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Suffolk judge rules psychiatric records of Thomas Liming not admissible at trial

Thomas Liming of Islip, left, was charged in

Thomas Liming of Islip, left, was charged in November 2013 with killing Kyle Underhill, also of Islip, right, on Nov. 16, 2011. The two were classmates at Islip High School.

A judge has ruled that records of what a murder defendant told psychiatrists in court-ordered exams are off-limits at his trial, particularly because the Islip man on trial for killing a high school friend is not pursuing a psychiatric defense.

"The transcripts are not properly admissible," state Supreme Court Justice Mark Cohen said as he ruled on a prosecution request to put the records before the jury in the second-degree murder trial of Thomas Liming, 23.

Liming is accused of bludgeoning and strangling Kyle Underhill, 18, on Nov. 16, 2011, and burying him alive in a swampy grave in the woods off Brook Street in Islip. The two had been friends before they graduated earlier that year from Islip High School, but had a falling out. They had re-established contact a couple of months before the killing.

Before and during the trial, psychiatrists for both the defense and prosecution examined Liming in case he decided to pursue a defense with a psychiatric element to it. But defense attorney Joseph Corozzo said there will be no such defense, so anything his client said to the doctors should not be admissible.

"The defense in the case is justification," or self-defense, Corozzo said.

Last week, Assistant District Attorney Kathleen Kearon asked Cohen to let prosecutors use the transcripts because it showed that Liming was a depressed, angry and suicidal young man at the time -- which is how the defense has portrayed Underhill in the weeks before the killing.

Kearon noted that Liming told the psychiatrists he did not fear Underhill before that night and did not think of him as a fighter. Cohen ruled that prosecutors would be allowed to cross-examine any defense witnesses about whether they were aware that Liming did not fear Underhill.

Cohen also allowed the defense to enter into evidence a recording of the 911 call made by Liming's mother, Kim Liming, shortly after the killing, when she told police her son had been assaulted. After a police officer came to the house, an apparently uninjured Liming was telling him what happened when his mother, on the phone with an attorney, told her son to stop talking and asked the officer to leave.

Cohen said the 911 call is admissible because it shows what Kim Liming believed when she made the call and could rebut prosecution allegations that the entire Liming family helped cover up the crime.

To that end Monday, prosecutors introduced a timeline of the blizzard of phone calls the Limings made to each other, family members, friends and others in the days after the killing. Even before Kim Liming called 911 on Nov. 16, phone records show more than a dozen calls between family members after the killing.

The chart also included calls before the body was found from Underhill's mother to the Liming house, which apparently went unanswered.

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