SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEI)lNlLLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JUDGE 500 NoRTH KlNG STREET, SulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

January 19, 2018

Williarn H. Leonard, Esquire Jonathan Layton, Esquire
Department of Justice Layton & Associates, P.A.
Carvel State Office Building The Buckner Building

820 North French Street 1308 Delaware Avenue, Suite 8
Wilmington, DE 19801 Wilmington, DE 19806

Re: State ofDelaware v. F rank Verna
I.D. No. 1606010047

Dear Counsel:

This is the Court’s ruling on the State’s Motion in Limine to Admit 404(b)
Evidence Concerning Prescription Drug Usage (“Motion”) in the above-captioned
case. For the reasons stated below, the State’s Motion is GRANTED.

F actual and Procedural Background

Defendant Frank A. Verna (“Defendant”) is charged With two counts of
Robbery First Degree. On March 29, 2016, Defendant is alleged to have robbed the
Chestnut Hill Plaza Rite Aid Pharmacy in Newark, Delaware, stealing a full bottle
of Percocet/Oxycodone and a half bottle of Xanax pills. As part of the investigation
in to the robbery, detectives interviewed several Witnesses including Defendant’s
girlfriend Judith Turner (“Turner”), Defendant’s sister Lynn Verna (“Lynn”), and
Defendant’s eX-Wife Christina Verna (“Christina”). The State seeks to admit
testimonial evidence from these three Witnesses concerning their personal
knowledge of Defendant’s prescription drug usage and alleged misuse.

Broken down by each witness, the proffers made by the State are as such:

As to Lynn, the State seeks to present that Defendant lived with her for a six-
week period following the separation of Defendant and Christina in January 2015.
lt is expected that Lynn would testify to her personal knowledge of Defendant’s use
of the prescription medications Percocet and Xanax. The State seeks to admit
several incidents that Lynn observed during that time, including, to wit: Defendant’s
mood swings, prolonged use of the bathroom and a powdery residue left on the
bathroom counter, and frequent requests for saline solution.

As to Turner, the proffer begins with evidence that Turner dated Defendant
from July 2015 until October 2016. The State seeks to present Turner’s personal
knowledge of Defendant’s prescriptions for opiates, Xanax, and Adderall and
knowledge of Defendant’s doctor visits for those prescriptions lt is expected that
Turner would testify to several incidents that occurred during that time, and her
observations that included Defendant’s multiple instances of him passing out or
falling asleep, slurring of speech, and prolonged use of the bathroom with audible
snorting of presumably a powdered substance.

As to Christina, the State wishes to present evidence that she was married to
Defendant from 1999 until 2015. lt is expected that Christina would testify to her
personal knowledge of Defendant’s usage of prescribed opiates, Xanax, and
Adderall and Defendant’s frequent change in doctors. The State expects to present
evidence concerning several incidents that occurred at the end of Defendant and
Christina’s marriage, including, to wit: Christina finding straws with powdery
residue, Defendant’s prolonged use of the bathroom, Defendant’s frequent requests
for saline solution, and Defendant passing out.

To the extent the evidence is redundant or cumulative, the Court will consider
this issue separately at trial. For now, the issue is presented under 404(b).

Contentions of the Parties

The State and Defendants presented their arguments in writing and at a
hearing. The Court reserved decision on this matter and allowed for supplemental
briefing on this issue.

The State argues that the proffered testimony is 404(b) evidence for the proper
purpose of establishing motive or identity. The State argues that this testimony is
not substantially outweighed by the potential for prejudice and that any potential

2

prejudice can be properly addressed through a limiting instruction. Defendant
disagrees and states that the proposed testimony is not proper 404(b) evidence, since
it does not involve a “prior bad act” or crime.

Standard of Review

“Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. lt may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of mistake or accident.”l
“Thus, evidence relating to a party’s uncharged bad acts is not admissible to prove
propensity or ‘support a general inference of bad character.’ But the same evidence
may be admissible ‘when it has “independent logical relevance” and when its
probative value is not substantially outweighed by the danger of unfair prej udice.”’2

The State bears the burden of proving the admissibility of evidence generally
proscribed under D.R.E. 404(b).3 Under Delaware law, where the State seeks to
introduce evidence under D.R.E. 404(b), the six-factor Getz v. State4 test applies.5
The application of these factors to the purported D.R.E. 404(b) evidence is within
the discretion of the trial court and reviewed under an abuse of discretion standard6

Discussion

Defendant asserts that the evidence the State wishes to present does not
qualify as a “prior bad act” and therefore is not proper 404(b) evidence. By D.R.E.
404(b)’s plain text, however, the rule does not only apply to “bad acts,” but rather

 

‘ D.R.E. 404(b).

2 Morse v. State, 120 A.3d 1, 8 (Del. 2015) (footnotes omitted) (quoting Getz v. State, 538 A.2d
726, 730 (Del. 1988)).

3 See, e.g., Taylor v. State, 777 A.2d 759, 764 (Del. 2001).
4 538 A.2d 726 (Del. 1988).
5 See Morse, 120 A.3d at 8.

6 See ia'. at 9.

“[o]ther crimes, wrongs or acts.”7 D.R.E. 404(b) references all acts by its plain text,
While the “other act” can be a crime or wrong, it need not be unlawful or wrongful
to be admissible On at least two prior occasions, Delaware courts have performed

a 404(b) analysis on a neutral “other act.

3>8

The following factors are part of the Getz analysis:

1.

The evidence of other crimes must be material to an issue or ultimate fact
in dispute in the case. lf the State elects to present such evidence in its
case-in-chief it must demonstrate the existence, or reasonable anticipation,
of such a material issue.9

The evidence of other crimes must be introduced for a purpose sanctioned
by Rule 404(b) or any other purpose not inconsistent with the basic
prohibition against evidence of bad character or criminal disposition.'O
The other crimes must be proved by evidence which is “plain, clear and
conclusive.”ll

The other crimes must not be too remote in time from the charged
offense.12

The Court must balance the probative value of such evidence against its
unfairly prejudicial effect, as required by D.R.E. 403.13

Because such evidence is admitted for a limited purpose, the jury should
be instructed concerning the purpose for its admission as required by
D.R.E. 105.14

 

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

8 See Joynes v. State, 797 A.2d 673, 677 (Del. 2002) (determining that rap lyrics composed by
defendant were admissible as “other acts” evidence to show intent or state of mind); State v.
Tolson, 2005 WL 147918, at *1 (Del. Super. Ct. Jan. 3, 2005) (determining that rap lyrics
composed by defendant were not admissible as evidence of defendant’s state of mind or intent
because the lyrics did not contain specific enough references relating to charged crime).

9 Getz, 538 A.2d at 734.

|01a1

]' Id. (quoting Renzi v. State, 320 A.2d 711, 712 (Del. 1974)).

12 Id

13 101

'4 Getz, 538 A.2d at 734 (footnote omitted) (emphasis added)

4

Deshields v. State further elucidates the relevant factors for the Court to
consider when addressing the fifth Getz factor:

(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
proceedings15

The following is the analysis under the six-factor Getz v. State test:

First, the Court finds that the testimony is material to an issue or ultimate fact
in dispute. “Evidence is material if it tends, of itself or in connection with other
evidence, to influence the result reached by the jury.”16 The evidence is relevant
since Defendant is prescribed and allegedly misuses the very prescription
medications that were stolen during the robbery.

Second, the Court carefully examines the offer of proof and finds that the
testimony has been introduced for the proper 404(b) purposes of identity and
possible motive for committing the robbery.

Third, the Court finds that the proposed testimony is “plain, clear, and
conclusive.”l7 The testimony is personal knowledge from those very closely related
or familiar with the Defendant.18 The Court was not previously convinced by

 

'5 Ia'. at 506-07 (quoting Graham C. Lilly, An Introa’uction to the Law of Evia’ence § 5.15, at 177-
78 (3d ed. 1996)).

16 Lloyd v. State, 604 A.2d 418, 1991 WL 247737, at *2 (Del. Nov. 6, 1991) (TABLE).
17 Getz, 538 A.2d at 734 (quoting Renzi v. State, 320 A.2d 711, 712 (Del. 1974)).

'8 See Morse v. State, 120 A.3d 1, 10 (Del. 2015) (eyewitness testimony is normally sufficient to
satisfy the plain, clear, and conclusive standard under D.R.E. 404(b)).

Defendant’s argument that such testimony requires an expert. The State is not
seeking an opinion concerning a diagnosis of addiction, but rather eyewitness
testimony concerning Defendant’s use and potential misuse of certain prescribed
medications lt is up to the trier of fact to determine whether such evidence makes
it more or less likely that the Defendant was the individual who committed the crime
or gives the Defendant a motive for committing the charged crime.

Fourth, the evidence is not too temporally remote in time. Most of the
testimony concerns events that occurred during 2015 and 2016, in the year prior to
and leading up to the charged offense.

Fifth, the Court finds that this testimony is not unduly prejudicial under
D.R.E. 403 and Deshields. Under Deshields, this Court finds that (l) the evidence
is going to be disputed by the Defendant; (2) proof of the prior conduct is adequate_
these are eyewitnesses who will present consistent testimony; (3) the evidence is
probative of a possible motive and identity and there is a sufficient nexus between
the alleged misuse of prescription medications and a robbery of those medications;
(4) the State requires this evidence to show motive; (5) there is some less prejudicial
proof regarding identity, but not motive; (6) this evidence is potentially prejudicial,
but not unduly prejudicial; (7) the same medications are involved, showing
similarities; (8) a limiting instruction will be effective; and (9) all of these witnesses
were already expected to take the stand so as not to unnecessarily prolong the
proceedings.

Our Supreme Court has found that prior illegal drug use is not unduly
prejudicial under a 404(b) analysis.19 lf the probative value of illegal drug use is not
substantially outweighed by its potential for prejudice, then it stands to reason that
the use or alleged misuse of prescription medication is not unduly prejudicial. This
evidence also seems heavily probative and not unduly prejudicial because it has the
potential to cut both ways. The trier of fact may weigh the evidence and find it is
actually less likely that Defendant committed the offense of robbery because he had
a legal source for all his medications

Sixth, a jury instruction that specifies the limited purpose of the evidence
offered will satisfy Defendant’s concerns.

Under a Getz analysis, the State has met its burden and the evidence is

19 See Rul`z v. State, 820 A.2d 372, 2003 WL 1824850, at *4 (Del. Apr. 1, 2003) (TABLE).

admissible. The evidence has “independent logical relevance” and its probative
value is not substantially outweighed by the danger of unfair prejudice.20

Conclusion
For the foregoing reasons, the Court finds that the State has met its burden to
show the admissibility of evidence describing Defendant’s use and alleged misuse
of prescription medications under either D.R.E. 404(b) or D.R.E. 403. Therefore,
the State’s Motion is GRANTED.

IT IS SO ORDERED.

  
 

 

  

Vivian L. Mediffma
Judge

oc: Prothonotary
cc: Defendant
Office of lnvestigative Services

 

20 See Morse v. State, 120 A.3d 1, 8 (Del. 2015).

