State of Delaware v. Harper.
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SUPERIOR COURT OF THE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COUNTY C OURTHO USE RESIDENT JUDGE ONE THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947 April 6, 2005 Via Facsimile and Superior Court Attorney Mailboxes Adam Gelof, Esquire Department of Justice 114 East Market Street, Suite 201 Georgetown, DE 19947 RE: Edward C. Gill, Esquire P.O. Box 824 Georgetown, DE 19497 State v. John Harper Case No. 0401018735 Dear Counsel: Today is final case review in the above-captioned matter, and you ve asked for a prompt decision. Following this morning s evidentiary hearing as to the Motion to Determine the Admissibility of the SANE Nurse s Opinion, I studied Judge Stokes decision in State v. Franklin, which was a bench ruling on February 19, 2004 as to the same issue and the same SANE nurse s qualifications. State v. Franklin, Del. Super., Cr. A. No. 03-04-1083-1089, Stokes, R. (Feb. 19, 2004)(Bench Op.), Transcript No. 0304010407, at D-129. The testimony offered in Franklin as to her opinion was similar to that offered today, as one would expect. Her testimony covered her nursing qualifications, her education and training as a SANE nurse, her certifications, her supervision and training of the SANE nurse program at Nanticoke Memorial Hospital, her familiarity with current events in her field and finally her own professional experience. State v. John Harper Def. ID No. 0401018735 April 6, 2005 Page Two Because my factual conclusions as to her qualifications track the conclusions of Judge Stokes, and because I agree with his analysis of the law, I adopt his reasoning as set forth in Franklin. You both have copies of the transcript. As to this case, she has made objective findings as to multiple injuries. She considered the history of events as reported by the complaining witness. Based upon this information, along with her experience and training, she opined her findings were consistent with non-consensual sex. Mr. Gill s forceful cross-examination has not convinced me that this is junk testimony by a victim s advocate. The issues he raises goes to attacking the weight of the testimony and not the admissibility. I note that I m following Judge Stokes decision because, as Mr. Gill notes, the Supreme Court s affirmation of Franklin applied a plain error standard. Franklin v. State, 2005 Del. LEXIS 100, at *3-4. It would appear from the decision that there was an application to bar the opinion and a decision as to the merits, but nevertheless, because of the way the issue was framed, the plain error standard was applied. I therefore am not relying on the Supreme Court s affirmation in Franklin, but on Judge Stokes analysis. State v. Franklin, Del. Super., Cr. A. No. 03-04-10831089, Stokes, R. (Feb. 19, 2004)(Bench Op.), Transcript No. 0304010407, at D-129. The SANE nurse will be permitted to testify as to the opinions offered in this morning s hearing. State v. John Harper Def. ID No. 0401018735 April 6, 2005 Page Three IT IS SO ORDERED. Very truly yours, T. Henley Graves THG/jfg oc: Prothonotary cc: Thomas A. Pedersen, Esquire
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