SUPERIOR COURT

OF THE

STATE OF DELAWARE

P AUL R. W ALLACE

J UDGE N EW C ASTLE C OUNTY C OURTHOUSE

500 N. K ING S TREET

, S UITE 10400

W ILMINGTON

, D ELAWARE 19801 (302) 255

- 0660

Date Decided : September 3, 2021

Date Issued : September 10

, 2021

Mr. Anthony A. Figliola, Jr., Esq. Mr. John W. Downs, Esquire

Greto Law Department of Justice

715 N. Tatnall Street Deputy Attorney General Wilmington, Delaware 19801 820 N. French Street, 7 th Floor Wilmington, Delaware 19801

RE: State of Delaware v. Anthony Dale

ID No. 1909010294

Dear Counsel:

This Letter Order memorializes the Court’s ruling made at the September 3,

2021 status conference with respect to Defendant Anthony Dale’s Motion to

Subpoena Records and Conduct an I n C amera Review

. Mr. Dale’s m otion is

granted, but pursua nt to Burns v. State and its progeny, is limited in scope to

safeguard the witness , Indi Islam’s, p rivacy interests in her confidential medical or

other treatment records

. 1 In balancing Mr. Dale’s Sixth Amendment confrontation

right with Ms. Islam’s privacy rights in her protected medical or other treatment

records, the permissible scope of production includes only th ose portions of the

records that : (1) discuss her memory, or lack thereof, of the crimes cent ral to this

case ; and (2) any diagnosis and/or subsequent treatment following her broken jaw

injury and any memory loss associated therewith

.

1 Burns v. State , 968 A.2d 1012 (Del. 2009) (en banc).State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 2 of 11

I. FACTUAL AND PROCEDURAL BACKGROUND

A. T HE P ARTIES

The Motion to Subpoena Records was originally filed by Mr. Dale ’s co

defendant, Maleke Brittingham. 2 Mr. Dale joined in this motion. 3 Mr. Brittingham

later entered into a plea agreement and is currently awaiting sentencing. 4 Mr. Dale

remains the sole active defendant in this case, and accordingly, remains the sole party

pursuing the production of documents set forth in the original Motion to Subpoena

Records.

Ms. Indi Islam is a co

- defendant in this matter who also entered into a plea

agreement with the State

. 5 She plead ed guilty to Attempted Murder in the Second

Degree, with an agreement to testify in the trial of her co

- defendants, M essrs. Dale

and Brittingham. 6 As such, Ms. Islam is a key State witness against Mr. Dale.

Mr. Dale seeks to obtain healthcare and other tr eatment records from certain

identified providers of healthcare o r related treatment services to Ms. Islam ; such

treatment occurring after the Printz Market shooting

. Those providers are : (1) State

of Delaware Department of Correction (DOC) ; (2) Christiana Care Health Services

(CCHS) ; (3) Psychotherapeutic Services/Madre House Transitional Housing; and

2 Mot. to Subpoena Records

, State v. Maleke Brittingham , ID No. 1909010295 (Del. Super. Ct. Feb. 13, 2021 ).

3 Letter to Join, State v. Anthony L. Da l e , ID No. 1909010294 (Del. Super. Ct. Apr. 27, 2020 ).

4 Plea Agreement and TIS Guilty Plea Form, State v. Maleke Brittingham , ID No. 1909010295 (Del. Super. Ct. June 25, 2020 ).

5 Mot . to Subpoena

, Appx. 2, Ex. E, Indi Islam Plea Agreement.

6 Id.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 3 of 11

(4) the YWCA Delaware Home

- Life Management Center.

B. T HE R ELEVANCE OF M S

. I SLAM ’ S M EDICAL AND T REATMENT R ECORDS

On June 7, 2013

, the Printz Market at 2715 Governor Printz Boulevard in

Wilmington was robbed by three men. 7 During the robbery, two men were shot

—

one of them, Anthony Berry, fatally

. 8 Soon thereafter, on June 19, 2013, Mr. Dale

was arrested by the Wilmington Police Department for firearm s charge s

. 9 When

questioned, Mr. Dale told police that his cousin, M a leke Brittingham, had borrowed

his firearm, thereby implicating him in the Printz Market shooting. 10 Police

subsequently searched both Mr. Brittingham ’s and Mr. Dale’s apartments , but no

evidence was found that could link either of them to the slaying of Anthony Berry. 11

After the fruitless searches

, the case went c old for about five years when, in May of

2018

, police had occasion to interview Ms. Islam. 12

Ms. Islam had numerous conversations with Wilmington police investigators

during the s ummer of 2018 that ultimately led to her admi tting her i nvolvement in

the 2013 Printz Market robbery. 13 During Ms. Islam’s several interviews with

7 Mot

. t o Subpoena

, p. 1.

8 Id

.

9 Id

.

10 Id

.

11 Id.

12 Id . at 1

- 2.

13 Id. at 2.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 4 of 11

investigators

—

the content of which Mr. Dale suggests are inconsistent in the

reporting of details and also evidence questionable periods of lucidity

— she

identified and described Mr. Dale’s and Mr. Brittingham’s involvement in the Printz

Market murder

. 14 Ms. Islam was charged for her own involvement in the robbery

and has pleaded guilty to Attempted Murder in the Second Degree, with an

agreement to testify in the trial of Messrs. Dale and Brittingham. 15 As a condition

of her plea, she is to complete a substance abuse evaluation and adhere to any

prescribed treatment plan

. 16

Ms. I slam’s piecemeal interviews spanned the course of a few months and

were conducted in numerous locations, including Baylor Women’s Correctional

Institution ( B WCI), the YWCA shelter, the police station, and the Madre House. 17

Prior to investigators’ first interview with Ms. Islam at B WCI , she had recently been

admitted to a C CHS h ospital for treatment of a broken jaw resulting from an alleged

assault. 18 While trying to provide investigators with details related to her broken

jaw, she h a d difficulty remembering the night, as she was dazed when she fell to the

ground. 19 She conveys that after being hit, she got dizzy, spun around

, fell face

14 Id. at 2

- 4.

15 Id. at 4.

16 Mot. to Subpoena

, Appx. 2, Ex. E, Indi Islam Plea Agreement.

17 Mot. to Subpoena, pp. 2

- 4.

18 Mot. to Subpoena

, Appx. 1 , Ex. A

, Indi Islam Timeline , p. 1.

19 Id. at Appx. 1

, Ex. C

, May 15, 20 18 Interview of Indi Islam

, p. 3

.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 5 of 11

down, and blacked out

. 20 Reportedly, h er ride to the hospital, her stay at the hospital

,

and subsequent discharge from the hospital are difficult for her to remember. 21

Likewise, Ms. Islam’s recitation of events surrounding the 2013 Printz Market

robbery follow in a similar pattern and at times appear contradictory. As such, the

reliability of her recollection of events ha s been called into question by Mr. Dale.

Though Ms. Islam’s jaw injury

— and any lingering effects thereafter

—
occurred five years after the Printz Market robbery , her ability to recall events prior

to the injury undoubtedly raises concerns about the reliability and consistency of her

statements to investigato rs. Thus, a limited inquiry into her health and treatment

records in camera is necessary to protect Mr. Dale’s Sixth Amendment right of

confrontation right and to ensure his ability to engage an effective cross

- examination

of this witness.

II. DISCUSSION

A. G UIDANCE UNDER B URNS AND W OOD COUNSELS WHEN AN IN CAMERA

REVIEW OF P RIVILEGED AND C ONFIDENTIAL R ECORDS IS APPROPRIAT E

.

When seeking production of records in which a third

- party has a privacy

interest

, a criminal defendant must make a “‘ plausible showing ’ that the information

he is seeking is relevant and material.” 22 Too, that d efendant must specifically

identify the types and kinds of records sought, as well as a compelling basis for the

request. 23 And, w hen articulating a compelling basis for the re quest

, he must satisfy

20 Id. at Appx. 2, Ex. D, June 11, 20 18 Interview of Indi Islam

, p. 28

.

21 Id . at 29

- 3 0

.

22 Burns , 968 A.2d at 1025.

23 Id.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 6 of 11

the Court that he is not just “ embarking on a fishing expedition into the witness’ s

medical or psychological history.” 24 Upon such a showing, the Court will issue a

subpoena for the records to be returned to the Court for an in camera review

, where

the Court will determine whether and which records are relevant and material to the

defendant’s case. 25 The process of an in camera inspection of a witness ’ s privileged

medical records enables the C ourt to engage in a balancing of protecting the

witnesses’ right to privacy and confidentiality and protecting the defendant’s

constitutional confrontation right. 26

Delaware Criminal Rule 17(c) is, in all relevant r espects, consistent with its

analog in th e Federal Rules of Criminal Procedure . And both are properly invoked

to seek evidence or documents that are admissible at trial

. 27 Rule 17 (c) provides for

the usual subpoena duces tecum or subpoena ad testificandum . It does not , however,

provide an additional means of broad discovery. 28 Accordingly, Rule 17(c) is the

vehicle that allows the C ourt , in a very narrow set of circumstances, to “direct that

books, papers, documents or objects designated in the subpoena be produced” in

camera for the C ourt’s inspection and review to determine if they are due to the

parties and their attorneys. 29

24 Id . at 1025

- 26.

25 State v. Wood , 2007 WL 441953 at *6 (Del. Super. Ct. Feb. 1, 2007)

.

26 Id.

27 Id. at * 2

- 3.

28 Id

. at *3.

29 Id. at *2.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 7 of 11

On this score

, the three

- prong framework articulated by this Court in State v.

Wood (echoing Burns ) governs when an i n c amera review is appropriate . That

requires a defendant to : (1) identify precisely the records he is seeking and to assert

a compelling basis for the request; (2) attempt to procure the consent of the

victim /witness for release of the records before resorting to Rule 17 or the C ourt ;

and

, (3) demonstrate with specificity that the information he is seeking is relevant

and material to his defense. 30

1. Dale has p recisely id entified the r ecords to be pr oduced and has

s tated a c ompelling b asis for his r equest.

In Wood , the C ourt found the first prong of the framework was not met

because the defendant made “no showing of precisely which records the defense is

seeking by the subpoena.” 31 B ecause Wood issu ed a broad blanket request for the

victims ’ records under Rule 17(c) he could not meet the precision requirement. 32

Conversely, in Burns

, our Supreme Court found the defendant did meet this

requirement because his request seeking “only the factual information contained in

[the] therapy records” was “sufficiently precise an d narrow.” 33 Burns also

established that his compelling justification for the records was to use them for

impeachment purposes. 34 There, “ [t] he crimes with which he was charged had

30 Id. at *5

- 6.

31 Id. at *7. The Court also discussed the timing of Wood’s request , which is of no moment

here

. Id.

32 Id.

33 Burns , 968 A.2d at 1026.

34 Id.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 8 of 11

occurred years before, there was no physical evidence, the victims had made

arguably inconsistent factual statements, and

. . . the case would turn largely on the

jury’s determination of credibility.” 35 Burns made a plausible showing that any prior

relevant factual inconsistencies by the witnesses could only be determined fr om an

in camera inspection of the witness es’ confidential medical records. 36

Here Mr. Dale has met the first Wood requirement

. He has specifically

requested Ms. Islam’s treatment records from C CHS , Madre House, the DOC, and

the YWCA. 37 But o n this point, the Court finds the only records permitted to be

produce d are those limited to Ms. Islam’s discussions of her memory, or lack thereof,

of the events in question, and of any diagnosis and/or subsequent treatment

following her broken jaw injury that suggest a resultant lack of memory or ability to

recall

. Second, Mr. Dale asserts the records are necessary for impeachment purposes

because they may “bring to light Islam’s tendency to abuse substances and have

memory issues, as well as any mental health issues that may affect her ability to be

a credible witness

. ” 38 A fair reading of the record thus far aligns this case more with

Burns th a n Wood : Mr. Dale’s charged crimes occurred years ago, Ms. Islam has

reportedly made numerous inconsistent factual statements, her testimony is critical

35 Id.

36 Id.

37 Mot. to Subpoena

, p. 11.

38 Id

.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 9 of 11

to the State’s case, and the case could turn largely on the jury’s determination of her

credibility.

2. Dale has first attempted to procure the victim’s consent for the release of records prior to seeking judicial intervention

.

T h e second requirement under Wood is clear and to the point

— either the

defendant did or didn’t seek and receive the victim’s consent for production of

records in which she may have a privacy inerest

. Here, Mr. Dale asserts he requested

the relevant materials from the State but never receive d them

. 39 Similarly, Mr. Dale

avers he also requested the records from Ms. Islam’s counsel directly , who at the

time of the motion, responded but ha s not provided the requested records. 40 Given

the circumstance, t he Court deems the se efforts sufficient under Wood

.

3. Dale has demonstrated with specificity the records sought are

relevant and material to his defense.

In Wood , the C ourt found the defendant did not meet the third prong of the

test because he failed to make a showing of what he expected the records to

establish. 41 There, the defendant was charged with eighteen counts of first

- de gree

rape and two counts of c ontinuous s exual a buse of a c hild

— both crimes involving

minor victims. 42 In his subpoenas, and pursuant to Del. Crim. R. 17(c), Wood

broadly sought any and all treatment and counseling records from two entities

39 Id.

40 Id.

41 Wood

, 2007 WL 441953 at *7.

42 Id. at *1.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 10 of 11

regarding his victims and their families with nothing more

. 43 There, the C ourt found

th e request too broad to establish what the defendant expected the records to provide

in assistance of his defense. 44

The Burns court held that a defendant’s burden to meet th e third requirement

compels a “‘plausible showing’ that the records sought are material and relevant.” 45

Such a showing need convince the Court “that the defendant is not embarking on a

‘fishing expedition’ into the witness’ medical or psychological history.” 46 Burns

made a plausible showing that the witnesses’ confidential records could contain

factual inconsistencies and were relevant and material because “ (i) the [victims] had

prepared detaile d notes of their alleged abuse and destroyed those notes after their

[Child Advocacy Center] in terviews, and (ii) the [victims] presumably had discussed

their interviews at length with their therapist.” 47

Here, Mr. Dale satisfies the third prong of th e B urns

- Wood test because he has

identified the relevant healthcare providers, the relevant records, and has

substantially demonstrated how each record may be material to his defense. In turn,

t he Court finds that any record indicating significant long

- term memory loss after

her mandible injury

, or any record that relates to Ms. Islam’s discussion of the crimes

central to this case , are no doubt relevant and material to Mr. Dale’s defense.

43 Id.

44 Id . at *7.

45 Burns , 968 A.2d at 1025

.

46 Id.

47 Id . at 1026.State of Delaware v. Anthony Dale

ID No. 1909010294 September 10 , 2021 Page 11 of 11

III. CONCLUSION

Because Mr. Dale made the requisite showings, production of certain of Ms.

Islam’s records for an in camera review is proper . And so, Mr. Dale’s Motion to

Subpoena Records and Conduct an In Camera Review is GRANTED

. As discussed

throughout, the limited portions of the records to be produced include only those

documents that pertain to Ms. Islam’s discussions of her memory , or lack thereof, of

the events in question, and any diagnosis and/or subsequent treatment follo wing her

broken jaw injury and any memory loss associated therewith

.

The records subpoenaed under Rule 17 will be return able to this Court for an

in camera inspection where by the Court will determine which records are relevant

and material to the defendant’s case and therefore subject to production under Burns

and Wood

. Mr. Dale’s counsel shall provide the dates of service or admission for

each treatment provider or entity no later than September 30, 2021. The subpoenas

shall issue immediately thereafter.

IT IS SO ORDERED.

_______________________ Paul R. Wallace, Judge

cc: All Counsel via File and Serve