only the resisting arrest charge.‘z
As the State correctly argues, there is some probative value to this evidence regarding
the Defendant’s state of mind (intent) as to resisting arrest. However, its probative
value is substantially outweighed by its unfair prej udice. After reviewing the three 91 l
recordings, this Court finds it appropriate to bar introduction of (l) any evidence or
reference to Defendant’ s believed status as an "American National", unless first raised
by the Defendant. Furthermore, pursuant to DRE 403, any statements (2) in the three
911 calls referencing militia membership, and (3) documents alleging status as an

individual exempt from state or federal law, are also inadmissible, unless first raised by
the Defendant.

As a final matter, Defendant has also requested a continuance of the trial in the
event the charges are not severed. However, Defendant provided no justification for

that request in his written submission. Accordingly, the request for continuance is
DENIED.

CONCLUSION

In conclusion, this Court finds that the charges were properly joined. The
Court also finds that interests of judicial economy outweigh the risk of unfair
prejudice caused by proceeding with the charges as indicted. Defendant’s motion to
sever is therefore DENIED. Nevertheless, the Court recognizes that unfair
prejudice could result from references to Defendant being an "American National",
as well as from certain statements by the Defendant and the alleged victim. The
Court finds that this unfair prejudice substantially outweighs the probative value of
such evidence. Any reference or evidence regarding Defendant’s self-identification
as an "American National" or evidence regarding militia membership are barred
from the State’s case-in-chief pursuant to DRE 403. If such evidence is raised by
the Defendant, and is not objected to by the State based upon relevance, the State
must first raise any intention to introduce such evidence outside the presence of the
jury. The Court can then evaluate to what extent a door has been opened.

IT IS SO ORDERED.

Very truly yours,
/s/ Jeffrey J Clark

'Judge

12 For this reason, Defendant argues that barring such evidence pursuant to DRE403 is not
sufficient to mitigate unfair prejudice. Defendant indicates he will seek to inject this self-identified
status into the case as a defense regarding the resisting arrest charge.

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JJC:jb

sc: Sharon Agnew, Prothonotary
Susan Hearn, Chief Deputy Pr0th0n0tary
Carol Taylor, Judicial Case
File

