IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, ) ) V. ) ID No. 1401014417 ) FRANK DAVENPORT, ) Defendant. ) Submitted: February 10, 2015 Decided: March 4 , 2015 Upon Defendant’s Motion in Limine (as to statements by Holly Wilson in October 2009) DENIED This matter is before the Court on Defendant’s Motion in Limine. Defendant seeks to exclude certain evidence on the grounds that it is inadmissible hearsay. Th e underlying case concerns the death of Holly Wilson, which occurred on January 16, 2010. The State has charged Defendant Frank Davenport with Wilson’s murder. In connection with the murder trial scheduled for June 2015, the State seeks to admit evidence of an alleged incident involving Defendant and Ms. Wilson in October 2009. 1 Defendant’s pending Motion seeks to limit the State’s use of such evidence at the June 2015 murder trial. Specifically, Defendant moves to exclude: (i) a letter to Defendant al legedly hand

- written by Ms. Wilson in October 2009; (ii) statements by Ms. Wilson to her

1 Defendant is facing separate charges arising from the alleged October 2009 incident.2 son about the alleged October 2009 incident; and (iii) statements to police officers by Ms. Wilson and her son related to the alleged October 2009 incident. 2
Defendan t concedes that the evidence at issue is non

- testimonial. Moreover, Defendant emphasizes that his challenge does not implicate his Sixth Amendment right to confront witnesses. Rather, Defendant seeks a ruling in advance of trial to exclude the State’s ev idence as inadmissible hearsay. 3 The State opposes Defendant’s Motion on the grounds that the challenged evidence is admissible and should be presented for the jury’s consideration. This is the Court’s decision on Defendant’s Motion in Limine. 1. Statements by Ms. Wilson’s Son It is expected that Stephen McElwee, Ms. Wilson’s son, will testify as a witness at trial and will be subject to examination and/or cross

- examination by Defendant’s lawyers. Accordingly, to the extent that Defendant objects to testimony by police officers about what Mr. McElwee told police, those objections are OVERRULED. To the extent that the State intends to present Ms. Wilson’s statements to her son through the testimony of Mr. Elwee, then the admissibility of those stat ements by Ms. Wilson is governed by the analysis set forth below.

2 Defendant must specifically identify what evidence he seeks to exclude as hearsay. Defendant’s Motion in Limine, as submitted to the Court, challenges “ other hearsay t estimony, including, but not limited to testimony by police officers about what the decedent or the decedent’s son told police.” Def.’s Mot. in Limine 2

. To the extent that Defendant seeks a ruling before trial, the Court will limit its consideration to the statements enumerated above. 3 The Court will limit its ruling to the parameters of Defendant’s legal challenge.3 2. Ms. Wilson’s Statements Defendant challenges the admissibility of certain out

- court

- statements made by Ms. Wilson. Spe cifically, Defendant challenges: (i ) the hand

- written letter found by police in October 2009, which the State claims Ms. Wilson wrote at the time of the October 2009 incident; (ii) Ms. Wilson’s statements to her son, made at the time of the October 2009 incident; and (iii) Ms. Wilson’s stat ements to police about the October 2009 incident. Under the Delaware Rules of Evidence (“D.R.E.”), an out

- of

- court written or verbal statement by someone other than the declarant testifying offered in evidence to prove the truth of the matter asserted qu alifies as hearsay. 4 Hearsay is generally inadmissible unless the statement is privy to a recognized exception to the hearsay rule. 5 T here are three h earsay exceptions applicable to Ms. Wilson’s
out

- of

- court statements. (a) D.R.E. 803(2)

– Excited Utteran ce An excited utterance qualifies as an exception to the hearsay rule because it
is a spontaneous statement made in reaction to an exciting event rather than the result of a reflective thought. 6 The statement is therefore considered reliable

4 D.R.E. 801(a), (c). 5 D.R.E. 802, 803, 804; Culp v. State , 766 A,2d 486, 489 (Del. 2001). 6 Culp , 766 A.2d at 490

- 91.4 because the declarant is not in a position to fabricate the statement

. 7 To determine if a statement qualifies as an excited utterance under D.R.E. 803(2), t he Delawa re Supreme Court explained that: a statement must satisfy the following three requirements: ‘ (1) the excitement of the declarant must have been precipitated by an event; (2) the statement being offered as evidence must have been made during the time period while the excitement of the event was continuing; and (3) the statement must be related to the start ling event. ’ 8 The Court further explained that the declarant must have personally perceived the startling event for a statement to be admissible under this exception. 9 In the case before the Court, the State intends to present evidence that Defendant t hreatened Ms. Wilson in October 2009 and that Ms. Wilson was frightened. According to the State, at or about the time of Defendant’s threats, Ms. Wilson wrote a note to Defendant describing his threats and then contacted her son and expressed her fear. T he Court finds that Ms. Wilson personally perceived the startling event and that Ms. Wilson’s statements concerning the October 2009 incident are inherently reliable as excited utterances. Accordingly, Ms. Wilson’s hand

- written letter, statements to her s on, and statements to the police are admissible in consideration of D.R.E. 803(2) and Defendant’s objections are
OVERRULED.

7 Id. at 490. 8 Id. at 4 8 9

- 9 0 (citing Gannon v. State, 704 A.2d 272, 274 (Del. 1998) ). 9 Id. at 490.5 (b) D.R.E. 803(3)

– Then
- Existing State of Mind Statements offered to show the “present intention or an existing state of
mind the dece ased,” qualify as an exception to the hearsay rule. 10 According to the Delaware Supreme Court , there are five requirements to establish the necessary foundation to admit statements reflective of a declarant’s then

- existing state of mind. 11 The five factors required for the admissibility of such statements are: ( 1) the statements must be relevant and material; (2) t he statements must relate to the declarant’s exis ting state of mind at the time t he statements were made; (3) t he
statements must have be en made in a natu ral manner; (4) t he statements must have
be en made under circumstances dispelling suspicion; and (5) t he statement s must not contain suggestion of sinister motives. 12 In this case, the out

- of

- court statements made by Ms. Wilson satisfy th e five factors for admissibility as a hearsay exception. The statements at issue include a hand

- written letter by Ms. Wilson to Defendant while Ms. Wilson was in a state of distress and fear, wherein she explain ed h er feelings, described D ef endant’s
actio ns, and explained why she was ending her r elationship with Defendant . While experiencing that same distress and fear, Ms. Wilson called and spoke to her

son. Accordingly, the Court finds the first four factors are satisfied. Moreover,

10 D.R.E. 803(3); Derrickson v. State , 321 A.2d 497, 503 (Del. 1974)

. 11 Derrickson , 321 A.2d at 503. 12 Id.6 t here has been no suggestion by Defendant that Ms. Wilson had sinister motives to make such statements and thus, the fifth factor is satisfied

. The Court finds that Ms. Wilsons’s statements in the hand

- written letter and as expressed verbally to her son and the police are inherently reliable as describing her then

- existing state of mind. Accordingly, Ms. Wilson’s statements are admissible in cons ideration of D.R.E. 803(3) and Defendant’s objections are OVERRULED. (c) D.R.E. 807

– Circumstantial Guarantees of Trustworthiness Moreover, even if Ms. Wilson’s out

- of

- court statements were not admissible as excited utterances or as statements reflective of her then

- existing state of mind, the Court is satisfied that Ms. Wilson’s statements meet the test for circumstantial guarantees of trustworthiness. Specifically, consistent with D

. R

. E

. 807: ( 1) Ms. Wilson’s statement s are offered as evidence of a materia l fact; ( 2 ) the statement s

are more probati ve on the point for which the statements are offered than any other evidence which the State can procure through reasonable efforts because Ms. Wilson is unavailable as a witness ; and ( 3 ) the general purposes of t he rules of evidence and the interests of justice will best be served by admission of the
statement s into evidence. The Court is “ satisfied that there is a guaranty of trustworthiness associated with the proffered hearsay statement that is equivalent
to t he guaranties of trustworthiness recognized and implicit in the other hearsay7 exceptions.” 13 Accordingly, Defendant’s objections are OVERRULED in consideration of D.R.E. 807. NOW, THEREFORE, on this 4 th day of March, 2015, Defendant’s Motion in Limine is hereby DENIED. IT IS SO ORDERED. 

## Andrea L. Rocanelli

_ _ ___________________________________________ The Honorable Andrea L. Rocanelli

13 Purnell v. State , 979 A.2d 1102, 1107 (Del. 2009) (citations omitted).