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Suffolk judge limits defense in state-of-mind testimony in Thomas Liming murder 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 Suffolk judge Thursday limited a defense attorney's ability to present evidence about his client's state of mind without putting him on the witness stand to testify about when he killed a high school friend in Islip four years ago.

The rulings by state Supreme Court Justice Mark Cohen came in the trial of Thomas Liming, now 23, of Islip. He is charged with second-degree murder in the Nov. 16, 2011, death of Kyle Underhill, 18, who was bludgeoned, strangled and buried alive in a swampy grave. Liming's attorney, Joseph Corozzo of Manhattan, will argue that Liming acted in self-defense.

As the defense began presenting witnesses Thursday, prosecutors argued that witnesses should not be allowed to testify about Liming's state of mind. That would be impermissible hearsay, Assistant District Attorney Raphael Pearl argued. Courts normally don't allow witnesses to testify about what other people said.

The only way for the jury to hear Liming feared for his life, Pearl said, "is to put on the stand the person who had fear for his life."

Defense attorneys often are wary about having their clients testify because it exposes them to questioning by prosecutors.

Corozzo expects to call as a witness Liming's mother, Kim Liming. She called police soon after her son returned from killing Underhill in the woods off Brook Street.

In a transcript of her 911 call, she said, "My son was attacked. He was in fear of his life. He got home. He's in shock."

Pearl said the defense should not be allowed to have Kim Liming repeat her son's words instead of having him testify.

Corozzo said the call accurately depicts his client's state of mind during the attack, but Pearl said that's exactly why the jury shouldn't hear about that from the mother.

Cohen agreed that would be hearsay and ordered references to Liming's fear for his life to be redacted from the 911 recording before Kim Liming testifies.

However, Cohen did allow Corozzo to introduce further Facebook posts Underhill made in the fall of 2011 that expressed "blind murderous rage" and an urge to "slaughter anyone who looks at me the wrong way."

Earlier in the trial, prosecutors said those posts probably were related to Humans vs. Zombies, a game in which teams hunt each other with foam darts and marshmallow launchers. But Corozzo said evidence shows Underhill didn't start playing that game until after those Facebook posts.

In testimony, attorney Lindy Urso of Stamford, Connecticut, said on the night of the killing that he called Kim Liming at the request of a friend who was related to her. At the time, Thomas Liming had just started talking to a police officer.

"I instructed her to grab him, literally by the ear, and remove him from the room," Urso said during questioning by Corozzo. Urso also said he told the family to leave home until they hired a local attorney.

During cross-examination by Assistant District Attorney Kathleen Kearon, Urso said he did not advise the Limings to hide evidence. Other witnesses have testified that the Limings had the defendant's car moved and hid the clothes he wore while killing Underhill.

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