'21/2015 10:03 AM 25BOCA-GWFAX 9149954082 Page 2 Of 9 EILED I. 5.. I . ENTERED 0N ?92. 20115. I .L . . - COUNTY CLERK l-J' SUPREME OF THE 3(0an I .W .5 COUNTY OF THE PEOPLE 0E QF -against DECISION AND ORDER LACEY SPEARS, Ind.No'. 14-00450~o1 Defendant. - -- . .. .X NEARY, J. The defendant haszbeen indicted for ilie'crimes of Murder in the SecoNd Degree and Manslaughter in the First Degree: '11 is alleged tHat, on or'ab'out'J annary'23, 2014, the defendant, being eighteen years of aige 01: older, End acting tinder Circumstances ev-incing a' depreved indifferenee to hurnan life? Eiletiztklessly engaged in Conduct Creating a grave i?iSk of serious injury. or death to her ?fe-year? old son, and'tlf'tei?eby Caused his death. (3n or-about December 19-, 20l4,?ie defendant filed a motionjn Zimin'?? seeking an .the following reliefs 1, Precluding the People from offering at trial certain medical records, Facebook records, Myspace and Instagram records; and Ir21/2015 10:03 AM 2SBOCA-GWFAX 9149954082 Page 3 of 9 Peo lev ace ears Indictment No. 14?00450-01 2. Precluding the People from offering at trial certain information and photos derived from the defendant?s laptOp, iPhone and iPad; and 3. Precluding the Peeple from offering any expert witness or testimony and argument at trial regarding ?Munchausen by - Proxy: also known as ?Factitious Disorder by Proxy?; and 4. Precluding the People from offering any of any kind regarding ?Munchaus'en by Proxy? also known as ?Factitious Disorder by Proxy.? The Peeple opposed the aforementioned motion and on or about January 12, 2015' ?led a Notice of Cross Motion to Admit Molineux and Other Evidence at Trial. On January 15, 2015, the Court received the defendant?s Affirmation in Reply to the People?s reply and cross motion. The defendant contends that a substantial portion of the People?s potential evidence consists of medical, social media, telephone, laptop, iPad and inone records which are either so remote in time and/or subject to speculation as to be irrelevant concerning the period of time during which the People contend the crime was committed. The medical records in question Span the ?ve (5) years of the deceased child?s life and include hospitals and medical personnel in Alabama, Florida and New York. The social media, telephone, laptop, iPad and iPhone records consist of alleged postings, contacts, and searches by the defendant concerning her son?s condition and illness. These records generally cover a period closer in time to the alleged commission of the crime. Page 2 l'21/2015 10:03 AM 9149954082 Page 4 of 9 Peop_le Laccv Spears Indictment No. 14-00450-01 .- I The defendant originally sought- preclusion of the medical'records arguing they were irrelexi'ant and remote silica they neither dealt with the dates of the alleged crime nor the cause of death as outlined in the Bill of Particulars.? An argument was posited by the defendant 1 relative tothe proposed social media, telephone, laptOp, iPad and i-Phone evidence claiming they were irrelevant as they were not made during the time frame stated in the Bill of Particulars; would cause a jury 'to speculate; and?were unreliable because a preper foundation for admission could not be? laidThe People?s principal arguinent'jior admission of these e?idence is they tend to establish the defendant?s state of mind or the mens r'e'a required for the commission of the charged crimes. In their responsive papers whichincluded a cross motion to adniit certain Molineux evidehce, the People agreed not .to offer certain alleged evidence that was of concern to the. defendant. The Peoplehavc-represented that; . -. . . at this time the People seek to introduce . any capert I testimony, documents, or evidence concerning the ?Munchausen by 'Proxy? 'as desicribed'in defendant?s motion. . . [See Page 14' of Af?rrnation in Opposition to Defendant?s Motion to Preclude EvidenceThe People have also-extensively listed certain medical, and: iPad records that they do not intend to offer in evidence. [See also Page 14 mentioned aboueL- Page-3 ?21/2o1s 10:03 AM 9149954032 Page 5 of 9 People v. Lacey Spears Indictment NO. 14-00450-01 Similarly, the defense in its Affirmation in Reply to the People?s Cross Motion consents to the admission of certain hOSpital records (see Paragraph 9) and witness testimony (see Paragraph 18) which had previously been opposed. DISCUSSION ?In New York, the general rule is that allrelevant evidence is admissible unless its admission violates some exclusionary rule. . . . Evidence is relevant if it has any tendency in reason to prove the existence of any material fact; it makes determinatic'm of the action more probable or less probable than it would be without the evidence.? [See Peopie v. Scarola, 71 769]. The common de?nition of ?material evidence? is evidence of a fact in issue or probative of a fact in issue. [See Prince, Richardson on Evidence, Eleventh Edition]. The ?Molineux? rule prohibits the People from introducing evidence of a defendant?s prior crimes or bad acts when the sole purpose of such evidence is to demonstrate that the defendant had a propensity to commit the charged offense on trial. ?However, when evidence of a prior crime or bad act may be relevant to demonstrate: (1) motive; (2) intent; (3) absence of accident or mistake; (4) common scheme or plan; or (5) identity, the Court is required to determine if the probative value of the evidence outweighs any prejudice that might accrue to the defendant. Page 4 [21/2015 10:03 AM ZSBOCA-GWFAX 9149954082 Page 6 of 9 Peonle v. Lacey Snears . . _-Indictment No. 9 With these principles in mind, the Court will address ?rst the defendant?s motion to preclude certain evidenCe and secondly, the People?s cross motion seeking to introduce evidence of the defendant?s alleged prior crimes or bad acts. In light of the People?s assertion that they intend neither to introduce on their a. direct case evidence related to ?Munchausen by Proxy? nor certain medical, social media, laptop and iPad records as listed at Page ?14 of Pe0plefs Af?nnation in Opposition, the- Court denies as moot that portion of the defendant?s motionaddressing these potential items of a I . 1' ev1dence-.. Medical Reco rdsthe remaining medical records and testimonythe Peeple do seek to present I I on their direct case, the Court ?nds that such evidence is relevant and material to central issues in this case. .Such' records tend to exclude any natural cause for the death of the alleged victim. These records also explain the circumstances under which the defendant obtained certain prescriptions and medical devices allegedly feund in her constructive possession which may have contributed to the child?s medical conditi?oh at or- around the time of his demise. . These record are admissible also because they are inextricably interwoven into the fabric of this case. They provide a history of the child?s medical-issues and treatment leading up to his death. They illustrate the defendant?s role as custodian and care giver? This evidence also gives context to the actions of police at the time of the child3-s-death. Page 5 ?21/2015 10:03 AM 2SBOCA-GWFAX 9149954082 Page '7 of 9 People v. Lacey: Spears Indictment No. 14?00450-01 Any statements made by the defendant to treating medical personnel would likewise appear to be admissible to provide state of mind and/or mans rea evidence. Social Media, Telephone, Laptop and iPad Records: The People?s argument that certain text messages, phone records, on line searches, and social media entries of the defendant, many of which appear inconsistent. to medical information she had received, are probative of her state of mind and constitute evidence of mans rea is persuasive and, assuming the proper foundation can be established, admissible. It would appear that any timely on line searches about the bodily effects of sodium; any photographs posted on social media, allegedly by the defendant, depicting the child?s declining health; and any phone records linking her with an attempt to destroy evidence are clearly relevant and admissible as evidence in chief. Motinewc: .To the extent any of the abovementioned evidence constitutes prior crimes or bad acts on the of the defendant, the Court ?nds the probative value of such evidence outweighs any potential prejudice to the defendant. The evidence in question tends to establish identity; lack of accident or mistake; and intent. .. Given the nature of the evidence likely to be admitted, limiting instructions to the jury are required to assure the ?nders of fact understand the reasons such evidence is admitted Page 6 {21/2015 10:03 AM 25BOCA-GWFAX 91 49954082 Page 8 of 9 People v. Lacey Spears . Indictment No. 14-00450-01 and the weight, if any, they are permitted to give such evidence. Accordingly, the Court solicits, - from both parties, any proposed such limiting instructions that they wish the court to consider. Such instructions will be given both at the time the evidence may be offered and during any ?nal charge. For the reasons discussed above, the defendant?s motion for preclusion is in all reSpects denied and the People?s cross motion to admit Molineux and other evidence is granted. As to any individual items of evidence sought to be precluded and not speci?cally addressed in the above discussion and-decision, the defendant?s motion is also denied in full. This constitutes the opinion, decision and order of this Court. I Dated: White Plains, New York January 20, 2015 ROBERT A. NEARY 5/ ACTING SUPREME COURT JUSTICE Patricia Murphy Catalina Blanco Buitrago Assistant District Attorneys Westchester County Of?ce of the District Attorney Richard J. Daronco Courthouse 1 1 Martin Luther King Blvd. White Plains, New York 10601 David R, Sachs, Esq. Riebling, Proto Sachs, LLP Attorneys for Defendant One North Broadway, Suite 401' .White Plains, New York 10601 718 892-3951 Page 7 f21/2015 10:10 AM 2SBOCA-GWFAX 9149954082 Page 2 of 5 ?1 ii I ik. FILED 7 AND -ww r: ENTERED . CH - - .WESTCHESTER - COUNTY CLERK SUPREME COURT OF THE STATE OF NEW YORK 0F I --XII. THE PEOPLE . ., 1? I a . i "against: ?l - LACEY SPEARS, 1? r? . "1nd. No. 14-00450-01! DefendantThe defendant moves to preclude theiPeople from ?resentmg testrmony at trtal of f' 0 . Dr. Steven G. Kernie as a medical. expert. The defeddant alleges that Dr. Kcrnie?s testlmony - would constitute impmper bolstering 'of the People?s:wlt11esses including the Medical Examiner' 3? {cl and several physician; as to the pause bf death: "I;he??defendant als?largues that Dr. Kernie?s testimony would be .impermissibility cumulative. .The People contend that singe?the Evidencein this'oase is circumstantial, they are required to prove the defendant?s guilt beyohd a'reashn'able ahd'eXcludeeyery'reasonable . hypothesis of imocenhe. In order?dei?ed this burdehgth?e?Peo'ZpIe argue that the debtor?s testimony is necessary. Dr, Kernie?s testir?dny would address not only. the cause of death but AM 2SBOCA-GWFAX 9149954082 Page 3 of 5 medical procedures followed at the hospital which treated the deceased and address any concern as to whether medical treatment played a role in the death of the alleged victim. Defense counsel raised this issue in a letter to the Court received on January 16, 2015. The Court heard an oral application with all counsel present on January 20, 2015. Based on the proffer. made by the Peeple during oral argument on the defendant?s motion, this Court is satis?ed that the testimony of Dr. Kernie would not be cumulative or constitute improper bolstering. The defendant?s motion to preclude such testimony is denied. There is no prohibition against more than one witness testifying on the same issue at trial, particularly where,?as here, the witness is not expected to give identical testimony. The Medicai Examiner and the treating physicians will presumably give factual testimony as to what treatment they rendered and what procedures they followed in addition to possible expert opinion testimony. Dr. Kernie will testify generally regarding medical procedures relevant to this case and offer an opinion based upon the evidence at trial Moreover, the term ?bolstering? is generally used to describe the presentatidn of evidence of a priOr consistent statement that a testifying witness has previously made out of court that is insubstance the sarrie as hisi'her in court testimony. [See People v. Smith, 22 462]. The fact that two experts with different backgrounds may come to the same. conclusion on ?an issue at trial and testify to that conclusion is not within the realm of bolstering as the Court understands the term. In addition, as cause of death is a central issueiri this case, the Court ?nds that Dr. Kernie?s testimony on. this point would-not be cumulative. I Aocordingly, the defendant?s motion to preclude Dr. Kernie?s testimony is denied. Page 2 '21/2015 10:10 AM 2SBOCA-GWFAX 9149954082 Page 4 of 5 This constitutes the opinion, decision and order of this Court. Dated: White Plains,lNew York January 21, 2015 ROBERT A. NEARY ACTING SUPREME COURT Patricia Murphy - Catalina Blanco Buitrago Assistant District Attorneys Westchester County Of?ce of the District Attorney Richard J. Daronco Courthouse 1 1 1 Martin Luther King Blvd. White Plains, New York 10601' David R. Sachs, Esq. Riebling, Proto Sachs, LLP Attorneys for Defendant One North Broadway, Suite 401 Wte Plains, New York 10601 718 892-3951 Page 3