Free Response to Motion - District Court of Delaware - Delaware


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Date: September 28, 2007
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State: Delaware
Category: District Court of Delaware
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I I _` Case 1:07-cr—OOO34-SLR Document 26 Filed O9/28/2007 Page 1 of 3 _
f _ I I I I IN THE UNITED STATES DISTRICT COURT
` A . FOR THE DISITRICT OF DELAWARE ‘ I
I ‘ UNITED STATES AMERICA, I ) ‘ I I
I . - Plaintiff, g I . I I _ - I_
f v.I I g · Crimina1_Action No. 07-34-SLR ·
I · roi~1xcLA.RK, r j ·I · i q • I
I ` Defendant.I II g ‘ I II I .
. I ` I (lOVERNMENT’SIRESPONSE TO DEFENDANTS ‘
‘ _ . ` MOTION IN LIMINE ‘ . . I
I I I The Government replies to the def`endant’s request in the following manner: I I
I I I I I I II The use of the term "loiteri11g" by Officer Wilkers. - _ I
I ‘ I Defendant requests that Officer Wilkers be precluded from using the tenn "loiteringii when .
I I I describing his impression of the acts of the defendant on the date in Iquestion. The Oovemment
_I _ ‘ will not use the term "loitering" during its direct examination of the officer. The Govemment I
I . expects to elicit, among other things, the following facts from Officer Wilkers: q I .
._ _ (Il) That Officerpillfilkers drove pastthedefendant on three occasions around lOa.m. on the . I ‘ _ q I
I " _ day in question. . I I I I
_ I (2) The defendant in the same spot each time the Officer drove past. I
. . I I (3) Because of the dav, time of day, and the fact that the defendant was standing near an p II I E
_ elementary school, Officer Wilkers decided, on the fourth pass, to stop. and approach the I I I I
I I defendant. I I I I I I I I I I . _ t I

I n T Case 1 :OT—cr—OOO34-SLR Document 26 Filed O9/28/2007 Page 2-of 3 ·
n I ‘_ D I (4) Officer Wilkers approach the defendant and asked -to speak with him. The defendant
at q l began to walk backwards-and then fled. T · _ - l l n
` · l L In essence, the Government intends to illicit testimony from the Officer as to what he saw _
l n that day, as well as why he approached the defendant. The Government can accomplish this task
D without resorting to the use of the term “loitering." I _ I .
D _ .However, should the defendant engage in a line of cross-examination that calls into.- ·
I an I question the reasoning for the stop or the legality of the stop, the Government reserves the right
_ l i to. question the Officer regarding the Delaware statute regarding loitering, the elements of that _ T
I . _ statute, and if, based on his training and experience enforcing that statute, the dei`endant’s actions I "
n` fit the definition of "loitering" as described in the Delaware Criminal Code. D _ I n
I Q I D I In-conrt identification by a civilian witness. · I ` _ A A
_ The defendant requests that the civilian witness be precluded from making an in-court `
A identification of the defendant.- The government does not, at this time, intend to ask the civilian .
r _ U witness to make an in-court identification. U n
n. O The government will however inquire of the witness if he can identify general - . -
characteristics of the defendant, i.e. race, build, clothing, etc., etc., etc This line of questioning is ‘ ‘
. l. . __ completely appropriate and should be allowed. T I _ ‘ l a I I · .
l _ l As in the above response, the Govermnent’s stipulation only applies to its direct
` q I examination. if the defendant engages in questioning that "-opens the door" to the Government · A é
.- f inquiring if the witness can identify the defendant, the Government requests that it be allowed, on .
. redirect, to ask the witness if he can identify the defendant and ask if he is in the Courtroom. l l
T. T __ u __ ‘2 ·`-. u

Case 1 :O7—cr—OOO34-SLR Document 26 Filed O9/28/2007 Page 3 of 3
._ I _ I Finally, in his papers, the defendant recites efforts he took to obtain the name of the civilian
witness. The defendant does not allege that the Government failed to comply with his discovery
‘ obligations, and, in fact, the Government has met all of its discovery obligations. The _
Government has already informed the defendant that it will provide the last name of the civilian
· witness at least a week before the trial. I
I I Conclusion. _ -
. VVHEREFORE, the Government respectfully requests that the Court deny defendant’s l
l motion in limine. . U ·
l ` . l Respectfully submitted,
g U n l COLM F. CGNNOLLY
_ ‘_ . _ - United States Attomey
f- · Shawn E. Martyniak i
` Special Assistant United S ates Attorney
1007 Orange Street, Suite 700
· Wilmington, DE 19899-2046
T · (302) 573-6277 . ‘