Opinion
I.D. No. 0909014598.
Submitted: February 9, 2010.
Decided: February 25, 2010.
On the State's Motion in Limine to Preclude Cross-Examination of a Police Officer Regarding Alleged Acts of Dishonesty. GRANTED.
Annemarie Hayes, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph M. Leager, Jr., Esquire, Assistant Public Defender, Office of the Public Defender, Wilmington, Delaware, Attorney for Defendant.
ORDER
Dear Counsel:
INTRODUCTION
Defendant, Kwai Tilghman, is charged with Possession with Intent to Deliver Cocaine, Use of a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia. Detective Robert Fox, a Wilmington Police officer, was involved in this case and participated in the execution of the search warrant, collection of evidence, and the eventual arrest of Defendant. Detective Fox is expected to testify on behalf of the State at trial.
Mot. in Lim. at ¶ 1.
Id. at ¶ 3.
At issue is whether Defendant's counsel may cross-examine Detective Fox pursuant to Delaware Rule of Evidence 608(b) about previous allegations made in January 2009 to the Wilmington Police Department that (1) Detective Fox had testified untruthfully at a preliminary hearing in an unrelated case, and (2) that Detective Fox was untruthful in filling out the police report in that case. Detective Fox was ultimately exonerated by the Complaint Hearing Board of the Wilmington Police Department of these allegations, but the State's motion in limine seeks clarification from this Court as to whether the allegations of dishonesty are the type of "prior bad acts" contemplated by D.R.E. 608(b), and urges this Court to hold that such cross-examination is precluded.
State v. Watson, 846 A.2d 249, 254 (Del. Super. 2002).
After conducting an in camera inspection of Detective Fox's personnel file, this Court has determined that Defendant's counsel will not be permitted to cross-examine Detective Fox on these alleged "prior bad acts" pursuant to D.R.E. 608(b) because this Court gives great weight to the fact that Detective Fox was exonerated after a full hearing of the dishonesty allegations, thus making this "evidence" substantially more prejudicial than probative. Thus, for the reasons stated below, the State's motion in limine is GRANTED.
D.R.E. 403.
FACTS and PROCEDURAL HISTORY
Defendant is currently charged with several drug related felonies and is scheduled for trial on May 1, 2010. Detective Fox is expected to testify against Defendant at that trial. In connection with a different 2008 drug case not involving Defendant, an administrative complaint of dishonesty was made against Detective Fox with the Wilmington Police Department. The complaint was filed based on (1) alleged untruthful testimony that Detective Fox had given during a preliminary hearing in August 2008, and (2) a police report written by Detective Fox out of this unrelated case that was allegedly untruthful. After a thorough investigation culminating in a hearing conducted by the police department's Complaint Hearing Board, a decision was issued by the Board exonerating Detective Fox in March 2009 of the allegations of dishonesty.Despite Detective Fox's exoneration of the dishonesty charges, the State, out of an apparent abundance of caution, has filed a motion in limine in this case asking this Court to determine whether Defendant may (1) potentially cross-examine Detective Fox about the dishonesty allegations, and (2) obtain discovery from the Wilmington Police Department related to this allegation even though Detective Fox was ultimately exonerated. The State requested that this Court conduct an in camera inspection of Detective Fox's personnel file to determine whether any of the materials contained in Detective Fox's personnel file are discoverable by Defendant and determine whether the records should be admissible at trial and/or whether Detective Fox may be cross-examined about the allegations.
The Court notes that the State has acted commendably in its sua sponte bringing this matter to the attention of the Court and defense counsel.
CONTENTIONS OF THE PARTIES
The State argues that this Court should not permit Defendant to question Detective Fox about the dishonesty complaints because the complaints were ultimately found to be "unfounded." Thus, the State requests that this Court issue a ruling disallowing cross-examination of Detective Fox or discovery by Defendant of his police personnel file related to the unfounded dishonesty complaints.In response, Defendant argues that cross-examination of Detective Fox on the alleged dishonesty charges should be permitted. Defendant asserts that Detective Fox "is the only witness to defendant's alleged statements implicating him in the sale/delivery of drugs. Thus, the testimony is crucial." Defendant further asserts that cross-examination into Detective Fox's alleged dishonesty goes to the "bias and credibility" of the witness and cross-examination on this subject is not "unduly prejudicial." Thus, Defendant argues, cross-examination of Detective Fox is warranted pursuant to D.R.E. 608(b).
Resp. to Mot. in Lim. at 2.
Id.
Id.
DISCUSSION
Both parties agreed that an in camera inspection of Detective Fox's personnel file is proper pursuant to Snowden v. State, and the Court has conducted such an inspection of the records. The issue is whether Defendant may potentially cross-examine Detective Fox pursuant to D.R.E. 608(b) about two related dishonesty allegations, allegations for which Detective Fox was ultimately exonerated.
672 A.2d 1017 (Del. 1996) (holding that a trial court should conduct an in camera inspection of police records when a defendant advances "`some factual predicate which makes it reasonably likely that the file will bear [relevant evidence] and that the quest for its contents is not merely a desperate grasping at a straw.'").
Although Defendant contends that the dishonesty complaint against Detective Fox goes to "bias," the dishonesty complaint made against Detective Fox does not appear to go to "bias" because a previous allegation made by a different defendant would not appear to prejudice the officer in any way against the current defendant. The dishonesty complaint more appropriately goes toward the "credibility" of Detective Fox because it involves his ability to tell the truth. Thus, D.R.E. 608(b) is the appropriate rule of evidence to apply.
D.R.E. 608(b) states in pertinent part:
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
D.R.E. 608(b). This rule closely mirrors F.R.E. 608(b) with only minor differences.
Character evidence can be an important tool for impeachment of witnesses.
[C]redibility is often the crucial issue in a case. In such cases, character evidence, despite its flaws, `may still serve a purpose in calling to the jury's attention what might be an otherwise unknown deficiency of the witness and thus give the jury a more adequate basis for judging his testimony.'
Weinstein's Federal Evidence § 608.02[1] (2009).
Despite the potential usefulness of character evidence for impeachment, the use of such evidence at trial is not without limit. Thus, D.R.E. 608(b) gives the trial court discretion as to whether to permit cross-examination on prior instances of conduct of a witness if related to untruthfulness.
See Harper v. State, 970 A.2d 199, 201 (Del. 2009) ("We review a trial court's decision to admit impeachment evidence for abuse of discretion.").
The Delaware Supreme Court has stated that:
Side-excursions into the witness's past, usually unrelated to the substantive issues being tried, create a real danger of confusing the issues and prolonging the trial." "Thus, the limitation created by Rule 608(b) is designed to avoid "mini-trials" into the "bad acts" of a witness. . . .
Weinstein's Federal Evidence § 608.02[2] (2009).
Weber v. State, 457 A.2d 674, 680 (Del. 1983).
Delaware cases have recognized the careful balancing necessary to determine whether impeachment pursuant to D.R.E. 608(b) is allowed. Thus, the Delaware Supreme Court in Harper v. State held that a trial court should apply four factors before deciding whether to admit character evidence pursuant to D.R.E. 608(b). These factors are: "(1) whether the testimony of the witness being impeached is crucial; (2) the logical relevance of the specific impeachment evidence to the question at bar; (3) the danger of unfair prejudice, confusion of the issues and undue delay; and (4) whether the evidence is cumulative."
Harper, 970 A.2d at 201 (citing Snowden, 672 A.2d at 1025 and Weber, 457 A.2d at 681) (notably, Snowden phrased factor two as "the logical relevance of the specific impeachment evidence to the question of bias[.]" This Court believes the statement of the factors in Harper is more pertinent because the question at issue in this case involves credibility and not bias).
After an in camera inspection of Detective Fox's personnel file and consideration of the factors set forth in Harper, this Court holds that application of the Harper factors weighs in favor of excluding evidence at Defendant's trial of the previous allegations of dishonesty against Detective Fox.
The first factor weighs in favor of Defendant. As Defendant points out, "[h]ere, Officer Fox is the only witness to defendant's alleged statements implicating him in the sale/delivery of drugs." The jury will be asked to determine the credibility of Detective Fox. Allowing some or most of the evidence concerning the dishonesty complaint against Detective Fox might allow Defendant a method of impeachment that could, to some degree, impeach Detective Fox's "crucial testimony."
Resp. to Mot. in Lim. at 2.
The second factor weighs in favor of the State. There appears little "logical relevance of the specific impeachment evidence to the question [of credibility]", especially since Detective Fox was ultimately exonerated of the dishonesty complaint. Although Weinstein's Federal Evidence states that "a person who possesses certain character traits [such as dishonesty] is more prone to testify untruthfully than a person who does not possess those character traits[,]" here, there is no showing from the personnel file that Detective Fox possesses the character trait of dishonesty. As stated, the two allegations against Detective Fox were determined to be unfounded by the Complaint Hearing Board of the Wilmington Police Department, and Detective Fox was never disciplined in connection with these allegations.
Harper, 970 A.2d at 201.
Weinstein's Federal Evidence § 608.02[1] (2009).
In Garden v. Sutton, a motor vehicle negligence action involving the potential cross-examination of a former police officer who was fired for dishonesty allegations and other misdemeanor offenses, the Delaware Supreme Court held that "this evidence bears logical relevance . . . because [the witness] was a former police officer . . . Since [the witness] was no longer a police officer at the time of trial and had not left the police force of his own volition, the jury was entitled to know the circumstances of his resignation. . . ."
Garden v. Sutton, 683 A.2d 1041, 1044 (Del. 1995); see also Snowden, 672 A.2d at 1025 (noting that cross-examination of an officer is potentially appropriate when the officer had been terminated).
However, and unlike the defendant police officer in Garden, Detective Fox is still a member of the Wilmington Police Department and was never disciplined for this incident. The complaints against him after a thorough investigation and hearing were determined to be unfounded, and it is a stretch to conclude that an unfounded dishonesty complaint against an officer makes that officer more or less credible. Therefore, this factor weighs in favor of the State.
Factor three also weighs in favor of the State. There is a great risk of "unfair prejudice, confusion of issues, and undue delay[]" from a mere allegation of misconduct. Although Garden found no unfair prejudice from introduction of dishonesty allegations, this case is distinguishable from Garden because Detective Fox was exonerated of any wrongdoing.
Harper, 970 A.2d at 201.
Garden, 683 A.2d at 1044.
The fact that Detective Fox was administratively exonerated of the dishonesty allegations weighs greatly in favor of exclusion. Thus, in United States v. Johnson, a case involving whether a defendant could potentially cross-examine a police officer about an alleged theft from a drug dealer, the Third Circuit Court of Appeals stated that "[e]ven if [evidence] were admissible under Rule 608(b) . . . it would not be admissible under Rule 403 because its probative value would be substantially outweighed by the danger of unfair prejudice due to the fact that allegations of the Officers' theft have never been substantiated."
United States v. Johnson, 2006 WL 2641730, at * 9 (3d Cir. 2006).
Factor four weighs in favor of Defendant. The evidence is not cumulative because the evidence is a means by which potentially to attack Officer Fox's credibility and no other negative character evidence has been proffered. Thus, the evidence is not cumulative.
In State v. Watson, this Court also discussed a list of factors related to D.R.E. 404(b) because "[t]hese same factors may also offer some guidance when the Court conducts the Rule 403 balancing test in the context of Rule 608(b)." 846 A.2d 249, 254 (Del. Super. 2002). Harper did not address these factors, and this Court has also not addressed any of the 404(b) factors mentioned in Watson because, unlike Watson, the witness here is not a criminal defendant.
After reviewing all the factors, this Court has determined that the factors involving the relevance of the evidence (factors two and three) must be given more weight than the other two factors because relevance of any evidence is a necessary prerequisite to admissibility. Here, the evidence should be excluded because, although possibly relevant, the probative value of that evidence is substantially outweighed by undue prejudice because Detective Fox was exonerated of any allegations involving dishonesty.
D.R.E. 402 ("All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.").
D.R.E. 403; United States v. Johnson, 2006 WL 2641730 (3d Cir. 2006).
The Court is imbued with much discretion in determining whether evidence is relevant. The Court finds highly significant the fact that Detective Fox was ultimately exonerated of any dishonesty allegation after the Complaint Hearing Board met for many hours and reviewed a great deal of evidence. Pursuant to D.R.E. 608(b), Defendant will not be allowed to use this extrinsic evidence to impeach Detective Fox, thereby properly avoiding a potential "mini-trial" involving the credibility of Detective Fox.
Thus, for all the reasons discussed, this Court will not permit Defendant to cross-examine Detective Fox about the alleged dishonesty complaints because it has determined that the probative value of the previous allegations of dishonesty for which Detective Fox was exonerated is substantially outweighed by concerns of undue prejudice. No discovery of Detective Fox's personnel file will be permitted. The State's motion in limine is GRANTED.
Although Defendant has not directly argued the applicability of the Confrontation Clause of the Sixth Amendment to this motion in limine, Snowden discussed the Confrontation Clause at length. This Court does not believe that the Confrontation Clause is applicable because "the right of cross-examination is not without limits." Snowden, 672 A.2d at 1024. The Court holds that application of the Harper factors eliminates any need to separately address a potential Confrontation Clause argument because the application of these factors is meant to impose a reasonable limit on potential cross-examination.
This Court, having deferred to the administrative process before the Complaint Hearing Board, makes no independent judgment as to the truthfulness of Detective Fox's testimony at the preliminary hearing or in his subsequent police report.