Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS J. CAPANO, Petitioner, v. THOMAS CARROLL, Warden, et al., Respondent. : : : : Civil Action No. 06-58 *** : : :

APPENDIX OF UNREPORTED CASES CITED IN PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR HABEAS CORPUS

JOSEPH M. BERNSTEIN (DE Bar #780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 302-656-9836 (Fax) E-mail: [email protected] Attorney for Petitioner Dated: February 20, 2007

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TABLE OF CONTENTS Tab # Colon v. State, 1994 Del. LEXIS 326 (Del. 1994) Smith v. State, 1996 Del. LEXIS 330 (Del. 1996) State v. Capano, 1998 Del. Super. LEXIS 377 (Del. Super. 1998) State v. Capano, 1998 Del. Super. LEXIS 319 (Del. Super. 1998) State v. Capano, 1999 Del. Super. LEXIS 541 (Del. Super. 1999) State v. Capano, 2005 Del. Super. LEXIS 69 (Del. Super. 2005) State v. Magner, 1997 Del. Super. LEXIS 45 (Del. Super. 1997) 1 2 3 4 5 6 7

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TAB #1

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1994 Del. LEXIS 326, *

SANTO A. COLON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 374, 1993 SUPREME COURT OF DELAWARE 1994 Del. LEXIS 326 August 9, 1994, Submitted October 27, 1994, Decided NOTICE: [*1] THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PRIOR HISTORY: Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. No. IN92-09-0809 DISPOSITION: AFFIRMED. JUDGES: Before WALSH, HOLLAND and BERGER, Justices. OPINION BY: BY THE COURT; CAROLYN BERGER OPINION: ORDER This 27th day of October, 1994, upon consideration of the briefs of the parties, it appears that: 1. Appellant, Santo A. Colon ("Colon"), was convicted of criminally negligent homicide and leaving the scene of a fatal accident. In this appeal, he argues that his conviction on the first charge should be overturned because: (i) the evidence was insufficient as a matter law; (ii) a witness's testimony as to the speed of Colon's vehicle at the time of the accident was improperly admitted; (iii) the trial court erred in giving a flight instruction to the jury; and (iv) the State failed to establish that the person who was killed in the accident was the victim named in the indictment. 2. During the early morning hours of June 22, 1992, Deborah DeSanto ("DeSanto") was a passenger in a vehicle driven by her friend, David Bond ("Bond"). While traveling south on [*2] Interstate 95 near the Marsh Road exit in Delaware, Bond lost control of the vehicle, hit the guardrail and flipped the vehicle over on its roof. DeSanto was thrown from the vehicle and came to rest approximately 144 feet north of the vehicle in the right lane of the highway. She was still alive. The drivers of several trucks and passenger cars that approached the accident scene slowed down and avoided hitting DeSanto. Colon, who was driving a pickup truck, did not slow down. He ran over DeSanto, hit Bond's overturned vehicle and continued south on Interstate 95. Colon was apprehended by the police after another driver followed Colon off the highway and took down his license plate number. 3. A jury verdict will not be overturned if any rational trier of fact could have the found essential elements of the crime beyond a reasonable doubt. Williams v. State, Del. Supr., 539 A.2d 164, 168, cert. denied, 488 U.S. 969, 102 L. Ed. 2d 536, 109 S. Ct. 500 (1988). The State was required to prove that Colon, with criminal negligence, caused the death of DeSanto. 11 Del. C. § 631. Criminal negligence is [*3] defined as follows: A person acts with criminal negligence with respect to an element of an offense when he fails to perceive a risk that the element exists or will result from his conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. 11 Del. C. § 231(d). At the time Colon approached the accident scene, two trucks with flashers on were stopped on the shoulder; two vehicles were stopped in the road (Bond's overturned vehicle and another that hit Bond's vehicle after it was disabled); three men, two of whom carried flares, were walking in the road; and DeSanto was lying in the road.

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Evidence was presented that other drivers slowed down to speeds of 5 to 20 miles per hour as they approached the accident scene and that all the other drivers were able to avoid hitting DeSanto. There also was evidence that Colon was traveling at or above the speed limit when his pickup ran over DeSanto. From this evidence, the jury could have concluded that Colon's failure to slow down at the accident scene created a risk that someone would be killed and [*4] that his failure to recognize that risk constituted a gross deviation from the reasonable person standard. 4. Colon also argues that the Superior Court erred in allowing an eyewitness, George Compton ("Compton"), to estimate that Colon was traveling at about 80 miles per hour at the time his pickup struck DeSanto. Opinion testimony by lay witnesses is permitted pursuant to D.R.E. 701 when: (1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions, and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and (2) The opinions and inferences do not require a special knowledge, skill, experience or training. The official Comment to this Rule uses a nonexpert's opinion as to the speed of an automobile as an example of the type of opinion testimony that would be admissible under D.R.E. 701. We agree that lay opinions on this subject may

be admissible and we find no abuse of discretion in the trial judge's decision to allow Compton's testimony in this case. 5. Colon next argues that the Superior Court erred [*5] in instructing the jury that it could use his flight from the accident scene as evidence of his consciousness of guilt. Colon contends that the instruction was improper because he was charged with a negligent, not an intentional, crime. That logic is flawed. The general rule is that evidence of flight can be used in a criminal prosecution to establish consciousness of guilt. Johnson v. State, Del. Supr., 312 A.2d 630 (1973); Crawford v. State, Del. Supr., 245 A.2d 791(1968). While it is true that Colon's flight cannot be used to establish his state of mind prior to the time of impact, his flight after hitting DeSanto reasonably could be interpreted as consciousness of guilt regardless of the mens rea required for the crime. Accordingly, the jury instruction was appropriate. 6. Colon's last argument is that the State failed to establish that the person killed in the accident was the victim named in the indictment. Colon did not raise this objection at trial and, after carefull review of the record, we conclude that there was no plain error. Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100, [*6] cert. denied, 479 U.S. 869 (1986). NOW, THEREFORE, IT IS ORDERED that the decision of the Superior Court, be and the same hereby is, AFFIRMED. BY THE COURT: Carolyn Berger Justice

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TAB #2

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1996 Del. LEXIS 330, *

DAVID D. SM ITH, Defendant Below, Appellant, v. STATE OF DELAW ARE, Plaintiff Below, Appellee. No. 38, 1996 SUPREM E COURT OF DELAW ARE 1996 Del. LEXIS 330 August 6, 1996, Submitted September 19, 1996, Decided SUBSEQUENT HISTORY: [*1] Released For Publication October 7, 1996. PRIOR HISTORY: Court Below: Superior Court of the State of Delaware in and for Kent County. Cr. A. Nos IK95-050002 and -0003. DISPOSITION: AFFIRMED. JUDGES: Before VEASEY, Chief Justice, W ALSH and HOLLAND, Justices. OPINION BY: E. Norman Veasey OPINION: ORDER T his 19th day of September 1996, upon consideration of the briefs of the parties, it appears to the Court that: (1) Following a jury trial, defendant below-appellant David Smith ("Smith") was found guilty of assault in the first degree, the lesser included offense for the charge of attempted murder in the first degree, and possession of a deadly weapon during the commission of a felony. Smith appealed the verdict, contending that the Superior Court abused its discretion by denying Smith's request for a jury instruction on assault in the second degree, which Smith claims to be a lesser included offense to attempted murder in the first degree under the facts of this case. Those facts are as follows: (2) On March 30, 1995, Officers Donald Proctor and Nick Berna responded to a report of domestic violence at the residence [*2] of Smith's father, where Smith was living with his girlfriend, Ethel Clark ("Clark"). Proctor testified that when the officers arrived, they were unable to enter the bedroom because the door was locked. W hen Smith's father opened the door with a key, the officers discovered that a dresser blocked the doorway. Once they pushed the dresser aside, they found Clark lying on the bed with Smith straddled on top of her. Proctor then testified that he saw "an enormous amount of blood and an open gash on the victim's neck." The officers did not immediately observe a knife, but as they escorted Smith out of the residence, the officer testified that a small penknife fell from Smith's clothing. (3) Clark was treated at Kent G eneral Hospital by Dr. Hamilton Carter. Dr. Carter testified that he treated three wounds to Clark's throat and a fourth laceration on the jaw. The wounds were sutured with twenty-six stitches. Dr. Carter also testified that none of the wounds was life threatening since they were shallow and pierced only the outer tissue. Furthermore, he stated that if full force had been applied, the wounds would have been deeper, but these types of neck wounds always must be taken seriously [*3] as they can be life threatening

due to the location of the veins and arteries in that area. (4) Clark testified at trial that she and Smith were arguing in the bedroom that night; that when she informed Smith that she wanted to leave, he locked the door and placed a dresser in front of it; that Smith then threatened to kill her, whereupon he took the knife out of her pocketbook and stabbed her; and that she was unaware that there was a baseball bat in the room during the argument. (5) Smith testified at trial that he and Clark were arguing that night; that he and Clark were intoxicated both during the argument and the events following; that during the argument, Clark picked up a bat and swung it at him; that when Smith blocked the bat, Clark pulled out a knife; and that Smith then threw Clark on the bed and tried to get the knife, during which struggle he cut her neck. (6) Once at the Delaware Correctional Center, Smith's hand, which was swollen from a blow from the bat, was treated by a nurse. The baseball bat, which was admitted into evidence, had been located in the bedroom by Smith's father. During trial, evidence was also admitted that Clark had previously attacked another [*4] woman with a knife. (7) We hold that the Superior Court did not abuse its discretion in failing to instruct the jury on assault in the second degree. There was no rational basis in the evidence for acquitting Smith of assault in the first degree and convicting him of assault in the second degree. Thus, the decision by the Superior Court does not constitute reversible error. (8) A refusal to give jury instructions as

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requested by the defendant is within the sound discretion of the trial court. See Atkins v. State, Del. Supr., 523 A.2d 539, 549 (1987). This decision may be reversed only if there was an abuse of discretion unless the failure to give an instruction violated the defendant's unqualified right to a correct statement of the law. See id. (9) The Superior Court charged the jury on first degree assault, defined in 11 Del. C. § 613(a). n1 Smith claims, however, that the jury should have also been instructed on the charge of second degree assault, defined in 11 Del. C. § 612(a), because he acted recklessly rather than intentionally. n2 Smith argues that the evidence in this case supports a finding that his actions did not create a substantial risk of death [*5] to Clark. Thus, he claims that the jury was unable properly to weigh the evidence because they were unable to consider whether the assault resulted solely in a physical injury resulting from reckless conduct. n1 The relevant language of 11 Del. C. § 613(a) follows: (a) A person is guilty of assault in the first degree when: (1) The person intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or *** (3) The person recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person.

means of a deadly weapon or a dangerous instrument. [*6] (10) "The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense." 11 Del. C. § 206(c); see Webb v. State, Del. Supr., 663 A.2d 452, 462-63 (1995); Slater v. State, Del. Supr., 606 A.2d 1334, 1338 (1992); Dutton v. State, Del. Supr., 452 A.2d 127, 146 (1982). The weight of the evidence is for the jury to decide, and thus a defendant is entitled to an instruction on a lesser crime if the evidence sufficiently supports either conclusion. Ward v. State, Del. Supr., 575 A.2d 1156, 1159 (1990); see Gates v. State, Del. Supr., 424 A.2d 18, 21-22 (1980). Nevertheless, if "there is no rational evidence supporting the defense theory, no instruction is required." Goddard v. State, D.C. App., 557 A.2d 1315, 1316 (1989) (citing Bowler v. United States, D.C. App., 480 A.2d 678, 682 n.8 (1984)). Furthermore, if the evidence overlaps, instead of being mutually exclusive, a claim of error in failing to charge the jury with a lesser offense will fail. Webb v. State, 663 A.2d at [*7] 463. (11) The only difference between a charge of first degree assault and second degree assault is the "magnitude of the risk of harm, the former requiring proof of substantial risk of death whereas the latter requires only proof of a substantial risk of physical injury." Oney v. State, Del. Supr., 397 A.2d 1374, 1376 (1979). Thus, in the case at bar, it must be determined whether there is a rational basis to conclude that the actions of Smith constituted no substantial risk of death to Clark. If there is no such rational basis, the failure to render instructions in the charge of second degree assault is not error. (12) In the case at bar, the jury was properly instructed on finding Smith guilty of first degree assault only if a substantial risk of death was created by his actions. The jury convicted Smith of first degree assault despite the conflicting testimony of Smith and Clark. During trial, Smith claimed that he was acting in self-defense against Clark's actions and then accidentally slit her throat. Smith also argues that the wounds were inflicted without full force, with a weapon that cannot pose a substantial risk of death. Dr. Carter testified that the wounds suffered [*8] by Clark were not life threatening, but also stated that any wounds to the neck have the potential of being fatal. Thus, even if Smith acted recklessly, his conviction of first degree assault must stand as the jury determined

n2 The relevant language of 11 Del. C. § 612(a) follows: (a) A person is guilty of assault in the second degree when: (1) The person recklessly or intentionally causes serious physical injury to another person; or (2) The person recklessly or intentionally cause physical injury to another person by

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that a substantial risk of death resulted from his actions. (13) The State argues that even if this Court determines that evidence supports a finding of an absence of a substantial risk of death by Smith's action, the decision of the trial court is still not reversible since there is no rational basis for concluding that Smith acted recklessly. The State asserts that the jury was instructed on the defenses of justification or, in the alternative, an accident defense. Courts have determined that self-defense and accident defenses are contradictory to reckless conduct. In State v. Miller, Mo. App., 772 S.W.2d 782, 784 (1989), the court determined that in selfdefense there is no justification of a reckless handling of a weapon. Furthermore, if an act is done recklessly, it cannot be due to an accident. Id. at 785. Thus, in the case at bar, Smith fails to establish a rational basis for reckless conduct because this argument is in contradiction to the defenses [*9] on which the jury was instructed. Without a rational basis for Smith's theory, the

Superior Court properly refused the instruction on second degree assault. (14) Smith failed to establish a defense of reckless conduct during trial and thus the Superior Court was not required to instruct the jury that Smith's acts may be determined to be intentional or reckless. Thus, even if Smith did not create a substantial risk of death by his actions, as it was not established that Smith acted recklessly, the Superior Court did not err in refusing to instruct the jury on second degree assault. NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED. BY THE COURT: E. Norman Veasey Chief Justice

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1998 Del. Super. LEXIS 377, *

STATE OF DELAWARE v. THOMAS J. CAPANO, DEF. ID # 9711006198 CRIMINAL ACTION NO. IN97-11-0720 SUPERIOR COURT OF DELAWARE, NEW CASTLE 1998 Del. Super. LEXIS 377 July 31, 1998, Date Submitted September 21, 1998, Date Decided SUBSEQUENT HISTORY: [*1] Released for Publication by the Court October 20, 1998. DISPOSITION: Motion to Suppress Time-Line Document Denied. COUNSEL: Ferris W. Wharton, Esquire, Department of Justice, Wilmington, Delaware and Colm F. Connolly, Esquire, U.S. Attorney's Office, Wilmington, Delaware, Attorneys for the State. Eugene J. Maurer, Jr., Esquire, Eugene J. Maurer, Jr., P.A., Wilmington, Delaware; Charles M. Oberly III, Esquire, Oberly, Jennings & Drexler, P.A., Wilmington, Delaware; Joseph S. Oteri, Esquire, Boston, Massachusetts; and John F. O'Donnell, Esquire, Fort Lauderdale, Florida, Attorneys for the Defendant. JUDGES: LEE, J. OPINION BY: LEE OPINION: MEMORANDUM OPINION LEE, J. Pending in this prosecution of defendant Thomas Capano ("defendant") on the charge of murder in the first degree is a motion to suppress as evidence the time-line document which the United States Government seized on or about November 4, 1996 ("motion to suppress"). Defendant and the State of Delaware ("the State") have submitted memoranda in support of their respective positions regarding the motion to suppress. This constitutes my decision thereon. FACTS In July, 1996, the United States Attorney's Office for the District of Delaware [*2] began a federal Grand Jury kidnapping investigation into the disappearance of Anne Marie Fahey ("Fahey") who was last seen alive on June 27, 1996. The investigation concluded on November 12, 1997, when the State arrested defendant on the charge of murder in the first degree. On June 30, 1996, defendant learned he was a suspect in connection with Fahey's disappearance, and he retained Charles M. Oberly, III, Esquire as his lawyer at that time. Defendant is a lawyer himself. He was admitted to the Delaware Bar on March 11, 1975, and he has held jobs as a State prosecutor, City Solicitor for the City of Wilmington, legal counsel for the Governor, and a partner of a major Philadelphia law firm. It was while he was a partner of this law firm that the facts pertinent to this motion occurred. After his retention, defendant's attorney instructed defendant "to start preparing a time-line of everything he could remember concerning his whereabouts on June 27, 1996, and immediately thereafter." Affidavit of Charles M. Oberly, III, Esquire, dated March 14, 1997, at para. 4. The "purpose in directing the compilation of the aforesaid information was to assist [Mr. Oberly] in providing Mr. Capano [*3] with the legal representation in any future proceedings." Id. On July 10, 1996, defendant and his attorneys met with J. Clayton Undercofler, Esquire, the current chairman of defendant's law firm. At the beginning of the meeting, the chairman "informed Mr. Capano and his lawyers that because the firm did not represent Mr. Capano, any communications were not privileged or otherwise covered by an attorney-client relationship." Affidavit of J. Clayton Undercofler, Esquire, dated May 1, 1997, at para. 2. Defendant maintains that in July, 1996, he compiled the information his attorney requested on several sheets of legal paper. n1 Defendant placed some of these documents in a file located at his law office. Because of his concern that, due to intense media interest, someone might go through his office, defendant placed his file in the office of Timothy A. Frey, Esquire, a law partner. Defendant

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states in paragraph 5 of his affidavit: Mr. Frey was unaware I had placed the file on and among files on his shelves until I advised him of the fact sometime during the month of August or September, 1996. When I spoke with Mr. Frey I advised him that I had placed a confidential file [*4] in his office on his shelves so as to keep it from anyone who might enter my office. My [sic] Frey was advised the documents were confidential and were for my attorneys. I did not authorize Mr. Frey to review or disclose the contents of the file.

employee in the firm had access to his office. On August 5, 1996, the United States Attorney's Office informed defendant he was a target of the investigation. On November 4, 1996, Assistant United States Attorney Colm F. Connolly called Mr. Undercofler and asked him if he was aware that Mr. Frey possessed a file that defendant had given to him. Mr. Undercofler said that Mr. Frey had described the file to him. Mr. Connolly told Mr. Undercofler that a grand jury subpoena was being issued for [*6] the file, the file should be considered under subpoena, and he should tell Mr. Frey that any disposal of the file could be considered an obstruction of justice. Mr. Undercofler was concerned that the documents might contain information regarding the firm's clients. Mr. Connolly and Mr. Undercofler agreed that the firm would produce the file under seal, and firm representatives would screen them for any information relating to the representation of clients before the government reviewed them. Mr. Undercofler called Mr. Frey and told him the substance of his conversation with the government. Mr. Connolly thereafter called Mr. Frey regarding the subpoena. Mr. Frey removed the file from the shelf, looked through the documents, and confirmed they were the same ones he had examined earlier and they appeared to be in the same condition as when he first examined them. Shortly thereafter, Special Agent Kevin Shannon ("Agent Shannon") arrived at the law firm and presented the subpoena. Mr. Frey placed the file in an envelope and sealed it. Agent Shannon delivered the file to Assistant United States Attorney Patricia C. Hannigan, and Ms. Hannigan retained it. On or about November 5, 1996, Mr. [*7] Undercofler, Mr. Frey, and Ms. Hannigan met, and unsealed the envelope. Mr. Undercofler and Mr. Frey determined there was no information in the file pertaining to the firm's clients. Ms. Hannigan reviewed the documents and decided they were not privileged. She then delivered copies of the documents to Mr. Connolly. According to Mr. Undercofler, he called Mr. Oberly on November 4, 1996, and told him that the federal government had taken custody of the file and that no copies of the file had been made. Mr. Oberly maintains he did not learn what had occurred until November 6, 1996. On November 7, 1996, Mr. Oberly spoke to Mr. Frey about the federal government's seizure of the file. According to Mr. Oberly, Mr. Frey told him that Mr. Frey "believed the file contained privileged material." Affidavit of Charles M. Oberly, III, Esquire dated

n1 Defendant's affidavit dated March 13, 1997 has been submitted in connection with this motion. Mr. Frey's recollection of events concerning the file differs from that of defendant. Mr. Frey asserts that sometime in July, 1996, defendant told him that if he "saw in [his] office a file which [he] did not recognize, [he] was not to destroy the file or throw it out." Affidavit of Timothy A. Frey, Esquire, dated May 2, 1997, at para. 6. He further asserts: I gave Capano a quizzical look to suggest I found his statement odd. In response to my facial expression, Capano said that he was concerned that the media could look at the contents of the file. Capano did not tell me what was in the file; nor did he tell me that the file contained confidential [*5] or privileged information. Capano never told me not to look at the contents of the file. Id. According to Mr. Frey, in July or August, 1996, he saw a noticeable file on a bookshelf in his office. He removed the file, and he saw it contained handwritten notes on white, lined paper. He read through the notes, placed them back in the file, and returned the file to the shelf. He assumed defendant had made the notes and the notes related to Fahey's disappearance; he based these assumptions upon the July conversation he had had with defendant. The notes remained in Mr. Frey's office until November 4, 1996. During this period of time, Mr. Frey never locked the door to the office, and every

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May 28, 1997, at para. 9. Mr. Oberly also asserts that Mr. Frey told him that he believed the file contained privileged material and that he had conveyed this opinion to the federal government. On November 12, 1996, one of defendant's attorneys sent Mr. Connolly a letter wherein he asserted the attorney-client privilege with regard to the time-line [*8] document and requested its immediate return. By letter dated November 26, 1996, the federal government stated that it did not believe the document fell within either the attorneyclient privilege or the work product doctrine. Mr. Connolly advised that to the extent defendant insisted the materials were protected from disclosure, he would have to "take the issue up with the Court." Between December 30, 1996 and February 1997, Mr. Connolly spoke with Mr. Oberly on at least two occasions regarding the applicability of the attorney-client privilege and the work product doctrine to the seized file and he conveyed to Mr. Oberly that the federal government maintained the privilege and doctrine did not protect the file. On January 22, 1997, defendant's attorney requested either the return of the documents or something in writing advising him that the federal government was not willing to return the documents to him. By letter dated February 25, 1997, Mr. Connolly informed defendant's attorney that the documents were not protected by the work product doctrine, and in any case, defendant had waived any right to assert the doctrine. During this time, the government used the timeline document [*9] in connection with the federal Grand Jury investigation. On March 14, 1997, defendant filed with the United States District Court for the District of Delaware ("the District Court") a motion requesting that the documents be returned to him. The District Court issued a decision wherein it denied the motion. In re Grand Jury Matter, D.Del., Misc. No. 97-20-SLR, Robinson, J. (June 27, 1997). n2 In that decision, the District Court reached the following conclusions. It held the attorney-client privilege did not apply. The District Court found that the file was work product because defendant acted as his attorney's agent in creating the file in preparation of litigation. However, the District Court found defendant waived the work product protection because he disclosed the file and he failed to timely assert the doctrine. With regard to the disclosure aspect, the District Court concluded that since defendant told Mr. Frey about the file and stored it in Mr. Frey's unlocked and easily accessible office, an adversary might obtain the file, which meant that defendant had waived the right to assert the

doctrine. In the alternative, the District Court held that defendant had waived the [*10] privilege by waiting nearly four months to file a motion to compel the return of the file. In a footnote, the District Court noted that the United States had shown sufficient cause to overcome the work product protection even if defendant had not waived it. n2 The facts before the District Court were identical to those set forth above. In connection with this motion, the State maintains that there are only three areas of factual disputes and that the disputes do not preclude a decision on the motion. The parties dispute: 1) what defendant's motive was for creating the time-line document; what defendant told Mr. Frey about the file; and when Mr. Undercofler called Mr. Oberly about the file. I agree these disputes do not preclude a resolution of the motion. Defendant appealed this decision to the Third Circuit Court of Appeals ("Court of Appeals"). The Court of Appeals issued a decision wherein it affirmed the District Court on the ground that defendant had waived the doctrine by waiting four months to seek [*11] to obtain the file. In re Grand Jury (Impounded), 3rd Cir., 138 F.3d 978 (1998). The Court stated at page 982: In short, when a party's adversary has obtained possession of a party's work product and refuses to recognize the work product privilege, the party asserting the privilege must move expeditiously for relief particularly where, as here, the party asserting the privilege does not even claim that he had reason to believe that the adversarial party was not making use of the work product. The Court went on to conclude: "Capano acted unreasonably in waiting nearly four months to seek a judicial vindication of his assertion of the privilege." Id. In this case, defendant seeks to suppress the seized time-line document. Defendant argues that the document was seized in violation of Super. Ct. Crim. Rule 16, and consequently, it should be suppressed. In opposition to this motion, the State argues that defendant is collaterally estopped from asserting the work product doctrine does not apply. The State argues, in the alternative, that the work product doctrine does not apply. Finally, it argues that once defendant waived the doctrine, that waiver continues throughout [*12] all proceedings.

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DISCUSSION I will, without deciding, assume that defendant is not collaterally estopped from asserting that the work product doctrine protects the time-line document from discovery. Defendant argues that the State could not obtain the time-line document pursuant to Rule 16, and consequently, the document should be suppressed. In Super. Ct. Crim. R. 16 ("Rule 16"), it is provided in pertinent part: (b) Disclosure of evidence by the defendant. *** (2) Information not subject to disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, the defendant's agents or attorneys. If the State had not obtained the time-line document before this prosecution began, then Rule 16 would preclude the State from obtaining it now. n3 However, this matter cannot be resolved in a vacuum. What occurred [*13] before the present prosecution is relevant and impacts on defendant's assertion of the work product doctrine in these proceedings, and the decisions of the District Court and Third Circuit Court of Appeals are compelling. n3 The District Court held that Rule 16's federal counterpart was inapplicable to Grand Jury proceedings. In re Grand Jury Matter, supra at 11-12 n.9 In this case, I find, as did the District Court, that the document constituted attorney work product. I adopt the portion of the District Court's opinion in In re Grand Jury Matter, supra at 12, which pertains to this issue: The documents are alleged to contain i n f o r ma t i o n a b o u t m o v a n t ' s relationship with the woman who disappeared and his whereabouts during the period when she was first reported missing. It is undisputed that

the documents were created by movant after he had retained counsel. Furthermore, the government does not argue that the documents were prepared by movant in anticipation of litigation. Given these facts, [*14] the court finds that movant acted as his attorney's agent in creating the documents. I also find, as did the District Court, that leaving the documents in Mr. Frey's office constituted disclosure of the documents. Defendant, an attorney with a working knowledge of the law, had to know that anyone, including Mr. Frey, could have reviewed the documents. Defendant did not have an attorney-client privilege with anyone in his firm, and consequently, once someone other than defendant or his attorney reviewed the documents, then they were subject to disclosure to defendant's adversary. Defendant could not have had any reasonable expectation that Mr. Frey or others would not review the documents, even if he told Mr. Frey not to look at them. Consequently, defendant "consciously disregarded the possibility that an adversary might obtain them." In re Grand Jury Matter at 13. By doing so, defendant waived the right to assert the applicability of the work product doctrine. Id. In addition, defendant did not seek to compel the return of the documents until four months after its seizure. In effecting such a delay, defendant waived his right to protection of the work product doctrine. In re Grand Jury Matter at 14; [*15] In re Grand Jury (Impounded), supra. See United States v. De La Jara, 9th Cir., 973 F.2d 746 (1992). Once defendant waived his right to assert the protection of the doctrine, he waived it with respect to subsequent proceedings. Westinghouse Electric Corporation v. Republic of the Philippines, 3rd Cir., 951 F.2d 1414 (1991); In re Subpoenas Duces Tecum, D.C.App., 238 U.S. App. D.C. 221, 738 F.2d 1367 (1984); In re Sealed Case, D.C.App., 219 U.S. App. D.C. 195, 676 F.2d 793 (1982); In re Worlds of Wonder Securities Litigation, N.D.Cal., 147 F.R.D. 208 (1992). See Tackett v. State Farm Fire & Cas. Ins. Co., Del. Supr., 653 A.2d 254, 266 (1995). Defendant lost the right to assert the privilege though his own action and inaction. n4 Rule 16 would prevent the State from obtaining the document if defendant had not previously provided it to the State by way of his disclosure and waiver. However, where, as here, defendant's disclosure and inaction gave the federal government access to the document, Rule 16 does not came into play. See State v. MacDonald, Del. Super., 1993 Del. Super. LEXIS 8, *11, Cr.A. No. IN90-10-1063, Barron, J. (January 20, 1993) at 9 (Rule 16 does not preclude

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the State [*16] from obtaining materials, within that rule's scope, to which it is entitled by another means). n4 The Court rejects defendant's attempts to place the blame on the State for defendant's predicament.

In conclusion and for the foregoing reasons, defendant's motion to suppress the time-line document is denied. IT IS SO ORDERED.

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STATE OF DELAWARE v. THOMAS J. CANPANO. DEF. ID # 9711006198 CRIMINAL ACTION NO. IN97-11-0720 SUPERIOR COURT OF DELAWARE, NEW CASTLE 1998 Del. Super. LEXIS 319 September 30, 1998, Date Decided SUBSEQUENT HISTORY: [*1] Released for Publication by the Court October 19, 1998. DISPOSITION: Defendant's motion to Suppress of May 1, 1998, Abuse Motion, and Suppression Motion of July 15, 1998 denied. COUNSEL: Ferris W. Wharton, Esquire, Department of Justice, Wilmington, Delaware and Colm F. Connolly, Esquire, U.S. Attorney's Office, Wilmington, Delaware, Attorneys for the State. Eugene J. Maurer, Jr., Esquire, Eugene J. Maurer, Jr., P.A., Wilmington, Delaware; Charles M. Oberly III, Esquire, Oberly, Jennings & Drexler, P.A., Wilmington, Delaware; Joseph S. Oteri, Esquire, Boston, Massachusetts; and John F. O'Donnell, Esquire, Fort Lauderdale, Florida, Attorneys for the Defendant. JUDGES: LEE, J. OPINION BY: LEE OPINION: MEMORANDUM OPINION LEE, J. Pending in this first degree murder case are several motions of defendant Thomas Capano ("defendant") which are based upon the premise that the federal government had no right to investigate the disappearance of Anne Marie Fahey ("Fahey"). I address these motions in this decision. PROCEDURAL POSTURE I first address the procedural aspect of these motions. As discussed below, two of the three motions are procedurally barred. The first motion is defendant's Motion to Suppress [*2] Evidence dated May 1, 1998 (hereinafter referred to as "May 1, 1998 Motion"). In that motion, defendant seeks to suppress all evidence seized and all testimony relating to evidence seized from his residence and motor vehicles on or about July 31, 1996. The May 1, 1998 Motion attacks the search warrants executed on July 31, 1996 whereby evidence was seized from defendant's residence and motor vehicles. This motion contains only a conclusory allegation that: the affidavit in support of the issuance of the search warrant ... omits references to certain materials which should have been considered by the magistrate in determining whether or not there was probable cause to believe that evidence of criminal activity would be found in the aforementioned locations. The defendant requests that the Court suppress the evidence seized pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) ("Franks"). The State of Delaware ("the State") asks the Court to deny the May 1, 1998 motion because defendant's allegations do not entitle him to a Franks hearing, much less the suppression of the evidence. In section III of the Motion of Defendant Thomas [*3] J. Capano to Suppress Evidence Derived from Abuse of the Federal Grand Jury and Investigative Processes, for a Hearing pursuant to Franks v. Delaware, for a Hearing to Determine the Evidence Which the State Intends to Use at Trial Which was Obtained, Directly or Derivatively, from the Abuse of the Federal Grand Jury Process in this Case, and to Disqualify Colm Connolly, Assistant United States Attorney, from Further Participation in this Case (hereinafter referred to as "Abuse Motion"), defendant sets forth details to support this May 1, 1998 Motion. However, the State has not responded to these allegations because it sought to dismiss the Abuse Motion as untimely filed. I find the May 1,

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1998 Motion is barred because defendant failed to timely present allegations sufficient to support it. In his second motion, defendant seeks leave of the Court to file the Abuse Motion because it was not filed before the May 1, 1998 deadline which this Court set for the filing of motions. Defendant maintains that when Joseph S. Oteri, Esquire joined the defense team after May 1, 1998, he realized that this Abuse Motion should be filed. However, as the State shows and as Mr. Oberly acknowledged [*4] in his letter dated July 28, 1998, defendant was aware of the issue this motion raises during the period when the Federal Grand jury was investigating this case. Even though the issue appears more thoroughly researched than it did when it was presented in the federal forum, it is clear that defendant recognized the issue long before May 1, 1998. Consequently, the motion is barred as not timely filed. Defendant also filed a Motion to Suppress Evidence Seized During Searches of His Jeep Cherokee, His Chevrolet Suburban, and His Residence At 2302 Grant Avenue, Wilmington, Delaware, Pursuant To Federal Search Warrants On July 31, 1996; Any Evidence Derived From The Seizure From Him Of Blood And Hair Samples Pursuant To A Federal Search-Warrant Issued On August 16, 1996; And Any And All Evidence Derived From A Search Of the Thaw Firm Of Saul, Ewing, Remick & Saul Pursuant To A Federal Search Warrant Issued On September 4, 1997 (hereinafter, referred to as "Suppression Motion dated July 15, 1998"). The State objects to this motion as untimely filed. The Court previously allowed the motion because it thought it was a supplement to the May 1, 1998 Motion. However, a closer review of it shows [*5] it is not a supplement and it is untimely filed since the issue upon which it is based was known to defendant during the proceedings which occurred in the United States District Court for the District of Delaware. But, because I previously deemed this motion timely filed, I will consider it. The Court considers all the motions on their merits despite the procedural defects. n1 Before considering the motions on their merits, I set forth the facts necessary to such a consideration. n1 Due to the procedural posture of the case, the State did not address these motions on their merits, nor did the Court expect it to do so. FACTS Fahey was last seen alive on June 27, 1996. That evening she had dinner with defendant.

Fahey's family reported her missing on June 30, 1996. Fahey was the scheduling secretary to Delaware's Governor, Thomas Carper. The President of the United States knew Fahey through business dealings with Governor Carper, and when he learned about Fahey's disappearance, he offered, in early July, the [*6] help of the federal government. The Federal Bureau of Investigation ("FBI") joined the investigation on or about July 8, 1996. The United States Attorney's Office joined the investigation no later than July 25, 1996. In July, 1996, the United States Attorney's Office for the District of Delaware, the FBI, and the Wilmington Police Department began a federal Grand Jury kidnapping investigation into the disappearance of Fahey. According to defendant, the FBI took over the investigation with a plan that included pressuring defendant's inner circle to reach defendant. In an affidavit dated July 30, 1996, Special Agent Eric J. Alpert of the FBI ("Agent Alpert") stated facts in support of three search warrants. These warrants were to search defendant's home at 2302 Grant Avenue, Wilmington, Delaware 19806; a 1993 Jeep Grand Cherokee, which defendant drove as his primary vehicle; and a 1993 Chevrolet Suburban, which was registered to defendant and his wife. The allegations appearing in this affidavit which are pertinent to a decision on these motions are set forth below. On June 30, 1996, members of Fahey's family called the police about Fahey's disappearance. The Wilmington police and [*7] the Delaware State Police responded to the call. Fahey had worked on June 27, 1996. She had an appointment with her psychiatrist at 5:00 p.m. that date. Fahey had been dating Michael Scanlan ("Scanlan"). He called her Thursday night and left a message, but he never heard from her. He called on Friday and got no response. He and Fahey had plans to have dinner with Fahey's brother that Saturday evening. On Saturday, he drove by Fahey's home and saw her car sitting out front. He thought she was home and was upset with him. When Fahey's brother called later that evening to find out where they were, Scanlan said he had no idea of her whereabouts. Fahey's brother called his sister, Kathleen Fahey-Hosey. Ms. Fahey-Hosey went to the apartment with others. They saw Fahey's car out front. The deadbolt on the door was locked. Fahey's landlord let the group into the apartment. There, they found her pocketbook with all of its contents. The only things that seemed to be missing were her car and house keys. In the apartment, some items were in disarray, which was contrary to Fahey's

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habit of neatness. There were twelve unanswered/unsaved messages on the answering machine; the first was Scanlan's [*8] message from Thursday night. The group told the police that she would have checked her messages if she had returned home Thursday night and that she would not have left the mess in the apartment if she had been there. Discovered in the apartment were letters from defendant. Finding the letters and Fahey's diary provided the family members and Scanlan with the first news of defendant and Fahey's affair. Fahey's diary entry, dated April 7, 1996 states "I finally have brought closure to Tom Capano." "What a controlling, manipulative, insecure jealous maniac." At 3:39 a.m., Wilmington police went to defendant's home and talked with him about Fahey. Defendant told them that he had picked up Fahey on Thursday night and they had gone to dinner at P a n or a ma R e s t a u r a n t i n P h i l a de l p h i a , Pennsylvania. After dinner, they went back to his home on Grant Avenue, Wilmington, Delaware, where he gave her a dress and groceries; both the dress and groceries were found in Fahey's apartment. He then took her home, went into the apartment for a few minutes, and left. He said he left at approximately 10:00 p.m., and stopped at the Getty Station on Lovering Avenue for cigarettes. However, further investigation [*9] showed the service station closed at 9:30 p.m. that night. Defendant said he was unaware of Fahey's whereabouts, although he did speculate on such. The next day the police sought to interview defendant again, but he seemed agitated and he "stated that he wished he had not said some of the things he told the officers earlier that were private in nature." The police interviewed Kim Horstman, one of Fahey's friends. She explained that Fahey and Capano had had an affair for about two years. Fahey had tried to break off the relationship several times before, but defendant was obsessed with her. He had taken back gifts he had given her. Ms. Horstman had lunched with defendant twice, and he told her how much he loved Fahey and how he did not understand how she could date Scanlan. Fahey's hairdresser, Lisa D'Amico, told the police that defendant scared Fahey, they argued constantly, and defendant waited outside Fahey's apartment but she would not let him inside the apartment. She also told them that during a May hair appointment: Anne Marie told her that Capano recently went crazy and grabbed her.

He told Anne Marie that she has ruined his life because he left his wife for her and [*10] now she is rejecting him. She told (her) that she planned to tell him the relationship was over. Anne Marie was nervous and frightened that he might harm her. She additionally told the police: Fahey told her that on one occasion in May of this year Capano and Fahey were sitting in Capano's car and Fahey told Capano that she wanted to end their affair, that Capano started screaming and yelling at her and called Fahey a slut and bitch, grabbed her by the neck and Fahey jumped out of the car and ran into her apartment. Jill Morrison, a friend of Fahey, told the police: Fahey had told her that she was having an affair with Capano and that Capano was possessive, controlling, psychotic, and needs counseling. ... Fahey had told her that sometime in 1996, Capano picked Fahey up in his car for a drive, that Capano locked the doors of the car and refused to let Fahey out of the car, that Capano then drove to his house without Fahey's consent, drove the car into the garage, locked the garage doors and refused to let Fahey out of the garage until after she had listened to what he had to say about her attempts to dissolve their relationship. Al Franke, another of Fahey's [*11] friends, told the police that about six to eight weeks before June 27, Fahey told him that defendant had climbed the fire escape, broke into her apartment, yelled and screamed at her in a rage, and taken back all his gifts. One of defendant's neighbors saw defendant cleaning out a Suburban on Sunday, June 30, 1996. Further investigation showed that Capano purchased a new rug and padding from Airbase Carpets on June 29, 1996. The rug cost $ 249, which Agent Alpert considered inconsistent with his spending habits and lifestyle. The police learned that defendant's house cleaner had last cleaned on June 24, and was scheduled to clean on July 8, but defendant called on July 5th or 6th and canceled that cleaning session. When the cleaner went to the house on

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July 22, 1996, she observed in the den area a rug and two new chairs which had not been there previously. Missing were the wall-to-wall carpet and a sofa which had been there on June 24, 1996. The police interviewed the waitress who served defendant and Fahey on June 27 at Panorama Restaurant. She identified Fahey from her picture, and she told them that the gentleman ordered everything. She also told them "that the two did not [*12] seem very happy and that the lady looked 'solemn' and had a 'forced smile' whenever she approached the table. Neither of the two touched much of their dinner and they did not appear to have much of a conversation." The gentleman had Fahey sign his credit card. On July 29, 1996, Agent Alpert interviewed Michele Sullivan, a practicing psychologist who was treating Fahey. Fahey had told Sullivan that defendant stalked her and that she was frightened of him. Sullivan was working with Fahey to help her end the relationship. Agent Alpert further stated: Sullivan thought the only reason Fahey would have accompanied Capano to Philadelphia for dinner on June 27th would be to break off the relationship. I then described what (the Panorama waitress) had told me about the setting and circumstances of Capano's dinner with Fahey at Panorama on June 27th. Sullivan said that my description was consistent with her belief that Fahey was trying to end the relationship. Sullivan also said that based on her knowledge of the relationship between Capano and Fahey, Fahey's intent to end the relationship, and the restaurant scene at Panorama, Sullivan did not believe that Fahey would have willingly [*13] gone to Capano's house that night. Sullivan also said that Fahey was not suicidal and was looking forward to the future. Agent Alpert then stated: I believe that there is probable cause to believe that Thomas Capano took Anne Marie Fahey without her c o n s ent from the Pa n o r a ma Restaurant in Philadelphia to his home at 2302 Grant Avenue in Wilmington, Delaware and that he killed her at his residence. He also stated that he believed that a search of

defendant's residence would reveal evidence of the federal offense of kidnapping. The United States Magistrate ("Magistrate") authorized the warrant. Agent Alpert submitted an affidavit dated August 16, 1996, in connection with the seeking of a search warrant to compel defendant to produce blood and hair samples. This affidavit contained the same information as that submitted on July 30, 1996, plus additional information. The additional information consisted of a listing of what the searches of defendant's house and vehicles on July 31, 1996 produced. During the searches, the police found blood stains in the house and an apparent blood stain in the back seat of defendant's Jeep Cherokee. They also found hairs and fibers in the [*14] vehicles and house. Agent Alpert then stated: Based on the foregoing, I believe there is probable cause to believe that Thomas Capano took Anne Marie Fahey without her consent from the Panorama Restaurant in Philadelphia to his home at 2302 Grant Avenue in Wilmington, Delaware, that he killed her at his residence and then attempted to clean evidence relating to the cause of her death in his laundry room and then removed at least some of that evidence from the residence in his black Jeep Grand Cherokee. I also believe that a comparison of the blood and hair samples found in the defendant's residence and jeep with the defendant's blood and head and pubic hair will result in evidence of the federal offense of kidnapping (18 U.S.C. § 1201). The Magistrate issued the warrant. Agent Alpert also sought a search warrant for the law firm of Saul, Ewing, Remick & Saul ("Saul Ewing") for specified e-mail and voice mail. The affidavit dated September 4, 1997 which Agent Alpert submitted in support of the search warrant contained the information set forth in the June 30, 1996 affidavit. In addition, he alleged facts concerning a relationship between defendant and another woman in [*15] the early 1980's where defendant allegedly committed various crimes to retaliate against that woman for ending a relationship with him. Agent Alpert set forth other information regarding this woman, whom he referred to as VW. VW and defendant had contact before Fahey's disappearance. Defendant arranged for her to obtain a job in his firm, and she rejected the job on the day she was to begin to work. Defendant sued her for money she owed him on

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June 14, 1996, 13 days before Fahey was last seen alive. Agent Alpert also submitted information regarding the e-mail and voice mail at Saul Ewing, which is where defendant was working during all pertinent times. Agent Alpert then stated: 42. Based on the foregoing and the assertions in Affidavit B (a sealed affidavit attached to the warrant applications), I believe there is probable cause to believe that Thomas Capano took Anne Marie Fahey without her consent from the Panorama Restaurant in Philadelphia to his home at 2302 Grant Avenue in Wilmington, Delaware, that he killed her at his residence and then attempted to clean evidence relating to the cause of her death in his laundry room and then removed at least some of that evidence [*16] from the residence in his black Jeep Grand Cherokee. I believe that VW's rejection of Capano contributed to his reaction to Fahey's attempt to end her relationship with him on June 27, 1996. 43. I also believe that any e-mail and voice-mail messages between Thomas Capano and Anne Marie Fahey may provide evidence of an affair between them and the fact that Anne Marie Fahey was attempting to end the affair and being harassed and intimidated by Thomas Capano. Such evidence would be relevant to Capano's motive and intent to harm Fahey. I also believe, based on the information contained in Affidavit B ... that the voice mail disk may contain evidence of violations of 18 U.S.C. § 3 (accessory after the fact). The Magistrate issued the warrant. DISCUSSION In his Abuse Motion as well as his Suppression Motion dated July 15, 1998, defendant bases all of his arguments upon the premise that the federal government had no business investigating Fahey's disappearance because the federal government had no probable cause to believe that the federal offense of kidnapping had been committed. Defendant argues that Agent Alpert's affidavit did not provide any facts to support his assertion [*17]

that there was "probable cause to believe that Thomas Capano took Anne Marie Fahey without her consent from the Panorama Restaurant in Philadelphia to his home at 2302 Grant Avenue in Wilmington, Delaware, and that he killed her at his residence." In particular, defendant argues that there were no facts showing that Fahey was taken from Pennsylvania against her will. n2 n2 I am basing this discussion on the assumption that it is appropriate to attack the warrants and the federal grand jury proceedings in this Court. The standard for reviewing the Magistrate's finding of probable cause is set forth in Jones v. Town of Seaford, Delaware, D.Del., 661 F. Supp. 864, 870-71 (1987): In reviewing a Magistrate's finding Of probable cause, the Court is guided by the premise that in a marginal case a search conducted pursuant to a warrant "may be sustainable where without one it would fall." [Citation omitted.] A reviewing court's function is "simply to insure that the Magistrate had a 'substantial basis for... [*18] concluding' that probable cause existed." [Citation omitted.] The court should resist the impulse to engage in a de novo determination of probable cause. Rather, the task of a district court is merely to determine whether, in light of the totality of the circumstances known to the Magistrate, the record contains substantial evidence to support the issuance of the warrant. [Citation omitted.] The issue here is whether the affidavits of Agent Alpert provided evidence of probable cause to believe that defendant had kidnapped Fahey in violation of 18 U.S.C. § 1201. In that statute, it is provided in pertinent part: (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in-the case of a minor by the parent thereof, when -(1) the per son is willfully transported in interstate ... commerce;

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*** shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be p u n i s h e d b y d ea th o r l if e imprisonment. (b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four [*19] hours after he shall have been u n l a wf u l l y seize d , c o n f i n ed , inveigled, decoyed, kidnapped, abducted or carried away shall created a rebuttable presumption that such person has been transported in interstate ... commerce. In order for there to be federal jurisdiction over the matter, Fahey must have been held against her will at the time the state line was crossed. United States v. Toledo, 10th Cir., 985 F.2d 1462 (1993), cert. den., 510 U.S. 878, 126 L. Ed. 2d 174, 114 S. Ct. 218 (1973). The facts alleged in the affidavit provide support for three scenarios consisting of substantial evidence to support the issuance of the warrant. First, there are the alleged facts that Fahey was attempting to end her relationship with defendant; that he previously had responded in rages when Fahey attempted to end their relationship; that Fahey's psychiatrist believed that Fahey was ending the relationship on June 27; and that defendant had previously confined Fahey against her will while she was in the car with him. Fahey was last seen by someone other than defendant in Philadelphia and there was tension between her and defendant at that time. There was probable cause to believe that [*20] Fahey ended the relationship during dinner at the restaurant; defendant acted as he allegedly had before (he held her against her will); and defendant formed the intent to kill her in Philadelphia and took her to his home to kill her. There also is probable cause to believe that defendant inveigled Fahey to accompany him that evening for the purpose of killing her. United States v. Boone, 11th Cir., 959 F.2d 1550 (1992); United States v. Hughes, 4th Cir., 716 F.2d 234 (1983); United States v. Hoog, 8th Cir., 504 F.2d 45 (1974), cert. den., 420 U.S. 961, 43 L. Ed. 2d 437, 95 S. Ct. 1349 (1975); Davidson v. United States, 8th Cir., 312 F.2d 163 (1963). The alleged facts support the theory that defendant knew Fahey was attempting to end the relationship, he formed an intent to kill her, he took her to dinner knowing

he planned to kill her, and he crossed the Pennsylvania/Delaware border after forming this intent. The third basis for probable cause is the twenty-four hour presumption set forth in 18 U.S.C. § 1201(b). United States v. Rees, D.Md., 193 F. Supp. 861 (1961). But see State v. Moore, 2d Cir., 571 F.2d 76 (1978). n3 Since Fahey had been missing [*21] more than twenty-four hours, the presumption came into play and provided probable cause to believe that the federal government had jurisdiction to investigate this matter. n3 Whether that presumption is unconstitutional is not to be determined until a trial on the kidnapping charge. United States v. Callahan, D.Minn., 434 F. Supp. 1203 (1977). For the foregoing reasons, I conclude that there was probable cause for the federal government to believe that the federal crime of kidnapping had occurred. Consequently, the grand jury investigation and the search warrants are valid. Because the premise of defendant's Abuse Motion and his Suppression Motion dated July 15, 1998, fail, the motions are denied. The final motion I address is defendant's May 1, 1998 Motion to Suppress. Defendant sets forth in paragraph 20 of his Abuse Motion allegations in support of the May 1, 1998 Motion to Suppress, and I incorporate those allegations by reference. Therein, he states that Agent Alpert omitted information, and consequently, [*22] he is entitled to a Franks hearing. In Franks, 438 U.S. at 155-56, 98 S. Ct. at 2676, it is provided: Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that, at that hearing the allegation of perjury or reckless disregard is established by the defendant by the preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant

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must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking On the face of the affidavit. I have reviewed these omissions which defendant contends were made, and I find that defendant has not made any substantial preliminary showing that Agent Alpert did not present the truth in his affidavit. Defendant seeks to interpret the alleged facts in his own [*23] way and he bases much of his argument upon speculation and defense hypotheses. There is no requirement that a police officer place a defendant's interpretation of the facts, particularly speculative ones, into the

affidavit seeking probable cause. Since defendant has not made any substantial preliminary showing that Agent Alpert was not truthful in his affidavit, there is no need for a Franks hearing, and consequently, the evidence seized pursuant to the warrants issued will not be suppressed. In conclusion, I find defendant's May 1, 1998 Motion to Suppress, his Abuse Motion, and his Suppression Motion dated July 15, 1998 are either procedurally barred or lack substantive merit and I deny them. IT IS SO ORDERED.

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STATE OF DELAWARE v. THOMAS J. CAPANO, DEF. ID # 9711006198 CRIMINAL ACTION NO. IN97-11-0720 SUPERIOR COURT OF DELAWARE, NEW CASTLE 1999 Del. Super. LEXIS 541 March 16, 1999, Decided SUBSEQUENT HISTORY: Subsequent civil proceeding at Fahey-Hosey v. Capano, 1999 Del. Super. LEXIS 351 (Del. Super. Ct., Aug. 31, 1999) Motion denied by, Request denied by State v. Capano, 1999 Del. Super. LEXIS 324 (Del. Super. Ct., Sept. 1, 1999) Affirmed by, Remanded by Capano v. State, 781 A.2d 556, 2001 Del. LEXIS 349 (Del., 2001) PRIOR HISTORY: Gannett Co. v. State, 723 A.2d 396, 1998 Del. LEXIS 428 (Del., 1998) DISPOSITION: [*1] Court concludes sentence for defendant's commission of murder of Anne Marie Fahey shall be death by le