McCrary v. State ( 2023 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
TIMOTHY MCCRARY, §
§ No. 406, 2021
Defendant-Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1906013738(K)
STATE OF DELAWARE §
§
Appellee. §
Submitted: October 12, 2022
Decided: January 13, 2023
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices, and
LASTER, Vice Chancellor,1 constituting the Court en banc.
Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware,
for Appellant, Timothy McCrary.
John Williams, Esquire, Department of Justice, Dover, Delaware, for Appellee.
1
Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to
complete the quorum.
VAUGHN, Justice, for the Majority:
The Defendant-Below, Appellant, Timothy McCrary, appeals from his
convictions in Superior Court of four counts of Unlawful Sexual Contact in the First
Degree. At the time of the commission of the offenses, the defendant was an aide at
Harrington Head Start Preschool (“Head Start”). The four convictions involved
three of the preschool students. He raises three claims. The first is that the trial
court’s admission of two, prior, out-of-court statements of one of the victims under
13 Del. C. § 3513 denied him his right to confront the witnesses against him in
violation of the Sixth Amendment to the United States Constitution. The second is
that the Superior Court abused its discretion by admitting another victim’s prior, out-
of-court statement under 11 Del. C. § 3507 because the State failed to lay a proper
foundation for the statement’s admission. The third is that the prejudicial effect of
the errors deprived him of a fair trial. For the reasons that follow, we have concluded
that the defendant’s convictions should be affirmed.
FACTS AND PROCEDURAL HISTORY
Timothy McCrary, known to students as “Mr. Tim,” was a custodian,
classroom aide and bus monitor at Head Start. One of his duties as a classroom aide
was to supervise the preschool children during their naptime. At naptime, the
children rested in their classrooms with blankets for thirty minutes.
2
On the evening of May 16, 2019, J.Y.,2 a student at Head Start, was being
bathed by her mother, Sarah Ford. J.Y. was five years old at the time.
During this bath, J.Y. made an initial disclosure that she had been touched
inappropriately at school. Ms. Ford stated in her testimony at trial:
Um, I was giving both my children a bath, my son also.
And I was washing [J.Y.] and the next thing I know, like
she freaked out -- I was washing her vagina area and she
freaked out and just said, like, don’t touch me there. And
I paused and she said don’t touch me there, that’s where
Mr. Tim touches me. And just I immediately backed off
and said: What did you just say? And then she repeated
it again, and I just literally got her out of the bathtub, soap
and all, and ran to my mom’s house and had her tell my
sister what she just told me, because my mom’s house is
connected to my house. And she told my sister the exact
same thing and --"3
After this, Ms. Ford called J.Y.’s father to come home. When he arrived, he asked
J.Y. a series of questions in which he had her repeat the prior disclosure. He recorded
this conversation. In the recording, which is a little less than five minutes in length,
J.Y.’s father can be heard questioning a clearly distressed J.Y. beginning with “What
did you tell mommy today . . . when you were in the bathtub?”4 In the recording, he
and Ms. Ford implore J.Y. to tell the truth. Ms. Ford can be heard saying “we need
to know” and “You’re not going to be in trouble. I promise. If it’s the truth, you’re
2
The victims in this case are referred to by way of pseudonyms pursuant to Supr. Ct. R. 7(d).
3
App. to Opening Br. at A19.
4
Ct.’s Ex. 1 at 3.
3
not going to be in trouble.”5 J.Y. can then be heard insisting “[i]t is the truth.”6 After
more back-and-forth, J.Y. again disclosed that the defendant had touched her
inappropriately:
[J.Y.’s father]: What’d you tell mommy while you were
in the bathtub?
J: Uh.
[J.Y.’s father]: Tell me.
J: My teacher (UI) with my gina.7
…
[J.Y.’s father]: What did he do?
J: (UI) my gina.
[J.Y.’s father]: He touched your gina? Does he touch
anybody else’s gina?
S: Why does he touch your gina?
J: (UI)
S: Why did you tell me he touches your gina?
J: I don’t know.
[J.Y.’s father]: What does he do to your gina, [J.Y.]? You
have to be honest with us and tell us the truth.
J: He puts, uh, he puts, uh--
[J.Y.’s father]: He puts what?
J: He puts lotion on his hand and when he (UI) on my
gina.8
After J.Y.’s father conducted this interview, J.Y.’s parents took her to the
hospital for a physical evaluation. The police became involved and J.Y. was
formally interviewed at the Child Advocacy Center (“CAC”) by forensic interviewer
5
Id.
6
Id.
7
Id.
8
Id. at 4.
4
Courtney Sheats. This interview was recorded. In her CAC interview, the following
exchange took place:
CS: Oh, okay. And you said that the school was Head
Start, and you don’t go to school anymore. How come you
don’t go to school anymore?
JY: It ‘cause my bus driver. My bus driver did private
stuff on me.9
…
CS: Ms. Linda is a girl. Oh, okay. Okay. Well, and
[J.Y.], I take notes on this page just to help me remember
what we talk about today, okay. Tell me about the private
stuff Mr. Tim did on you?
JY: He put lotion on my hand.
CS: Put lotion on your hand.
JY: And then he rubbed it.
CS: Oh. What did he rub?
JY: He rubbed my gina.
CS: Your gina. Okay. And [J.Y.], has that happened
one time, or more than one time?
JY: More than one time.
CS: More than one time. Tell me about a time that you
remember the most.
JY: I remember all of it.
CS: You remember all of it.
Tell me the first time? Okay. And you said that Mr. Tim
put lotion on, was it your hand, or his hand, or something
different?
JY: His hand.
CS: Oh, on his hand okay.
And then what did he do after he put the lotion on his
hand?
JY: He rubbed it, and then he put it in my gina.
CS: Oh, okay. And put what in your gina?
9
Ct.’s Ex. 2 at 4.
5
JY: Lotion.10
These disclosures are consistent with those J.Y. initially made to her mother and
father.
As a part of the investigation that commenced after J.Y.’s disclosure, the
police reviewed security camera footage from classrooms at Head Start. One such
video was introduced into evidence at trial. In the beginning of the video,11 the
students settled down for their daily rest time. The defendant entered the room and
eventually sat down next to another student, A.L., while she rested on a mat with a
blanket over her. A female employee is also visible in the classroom for much of
the video. However, for a large portion of the rest time, the female employee was
in an area near the door of the classroom where furniture obstructed her ability to
see A.L. and the defendant.
In the video, the defendant remained seated next to A.L. for almost the entire
rest period. On many occasions, he placed his hand underneath A.L.’s blanket.
While his hand is not visible underneath the blanket, the angle and location of his
arm indicate his hand was in the area of A.L.’s buttocks and vagina. The defendant’s
hand visibly moved under the blanket. Furthermore, when the female employee
came closer to the defendant, he quickly removed his hand from underneath the
10
Id.
11
The video was just over an hour in length.
6
blanket every time. During a good deal of the time that his hand was under A.L.’s
blanket, the defendant can be seen looking over his shoulder in the direction of the
female employee or adjusting A.L.’s blanket so that it covered her and his hand.
The police contacted A.L.’s parents and explained what could be seen on the
video. A recorded interview of A.L. was conducted by Ms. Sheats at the CAC. In
her interview, A.L. did not disclose any inappropriate conduct on the part of the
defendant. However, A.L.’s mother testified that following the interview, A.L. told
her parents that the defendant had touched her inappropriately.
The Harrington Police Department published a press release concerning the
claimed misconduct at Head Start. After the press release was published, L.F.’s
mother reported to the police that L.F. had been abused. L.F. was four years old at
the time. She was interviewed by Ms. Sheats. The interview included the following
exchange:
CS: Okay. And who goes on the bus with Ms. Linda?
Okay. When you said that the boy teacher touches you or
gives you touches that are not okay with you, did I get that
right?
LF: Yes.
CS: Okay. Tell me about the touches that are not okay
with you.
LF: - - on my butt.
CS: On your butt. Okay. And does the boy teacher give
you touches on your butt?
LF: Mm-hm.12
12
Ct.’s Ex. 4 at 6.
7
L. F. disclosed to Ms. Sheats that these incidents occurred in the school and on the
school bus. L.F. also told Ms. Sheats that the defendant instructed her to “keep it a
secret.”13 They also discussed inappropriate touching of L.F.’s vagina:
CS: Okay. Did the boy teacher touch a different part of
your body at that time?
Your cuckoo?[14] Okay. And the time that we are talking
about, did he touch your butt -- or I’m sorry, did he touch
your cuckoo the same day he touched your butt or a
different day?
LF: On the same day.15
Allegations concerning M.G., another Head Start student, were also reported
to the Harrington police after the press release was published. During M.G.’s CAC
interview with Ms. Sheats, M.G. made disclosures indicating that the defendant had
touched her inappropriately underneath her pants, underwear, and shirt.
The defendant was charged by indictment with two counts of Sexual Abuse
of a Child by a Person of Trust in the First Degree (both as to J.Y.) and six counts of
Unlawful Sexual Contact in the First Degree (two counts each as to A.L., L.F., and
M.G.).
The defendant was tried by the Superior Court at a bench trial in September
2021, more than two years after the occurrence of the offenses. He challenged the
13
Id. at 8.
14
When discussing names for parts of the body, Ms. Sheats circled a part of the body on a diagram
and offered L.F. the option to refer to it as a “vagina or a cuckoo.” Id. at 4. L.F. decided to call it
a “cuckoo.” Id.
15
Id. at 8.
8
admissibility of the recorded statements J.Y. gave to her father and to Ms. Sheats.
The State sought their admission under 13 Del. C. § 3513. Section 3513 allows, in
pertinent part, for the admission of an out-of-court statement made by “a child victim
. . . who is under 11 years of age at the time of the proceeding concerning an act that
is a material element of the offense relating to sexual abuse”16 where “[t]he child is
found by the Court to be unavailable to testify”17 because of “[t]he child’s total
failure of memory[,]”18 and “[t]he child’s out-of-court statement is shown to possess
particularized guarantees of trustworthiness.”19 The statute sets forth 13 factors
which the trial court may consider in deciding whether a statement possesses
particularized guarantees of trustworthiness.20
On the witness stand at trial, J.Y. was unable to recall the events relevant to
the charges or give any meaningful testimony. She stated that she did not recall
where she attended preschool or a teacher named “Mr. Tim.”21 The trial judge found
that J.Y. experienced a “total failure of memory”22 and was, therefore,
“unavailable”23 as defined under Section 3513. Defense counsel did not take issue
16
11 Del. C. § 3513(a).
17
11 Del. C. § 3513(b)(2)a.
18
11 Del. C. § 3513(b)(2)a.3.
19
11 Del. C. § 3513(b)(2)b.
20
See 11 Del. C. § 3513(e).
21
App. to Opening Br. at A22.
22
Id. at A24.
23
Id.
9
with the finding that J.Y. was “unavailable.” Counsel argued, however, that the
statements were inadmissible because they lacked “particularized guarantees of
trustworthiness.”24 The trial judge overruled the defense objection and found that
both statements did possess “particularized guarantees of trustworthiness.”25 Both
statements, were, on that basis, admitted. Defense counsel did not raise the
confrontation argument the defendant now makes on appeal.
The defendant also objected to the admission of L.F.’s recorded CAC
interview. The State sought to have that interview admitted under 11 Del. C. § 3507.
On direct examination of L.F., after some preliminary questions, the prosecutor
began a line of questioning which established that L.F. rode the bus to preschool,
and that there were two grownups on the bus. L.F. explained that one was a female
who drove the bus. She testified that the other was a “boy.”26 When asked whether
the “boy” was in the courtroom, L.F. identified the defendant by pointing him out.
L.F., however, also struggled to recall details, and her testimony was not entirely
consistent. She testified that she did not like the defendant, but did not know why.
She did not remember his name. When asked whether she had ever talked with
anyone about the defendant, she answered “No.”27 When shown a photograph of
24
Id. at A29.
25
Id. at A31.
26
Id. at A59.
27
Id. at A61.
10
herself with Ms. Sheats, she testified that she did remember being in the photograph.
When asked what she was doing when the photograph was taken, she replied that
she did not know. As questioning continued, she testified that she remembered
speaking with Ms. Sheats, but did not remember what they talked about. She did
remember that she told Ms. Sheats the truth. When then asked whether she had
talked with Ms. Sheats about “bad touches”28 she said “Yes.”29 When asked whether
she talked about a person when she talked about bad touches, she responded “Yes.”30
When then asked who the person was, she responded “I don’t know.”31 Under
further questioning, she repeated that she talked about bad touches, but upon being
asked again whether she talked about bad touches, said “I don’t know.” 32 The
prosecutor was unable to elicit from L.F. a connection between the bad touches and
the defendant.
The State moved the admission of L.F.’s CAC interview at the conclusion of
the direct examination. Defense counsel objected on the ground that the State failed
to satisfy Section 3507’s foundation requirement that the witness’ direct examination
should touch on the events perceived and the out-of-court statement itself. The court
overruled the objection and admitted the recording of the interview. Defense
28
Id. at A65.
29
Id.
30
Id.
31
Id.
32
Id. at A66.
11
counsel did not ask any questions of L.F. on cross-examination.
The trial judge found the defendant not guilty of both counts of Sexual Abuse
of a Child by a Person of Trust First Degree (as to J.Y.). Under the first of those two
counts, however, the trial judge found the defendant guilty of the lesser included
offense of Unlawful Sexual Contact in the First Degree. The trial judge also found
the defendant guilty of three of the charged counts of Unlawful Sexual Contact in
the First Degree (two counts as to A.L. and one count as to L.F.) The trial judge
found the defendant not guilty of one of the counts of Unlawful Sexual Contact in
the First Degree as to L.F. and not guilty to both counts as to M.G.
DISCUSSION
I. The Defendant’s Right to Confrontation Was Not Violated
The defendant’s first claim is that the admission of the statements J.Y. made
to her father and to the CAC forensic interviewer under 11 Del. C. § 3513 violated
his right to confrontation under the United States Constitution.33 Since the
33
Opening Br. at 8. In his Opening Brief, the defendant made both a facial challenge to 11 Del.
C. § 3513 under the Confrontation Clause as well as a challenge to the application of the
Confrontation Clause to the relevant facts. Id. at 14, 18. At oral argument en banc, this Court
asked the defendant’s counsel:
So . . . let’s turn to facial unconstitutionality . . . why isn’t the fact
that the statute could be applied to nontestimonial evidence enough
to save the facial invalidity of the statute, and, if we agree, as the
State I think has conceded, that, that there is a testimonial piece of
this that as applied it might be unconstitutional, why do we even
need to reach the facial challenge? Oral Argument 17:08-17:37.
12
Confrontation Clause argument the defendant makes here was not made in the trial
court, we review this claim for plain error. “Under the plain error standard of review,
the error complained of must be so clearly prejudicial to substantial rights as to
jeopardize the fairness and integrity of the trial process.”34 “[T]he doctrine of plain
error is limited to material defects which are apparent on the face of the record;
which are basic, serious and fundamental in their character, and which clearly
deprive an accused of a substantial right, or which clearly show manifest injustice.”35
Section 3513, known as Delaware’s “tender years statute,”36 is a hearsay
exception specially crafted to allow into evidence out-of-court statements of child
witnesses or victims pertaining to abuse.37 The statute provides, in relevant part:
(a) An out-of-court statement made by a child victim or
witness who is under 11 years of age at the time of the
proceeding concerning an act that is a material element of
the offense relating to sexual abuse . . . that is not
otherwise admissible in evidence is admissible in any
judicial proceeding if the requirements of subsections (b)
through (f) of this section are met.
(b) An out-of-court statement may be admitted as provided
in subsection (a) of this section if:
In response, defendant’s counsel conceded that reaching the facial challenge was unnecessary,
stating: “Your honor . . . I know that was argued in the brief and I do think that, uh, at this point,
we don’t need to reach the facial unconstitutionality. . . of the . . . argument[.]” Id. at 17:37-17:47.
In light of this, we consider the defendant’s constitutional challenge to the application of Section
3513 to these facts, but need not address the facial unconstitutionality argument.
34
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (en banc).
35
Id.36
McGriff v. State, 781 A.2d 534, 537 (Del. 2001) (en banc), abrogated by Crawford v.
Washington, 541 U.S. 36 (2004).
37
See 11 Del. C. § 3513.
13
(1) The child is present and the child's testimony
touches upon the event and is subject to cross-
examination rendering such prior statement admissible
under § 3507 of this title; or
(2)a. The child is found by the court to be unavailable
to testify on any of these grounds:
...
3. The child's total failure of memory;
...
b. The child's out-of-court statement is shown to
possess particularized guarantees of trustworthiness.38
In short, Section 3513 requires (1) that the witness be unavailable and (2) that
the statement contain “particularized guarantees of trustworthiness” unless
otherwise admissible on the grounds of Section 3507.39 In this case, the State’s
argument that J.Y. was unavailable rested solely on the statutory ground that she
showed a total failure of memory. The defendant argues that admitting J.Y.’s prior,
out-of-court statements violated the Confrontation Clause because he “did not have
an opportunity to cross-examine J.Y. during either recorded out-of-court
38
11 Del. C. § 3513.
39
11 Del. C. § 3513(b)(2)a., b. The defendant compares the requirement of “particularized
guarantees of trustworthiness” factors outlined in 11 Del. C. § 3513 to the “reliability test” set
forth by the United States Supreme Court in Ohio v. Roberts, which was eventually abrogated by
Crawford v. Washington. Opening Br. at 15-17; see Ohio v. Roberts, 448 U.S. 56, 65-66 (1980),
abrogated by Crawford, 541 U.S. at 60, 68-69. This argument is without merit for two reasons.
First, the defendant has not asserted that the admission of J.Y.’s CAC interview and her statement
recorded by her father failed to comply with Section 3513; the defendant argues that the admission
of those statements in compliance with Section 3513 violated the Confrontation Clause. Second,
the defendant’s arguments pertaining to the statute’s similarity to Roberts are irrelevant to whether
the admission of J.Y.’s statements satisfy the requirements of Crawford. Therefore, we need not
address the “particularized guarantees of trustworthiness” factors reviewed by the Superior Court
in consideration of the admission of J.Y.’s statements under Section 3513. See 11 Del. C. § 3513.
14
statement.”40
The Sixth Amendment to the United States Constitution provides for the right
to confrontation: “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him[.]”41 The United States Supreme
Court has referred to this right as a “bedrock procedural guarantee”42 and defined its
purpose: “the principal evil at which the Confrontation Clause was directed was the
civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.43
The United States Supreme Court in Crawford v. Washington addressed the
issue of admission of out-of-court statements and their intersection with the right to
confrontation.44 In that case, the Court established two requirements for the
admission of such statements: “the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.”45 The Court elaborated in a footnote, explaining:
[W]hen the declarant appears for cross-examination at
trial, the Confrontation Clause places no constraints at all
on the use of his prior testimonial statements . . . . The
40
Opening Br. at 9, 25.
41
U.S. Const. amend. VI.
42
Crawford v. Washington, 541 U.S. 36, 42 (2004).
43
Id. at 50 (emphasis in original).
44
Id. at 40, 42.
45
Id. at 53-54.
15
Clause does not bar admission of a statement so long as
the declarant is present at trial to defend or explain it.46
The Court further explained that the Confrontation Clause applies only when
a statement is testimonial in nature.47 As the Court stated, “[w]here testimonial
evidence is at issue, however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination.”48 In Davis
v. Washington, the United States Supreme Court explained what it means for a
statement to be testimonial:
Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.49
In Ohio v. Clark, the United States Supreme Court addressed the possible
testimonial nature of out-of-court statements that were made to persons other than
law enforcement officers.50 While asserting that statements such as these are “much
less likely to be testimonial,”51 the Court applied the “primary purpose test,”52 a
46
Id. at 60 n.9
47
Id. at 68; Davis v. Washington, 547 U.S. 813, 821 (2006).
48
Crawford, 541 U.S. at 68.
49
547 U.S. at 822.
50
Clark, 576 U.S. at 246.
51
Id.
52
Id. at 246-48.
16
standard which it called “a necessary, but not always sufficient, condition for the
exclusion of out-of-court statements under the Confrontation Clause.”53 In this case,
the State concedes that J.Y.’s CAC statement was testimonial.54 We accept this
concession, and therefore have no further need to discuss when a statement is or is
not testimonial. Since the CAC statement is testimonial, Confrontation Clause
concerns must be addressed.55
The defendant’s Confrontation Clause claim must fail because J.Y. was
available for cross-examination by defense counsel. The defendant claims that the
Superior Court “denied McCrary the opportunity to cross examine [J.Y.].” 56 The
record, however, does not support this claim. In fact, J.Y. was cross-examined by
defense counsel at trial.
At trial, J.Y. took the stand and was placed under oath. After her direct
examination, the witness was passed to the defendant’s trial counsel. The following
exchange occurred between the defendant’s trial counsel and J.Y.:
BY MR. BARBER:
Q. Hi, [J.Y.].
How are you today?
A. Good.
Q. A little bit nervous?
53
Id. at 246-47.
54
Answering Br. at 21.
55
Davis v. Washington, 547 U.S. 813, 823-24 (2006). Since we ultimately hold that the
defendant’s confrontation rights were not violated by the admission of J.Y.’s testimonial CAC
statements, we need not consider the issue of J.Y.’s statements, testimonial or non-testimonial, in
her father’s recorded interview.
56
Opening Br. at 18.
17
A. (Nodded head.)
Q. Yeah.
MR. BARBER: I don’t have any other
57
questions, Your Honor.
While this cross-examination was brief, and although defendant’s trial counsel asked
no questions specifically pertaining to an inappropriate touching, that was the
tactical choice that counsel made. J.Y. was on the stand and available for cross-
examination. Defense counsel could have asked J.Y. a series of questions designed
to demonstrate her failure of memory, whether about the inappropriate touching or
about other relevant matters. Defense counsel elected not to pursue any lines of
inquiry. He chose to end the questioning when he did.
The United States Supreme Court has held that “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.”58
In United States v. Owens, the Court explained that “[o]rdinarily, a witness is
regarded as ‘subject to cross-examination’ when he is placed on the stand, under
oath, and responds willingly to questions.”59
To be sure, “limitations on the scope of examination by the trial court or
assertions of privilege by the witness” may prevent cross-examination from being
57
Id.58
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original) (citing Ohio v. Roberts,
448 U.S. 56, 72 n.12 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004)).
59
484 U.S. 554, 561-62 (1988).
18
meaningful.60 The same reasoning does not apply to a failure of memory, which the
United States Supreme Court has held does not render cross-examination
ineffective.61 The Court provided the reasoning for the distinction in Delaware v.
Fensterer:
The Confrontation Clause includes no guarantee that every
witness called by the prosecution will refrain from giving
testimony that is marred by forgetfulness . . . . To the
contrary, the Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to
probe and expose these infirmities through cross-
examination, thereby calling to the attention of the
factfinder the reasons for giving scant weight to the
witness’s testimony.62
In other words, the cross-examiner has had the opportunity to cross-examine if the
cross-examiner can ask questions that illustrate the witness’s lack of memory.
In Randolph v. State, this Court applied these principles when evaluating
whether a defendant had an opportunity to cross-examine a witness under
Crawford.63 The defendant in Randolph appealed a juvenile delinquency
proceeding, in part, on grounds that admission of the victim’s out-of-court
statements under 11 Del. C. § 3507 violated his confrontation rights.64 In support of
a Confrontation Clause argument, the defendant claimed that the victim, who
60
Id.
61
Fensterer, 474 U.S. at 21-22.
62
Id.63
See 878 A.2d 461, 2005 WL 1653635, at *2-3 (Del. June 30, 2005) (ORDER).
64
Randolph, 2005 WL 1653635 at *1-2.
19
testified at trial, “was unavailable and not subject to cross-examination because she
had difficulty answering questions and most of her responses on direct examination
were nonsensical.”65 In affirming the Family Court’s decision below in admitting
the statements, this court reasoned:
In Crawford, the United States Supreme Court did “not
expressly require any specific quality of cross-
examination….”[66] All that is required is that a defendant
have the opportunity for effective cross-examination of the
declarant, not effective cross-examination in whatever
way and in whatever manner a defendant may wish. In the
present case, [the victim] was available for cross-
examination and defense counsel made a strategic decision
not to pursue cross-examination. Moreover, the mere fact
that [the victim] had difficulty answering questions and
provided nonsensical responses on direct examination
does not make her unavailable for confrontation clause
purposes.67
This Court also has found that memory problems do not result in a witness being
unavailable for cross-examination, stating in Johnson v. State “[t]he mere fact that
[the witness]’s recollection was limited does not make her unavailable for cross-
examination for Confrontation Clause purposes.”68 Instead, this Court held that
“when a witness takes the stand at trial, and is subject to cross-examination, the
65
Id. at *2.
66
Id. at *3 (quoting Burke v. State, 484 A.2d 490, 494 (Del. 1984), abrogated by Crawford v.
Washington, 541 U.S. 36 (2004) (quoting Johnson v. State, 338 A.2d 124, 127 (Del. 1975)))
(footnote omitted).
67
Randolph, 2005 WL 1653635 at * 3 (footnote omitted).
68
878 A.2d 422, 429 (Del. 2005).
20
traditional protections afforded under the Confrontation Clause are satisfied.”69
Like the testimony of the victim in Randolph, J.Y.’s in-court testimony was
unhelpful to the defendant, but that does not mean that the defendant was denied the
right to confront her. The defendant’s trial counsel had the opportunity to question
J.Y. The record shows that J.Y. had failures of memory regarding the events at issue,
but under the decisions of the United States Supreme Court and this Court, a failure
of memory does not prevent effective cross-examination. The defendant’s trial
counsel could have questioned J.Y. in a manner that emphasized her lack of
recollection. The defendant’s trial counsel chose not to question J.Y. A decision
not to question is not the same as a denial of the opportunity for cross-examination.
We find that the defendant was not denied the right to cross-examine J.Y.
Accordingly, we find that no violation of the Confrontation Clause with respect to
the admission of J.Y.’s out-of-court statements.
II. Admission of L.F.’s Statements Under 11 Del. C. § 3507 Was Proper
The defendant’s second claim is that the Superior Court erred by admitting
L.F.’s prior, out-of-court, CAC statement under 11 Del. C. § 3507 without requiring
the State to satisfy one of the foundational requirements.70 This Court reviews “a
trial court’s ruling admitting or excluding evidence for abuse of discretion.”71 “An
69
Id. at 428-29.
70
Opening Br. at 27.
71
Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015).
21
abuse of discretion occurs when a court has exceeded the bounds of reason in light
of the circumstances, or so ignored recognized rules of law or practice so as to
produce injustice.”72
11 Del. C. § 3507 provides, in pertinent part, as follows:
(a) In a criminal prosecution, the voluntary out-of-
court prior statement of a witness who is present and
subject to cross-examination may be used as affirmative
evidence with substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply
regardless of whether the witness’ in-court testimony is
consistent with the prior statement or not. The rule shall
likewise apply with or without a showing of surprise by
the introducing party.73
The defendant contends that “the State failed to elicit any testimony from L.F.
[on direct examination] about the events she allegedly perceived.”74 This, the
defendant contends, violates the statutory foundational requirement that there should
be a direct examination of the witness who made the statement and that the direct
examination should touch upon the events perceived by the witness and the out-of-
court statement itself.75
The requirement that in order to use a Section 3507 statement at trial, there
should be a direct examination of the witness who made the statement that “touch[es]
72
Thompson v. State, 205 A.3d 827, 834 (Del. 2019) (quoting McNail v. State, 990 A.2d 398, 401
(Del. 2010)).
73
11 Del. C. § 3507(a), (b).
74
Opening Br. at 28.
75
Id. at 27 (quoting Keys v. State, 337 A.2d 18, 20 n.1 (Del. 1975)).
22
both on the events perceived and the out-of-court statement itself” was articulated
by this Court in Keys v. State.76 That case describes itself as “giv[ing] rise to the
first interpretation by this Court of” Section 3507, which at that time was a relatively
new statute.77
The defendant in that case, David M. Keys, was convicted of kidnapping,
burglary and related offenses.78 At trial, the State introduced two prior, out-of-court
statements made by Mr. Floyd Wells.79 They were introduced through the testimony
of a City of Dover police detective and through the testimony of a deputy attorney
general.80 The statements implicated the defendant in the crime.81 Mr. Wells was
present in the courtroom when his statements were introduced, but he was not called
to the witness stand by the State.82 The defendant was offered the opportunity to
call Mr. Wells to the stand but declined to do so.83 Defense counsel objected to the
admission of the out-of-court statements on the grounds that their admission violated
both his constitutional right to confront the witnesses against him and the statutory
protection of Section 3507.84
76
337 A.2d 18, 23 (Del. 1975).
77
Id. at 20.
78
Id.79
Id. at 20-21.
80
Id. at 21.
81
Id.82
Id.83
Id.84
Id.23
On appeal, this Court found it necessary to address only the objection that was
based on the language of the statute itself.85 It found that the admission of the out-
of-court statements violated the statute for two reasons: “the statutory language used
by the General Assembly and the practicalities of a fair trial.”86
The Court reasoned that since prior out-of-court statements were generally not
admissible at trial, subject to certain exceptions, and the new statute departed from
that rule, “strict construction [was] applicable”87 and “[t]here should be a preference
toward a narrow interpretation of the language in order to avoid overturning
established procedures by implication not necessary from the statutory language.”88
The Court construed the statute’s use of the word “witness” as indicating one who
testifies at trial.89 It construed the phrase “subject to cross-examination” as requiring
that there be a direct examination of the witness,90 noting that “[i]n this country
cross-examination has been tied to the content or at least the occurrence of direct
examination.”91 It noted that subsection (b) of the statute, which refers to “the
witness’[s] in-court testimony,”92 “clearly implie[d] a requirement of in-court
85
Id.86
Id.87
Id. at 21-22.
88
Id. at 22.
89
Id.90
Id. at 23.
91
Id. at 22.
92
Id. at 23, quoting 11 Del. C. § 3507(b).
24
testimony by the witness.”93 It also noted that “[t]he same implication rises from a
fourth statutory phrase which says that the Statute shall apply ‘with or without a
showing of surprise by the introducing party.’”94
The Court concluded from these parts of the statute that “in order to use the
out-of-court statements of Wells, in the situation presented by this case, the
legislative language required the production and direct examination of the witness
Wells by the prosecution.”95 The Court then set forth the following foundational
rule that continues to apply to Section 3507 statements: “We do not mean to suggest
any precise form of direct examination except that it should touch both on the events
perceived and the out-of-court statement itself.”96
After setting forth this rule, the Court discussed “the practical ebb and flow of
the criminal drama.”97 In the Keys case, the trial court permitted the State to offer
Wells’ out-of-court statements “through an officer of the law and an officer of the
Court,” and “shifted [the burden] to the defendant to call the witness,” thus making
it appear to the jury that the defense was “sponsoring the witness or refusing to
sponsor him.”98 This Court rejected that approach, stating bluntly: “That burden is
93
Keys, 337 A.2d at 23.
94
Id. quoting 11 Del. C. § 3507(b).
95
Keys, 337 A.2d at 23.
96
Id.97
Id.98
Id. at 23-24.
25
not fair.”99
Just one month later, the Court had the first occasion to apply the rule that
Section 3507 requires a direct examination of the witness that touches on both the
events perceived by the witness and the out-of-court statement itself in the case of
Johnson v. State.100 In that case, the defendant, Marion E. Johnson, was charged
with raping and assaulting a 75-year-old victim, Mrs. Florence Glass.101 Four out-
of-court statements made by Mrs. Glass were admitted at trial.102 One was given to
a doctor who treated Mrs. Glass shortly after the crime, and three were given to
police officers who interviewed her shortly after the crime.103 Mrs. Glass testified
at trial that she was “grabbed by a gloved hand from the rear” and that “after the
attack, she staggered up the street where she passed out.”104 She testified that
“except for the one brief interval when she remember[ed] somebody doing
something to her head . . . she remember[ed] nothing until late in the evening when
she was offered medicine.”105 She had no memory of the time period when she made
the first three statements.106
99
Id. at 24.
100
See 338 A.2d 124 (Del. 1975). This case is unrelated to the previously cited case Johnson v.
State, 878 A.2d 422 (Del. 2005).
101
Johnson, 338 A.2d at 125.
102
Id. at 125-26.
103
Id. at 126.
104
Id. at 126-27.
105
Id. at 127.
106
Id.
26
The Court discussed both aspects of the touching-on requirements. First, the
Court found that “[t]he requirement that the direct examination touch on the events
perceived was satisfied, although there was limited recall.”107 The Court then turned
to the requirement that the direct examination touch on the out-of-court statement
itself, finding that it was sufficient for Mrs. Glass to have said that she did not recall
anything about them:
The requirement that the direct examination touch on the
out-of-court statements was not expressly satisfied but
Mrs. Glass did indicate that she did not recall anything
during a time which includes the first three out-of-court
statements noted above. She was not asked a single
question about any of the statements by the defense. Thus,
in effect, Keys was fully satisfied as to the first three out-
of-court statements.108
In other words, the Court found that Mrs. Glass’s testimony that she could not
remember making the first three out-of-court statements touched on those statements
and fully satisfied Keys.109
In Johnson, the Court also addressed the defendant’s claim that his right to
confront witnesses was violated because Mrs. Glass was not subject to cross-
examination because of her limited recall.110 The Court rejected that claim as
follows:
107
Id.
108
Id.
109
See id.
110
Id.
27
While the Statute does require that the out-of-court
declarant be subject to cross examination, it does not
expressly require any specific quality of cross examination
or key the admission of the out-of-court statement to any
particular recall in court on the part of the witness. To the
contrary, the draftsmen of the Statute expressly
contemplated that the in-court testimony might be
inconsistent with the prior out-of-court statement. One of
the problems to which the Statute is obviously directed is
the turncoat witness who cannot recall events on the
witness stand after having previously described them out-
of-court. We conclude that there is nothing in the Statute
or its intent which prohibits the admission of the
statements on the basis of limited courtroom recall.111
The Court’s reference to a turncoat witness is telling. The Court was concerned
about a situation where a witness might claim not to remember or might even deny
having perceived an event or having made a prior statement about an event. The
Court’s reasoning indicates that if a prosecutor asks a witness about an event or a
prior statement and the witness cannot testify due to a lack of recall, that testimony
satisfies Keys’ requirements that the witness’s testimony touch on the events
perceived and the prior statement.
In 1991, the Court returned to the touching-on requirements in Ray v. State.112
The case involved a sexual offense against a victim who was five years old when the
offense occurred.113 At trial, “the victim declined to respond to the prosecutor’s
111
Id.
112
587 A.2d 439, 443 (Del. 1991).
113
Id. at 439-40.
28
request that she tell the jury what [the defendant] did to her. The victim testified that
she told her aunt and [a detective] what happened to her, but she declined to testify
about what she told them.”114 The prior out-of-court statements that she had made
to the aunt and the detective were then admitted under Section 3507.115 The Court
held that her testimony did not “touch on the event perceived” and it was, therefore,
error to admit the prior statements.116 The Court “recognized[d] the difficulty
involved in the presentation of the testimony of small children, particularly in sexual
abuse cases[,]”117 but explained that
the use of hearsay statements under section 3507 must be
carefully circumscribed in order to avoid, as occurred
here, the only direct evidence concerning the commission
of the offense against a child being presented through the
testimony of third parties relating what the victim stated
on a prior occasion. The statute becomes meaningless if
there is no opportunity to test the truth of the statements
offered.118
Ray differs from this case in that the issue was not a failure of memory; the
witness declined to answer questions.119 A refusal to testify is more akin to the
invocation of privilege or a court-imposed limitation on examination, which have
114
Id. at 443.
115
Id.116
Id. at 443-44.
117
Id. at 444.
118
Id. at 444.
119
Id. at 443.
29
been held to interfere with the constitutional right to confront witnesses120 and
should operate similarly under Section 3507. L.F. answered all questions that were
asked, but with limited recall. In addition, this case does not involve third parties
giving uncorroborated testimony about what L.F. said to them. The court saw L.F.
herself speaking in the audio/video recording of the CAC interview.
The Court most recently addressed the touching-on requirements in Woodlin
v. State, where we reaffirmed the holdings of Keys, Johnson, and Ray.121 In that
case, the defendant, Howard E. Woodlin, was convicted of Rape in the First Degree
and other crimes for sexual assaults he committed against his daughter, Sarah, and
incidents of sexual contact between Mr. Woodlin and Sarah’s mother committed in
Sarah’s presence.122 At trial, Sarah, then eight years old, testified that her father “did
something wrong to me” and she did not want to describe it “[b]ecause it’s nasty.”123
The trial court had concluded that this testimony touched upon the events described
in her earlier CAC interview.124 On appeal, Mr. Woodlin argued that no foundation
had been laid about the perceived events.125 On plain error review, this Court found
that the record supported the trial court’s finding.126 His convictions were
120
See, e.g., Owens, 484 U.S. at 561-62.
121
Woodlin v. State, 3 A.3d 1084, 1087-88 (Del. 2010) (en banc).
122
Id. at 1084-85.
123
Id. at 1088.
124
Id. at 1086.
125
Id. at 1089.
126
Id.30
affirmed.127
Our review of our jurisprudence under Keys and its progeny, and the differing
view taken by our dissenting colleagues, shows that our cases have not fully clarified
what the “touching on” requirements demand. Some of our decisions indicate that
the “touching on” requirements are satisfied by the prosecutor calling the witness to
the stand and asking questions on direct examination about those topics, regardless
of whether the witness can provide substantive testimony about them, so that the
defendant can confront and cross examine the witness on those topics without
appearing to sponsor the witness. Other decisions imply that the “touching on”
requirements mandate at least some level of substantive testimony from the witness
about the events perceived and the out-of-court statement itself.
The original Keys decision seems to have intended the former framework.
The Keys Court specifically noted that it was “not fair” 128 to require the defendant
to call the witness and appear to sponsor their testimony rather than being able to
cross-examine a witness called by the prosecutor. The Keys Court also specifically
noted that “[i]n this country cross-examination has been tied to the content or at least
the occurrence of direct examination,”129 indicating that the intent of specifying the
“touching on” requirements as necessary topics of direct examination was to ensure
127
Id.128
337 A.2d at 24.
129
Id. at 22.
31
that the prosecutor opened the door to cross examination on those subjects.
We agree with our dissenting colleagues that some of our decisions after Keys
can be read as requiring more. Most notably, in Blake v. State,130 we noted that the
fact-finder must have the ability to assess the declarant’s credibility on the witness
stand “‘in light of all the circumstances presented . . . .’”131 Continuing, the Blake
Court stated, “[t]his Court has consistently and unequivocally held “a witness’
statement may be introduced only if the two-part foundation is first established: the
witness testifies about both the events and whether or not they are true.”132 The
Blake Court explained that this level of testimony is necessary “in order to conform
to the Sixth Amendment’s guarantee of an accused’s right to confront witnesses
against him, the [witness] must also be subject to cross-examination on the content
of the statement as well as its truthfulness.”133
The Blake Court’s reference to “an accused’s right to confront witnesses
against him” reinforces that the “touching on” requirements are manifestations of
the Confrontation Clause and should be informed by Confrontation Clause
130
3 A.3d 1077 (Del. 2010).
131
Blake, 3 A3d at 1082 (quoting Johnson v. State, 338 A. 2d 124, 128 (Del. 1975)).
132
Id. at 1083 (alteration in original) (quoting Ray, 587 A.2d at 443). In this case, L.F. did testify
on the witness stand as to the truth of her out-of-court statements made to Ms. Sheats at the CAC.
The prosecutor asked L.F.: “Do you know if you told the truth when you talked to that person in
the photograph?” App. to Opening Br. at A63. L.F. responded by nodding her head and verbally
affirming “Yes.” Id.133
Blake, 3 A3d at 1083 (alteration in original) (quoting Ray, 587 A.2d at 443).
32
jurisprudence. As we have shown in our discussion of Confrontation Clause cases,
a witness need not provide substantive testimony on a topic to be subject to cross-
examination on those topics or to have the truthfulness of their testimony assessed.
A factfinder can evaluate the truthfulness of a witness who gives limited testimony
about or even says that they cannot recall anything about a statement or a series of
events.134Our decision in Johnson and our discussion of the turncoat-witness
problem confirms that a particular level of testimony is not required to lay a
foundation for introducing a prior statement under Section 3507. To reiterate, we
said in Johnson that “[o]ne of the problems to which the Statute is obviously directed
is the turncoat witness who cannot recall events on the witness stand after having
previously described them out-of-court.135 A turncoat witness claims not to recall
the prior statement (and sometimes not to recall the underlying events). Having
taken that stance, the turncoat witness claims not to be able to give any substantive
testimony about the topic. If the “touching on” requirements necessitated
substantive testimony, then a prosecutor could not introduce a prior statement of a
turncoat witness under Section 3507, contrary to what we described in Johnson as
“[o]ne of the problems to which the Statute is obviously directed.136 We believe that
134
See, e.g., Owens, 484 U.S. at 561-62; Fensterer, 474 U.S. at 21-22; Johnson, 878 A.2d at 429;
Randolph, 878 A.2d 461, 2005 WL 1653635, at *1-2.
135
Johnson, 338 A.2d at 125.
136
Johnson, 338 A.2d at 127.
33
Section 3507 permits the introduction of a prior statement by a turncoat witness
because, once the prosecutor has asked the questions and the witness has claimed
not to recall, the factfinder can evaluate the truthfulness of the testimony of the
turncoat witness, and the defendant can cross examine on those same topics without
having to call the witness and seeming to sponsor their testimony. Those principles
apply not only to a turncoat witness but to witnesses generally.
To the extent our decisions have migrated from referring to the factfinder’s
ability to evaluate the truthfulness of the witness’s testimony to implying that the
witness must testify substantively that the statement was true, we now clarify that
our later decisions should not be interpreted as imposing the latter requirement. A
turncoat witness purportedly cannot—and by definition will not—testify that a prior
statement was true, because the turncoat witness claims not to recall the statement.
What matters is that the factfinder be able to evaluate the truthfulness of the
witnesses’ testimony and that the defendant be able to question the witness on both
the prior statement and the underlying events without having to call the witness to
the stand and appear to sponsor their testimony.
We acknowledge the dissent’s concern that disturbing facts about sexual
abuse involving young children could lead to a results-driven outcome. We fully
agree with the dissent’s observation that the rules we lay down must govern how
Section 3507 applies in all cases and not just to troubling cases involving the sexual
34
abuse of young children. Our concern for how Section 3507 applies across all cases,
and particularly cases involving turncoat witnesses, drives our clarification of the
“touching on” requirements. The dissent points out that Section 3513 is available as
an alternative in cases involving child witnesses, and that point makes the
implications of our jurisprudence particularly important for other types of cases,
such as prosecutions involving turncoat witnesses. We also believe that our
clarification will provide a more fair and predictable set of rules of the road for future
cases.
Our dissenting colleagues mention three ways in which they believe that the
trial court abused its discretion by finding that L.F.’s testimony sufficiently touched
on the events perceived and L.F.’s out-of-court statement to the CAC interviewer.
The first is that L.F.’s identification of the defendant as a “grownup” “boy” who
would ride on her school bus was unaccompanied by any direct examination about
how that related to the alleged sexual assault at the preschool. However, as we have
explained above, the touching-on requirements do not require that any particular
item of testimony be linked or connected to another item of evidence.
The second is that L.F. did not adequately explain bad touches. The dissenters
argue that the prosecutor never asked L.F. what she meant by, or whether she had
ever been the victim of bad touches. Nor, they argue, did the direct examination
attempt to connect the “boy” on the bus to the bad touches. The touching-on
35
requirements do not require that a witness “explain” what she means by her
testimony or require that one element of testimony be connected by the witness to
another element of testimony. As we explain above and as we explained in Keys, no
“precise form of direct examination” is required.137
The third is that the record does not support the conclusion that when L.F.
testified that she had spoken to a “lady” about the bad touches, that the lady spoken
to was the CAC interviewer. The dissenters do acknowledge the photograph
showing L.F. and Ms. Sheats together, but contend that no one ever identified who
the other person (the “lady”) was or the circumstances under which the photograph
was taken. However, both the photograph and Ms. Sheats were in the courtroom for
all to see. After Ms. Sheats entered the courtroom to help lay a foundation for the
prior out-of-court statement, and before the court ruled on the admissibility of the
Section 3507 statement, it was clear for all to see that Ms. Sheats was the “lady” L.F.
spoke to about bad touches.
In this case, the issue before us is whether the trial judge could, in the exercise
of his discretion, have found that L.F.’s direct examination touched on the events
perceived and the prior statement itself. Because L.F’s testimony went beyond
statements to the effect that she could not recall the events or the statement and
instead provided substantive testimony that related to those topics, we conclude that
137
Keys v. State, 337 A.2d 18, 23 (Del. 1975).
36
the trial judge was well within his discretion to admit the prior statement under
Section 3507.
The trial judge found that the questions asked on direct examination did touch
on the events perceived by L.F. and on the out-of-court statement. In making his
rulings, the trial judge specifically mentioned the questions asked and L.F.’s answers
about the man on the bus, L.F.’s identification of the defendant, and testimony
regarding bad touches.
The prosecutor’s line of questioning about L.F. riding on the school bus was
clearly relevant and could be viewed as touching on the events perceived because in
her CAC statement, when asked “[w]ho gives you touches that are not okay with
you at school[,]”138 L.F. identified the person as the “boy”139 “teacher”140 who “goes
on the bus with Ms. Linda.”141 Throughout the rest of the CAC statement, the
defendant was always referred to as the “boy teacher” and was never identified by
name.
All of the questions asked on direct examination appear to have been a good
faith effort on the part of the prosecutor to draw relevant testimony from L.F. in open
court to the extent her inconsistency and limited recall would permit. L.F. identified
138
Ct.’s Ex. 4 at 5.
139
Id.140
Id.141
Id. at 6.
37
the defendant by pointing him out, identified him as a person she did not like, and
confirmed that she had spoken with Ms. Sheats about bad touches after being shown
a photograph taken when she was interviewed. In addition, during the course of
L.F.’s testimony, L.F. gave the following responses to questions posed by the
prosecutor:
• She saw the “grownup” “boy” from the bus in the
courtroom.142
• She had not “talked to anybody about” the boy
grownup.143
• She saw herself in a photograph and “remember[ed]
being in that photograph or where that photograph
was taken[.]”144
• She did not know what she was “doing when that
photograph was taken[.]”145
• She did not know or remember what she talked to
the “person in that photograph” about.146
• She “talk[ed] to the lady in that photograph about
touches[.]”147
• She did not know “what touches” she told “that
lady.”148
• She “talk[ed] about bad touches” with “that
lady.”149
• She did not know what she told “that lady about bad
touches[.]”150
142
App. to Opening Br. at A59-60.
143
Id. at A61.
144
Id. at A62.
145
Id.
146
Id. at A63.
147
Id. at A64.
148
Id.
149
Id. at A64-65.
150
Id. at A65.
38
• She did not “talk about anyone who gave [her] bad
touches” with “that lady.”151
• She told “that lady” “about a person” “[w]hen [she]
talked about bad touches[.]”152
• She did not know “who was that person” that she
“told the lady about[.]”153
• She did not know whether she and “that lady in the
photograph” “talk[ed] about school.”154
• She did not “remember anything else [she] talked to
that lady about[.]”155
• She “talked about touches” and “bad touches” with
“that lady.”156
• She did not “talk about who gave [her] bad touches”
with “that lady.”157
• She did not know whether she had “talk[ed] about
any bad touches [she] had received” with “that
lady.”158
These responses given by L.F. on direct examination can be viewed as touching on
both the events perceived and on the out-of-court statement itself.159 L.F. testified
about (1) being interviewed by Ms. Sheats; and (2) in the course of that interview,
making statements about bad touches. By her statements, it can be understood that
L.F. knew who the defendant was; did not like him; had discussed bad touches with
151
Id.
152
Id.
153
Id.
154
Id. at A66.
155
Id.
156
Id.
157
Id.
158
Id.
159
See Keys v. State, 337 A.2d 18, 23 (Del. 1975).
39
Ms. Sheats; and associated those bad touches with a person.
Based on this testimony, the factfinder could evaluate L.F.’s truthfulness.
More importantly, the defendant could cross examine L.F. about the events and the
statement to further explore her recollection and capacity for truthfulness. That is
what the “touching on” requirements demand.
L.F. had limited recall, but the Johnson decision shows that limited recall is
not an impediment. L.F. also gave simplistic answers, but that is to be expected
given L.F.’s age and maturity. The requirements that the direct examination “touch
both on the events perceived and the out-of-court statement itself” does not require
that the questions posed and the answers given be in any precise form.160 Johnson
confirms that Section 3507 does not require that the witness’s in-court testimony
include any minimum substantive content, and the testimony of one who is unable
to recall an event or a prior statement can satisfy the touching-on requirements.
Under these facts and circumstances, the trial judge did not “exceed[] the
bounds of reason in light of the circumstances, or so ignore[] recognized rules of law
or practice so as to produce injustice.”161 The admission of L.F.’s CAC statement
was not an abuse of discretion.
160
Id.161
Thompson v. State, 205 A.3d 827, 834 (Del. 2019) (quoting McNail v. State, 990 A.2d 398,
401 (Del. 2010)) (internal quotation marks omitted).
40
III. No Cumulative Error Occurred
In light of our findings that no plain error or abuse of discretion occurred with
respect to J.Y. and L.F.’s admitted out-of-court testimony, no cumulative error exists
here.
CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is affirmed.
41
TRAYNOR, Justice, concurring in part, dissenting in part, with SEITZ, Chief
Justice joining:
We concur in the Majority’s conclusion that the admission of J.Y.’s out-of-
court statement did not violate McCrary’s confrontation rights under the Sixth
Amendment and that McCrary’s cumulative-error claim lacks merit. We disagree,
however, with the Majority’s determination that the prosecution laid an adequate
foundation for the admission, under 11 Del. C. § 3507, of L.F.’s out-of-court
statement. In our view, the trial court exceeded its discretion when it admitted the
statement over McCrary’s objection. We would therefore reverse McCrary’s
conviction under Count 6—the count charging him with having unlawful sexual
contact with L.F.— of the indictment.
I
As the Majority observes, in Keys v. State, this Court established that a
witness’s out-of-court statement may be introduced under section 3507 only after
the direct examination of the witness “touch[es] both on the events perceived and
the out-of-court statement itself.”162 In 1991, in Ray v. State,163 we recognized a
further foundational requirement: the witness must offer testimony about the truth
162
337 A.2d 18, 23 (Del. 1975).
163
587 A.2d 439 (Del. 1991).
42
or falsity of the out-of-court statement. The witness need not affirm the truthfulness
of the statement but must say “whether or not [it is] true.”164
As later explained in Blake v. State,165 this two-part foundation is grounded in
the defendant’s confrontation rights under the Sixth Amendment. Harkening back
to Johnson v. State,166 the Blake Court recognized the importance of the fact-finder’s
ability to assess the declarant’s credibility on the witness stand “in light of all the
circumstances presented . . . .”167 The Court then summarized:
The Sixth Amendment requires an entirely proper foundation, if the
prior statement of a witness is to be admitted under section 3507 as
independent substantive evidence against an accused. This Court has
consistently and unequivocally held “a witness’ statement may be
introduced only if the two-part foundation is first established: the
witness testifies about both the events and whether or not they are
true.” Accordingly, in Ray we held that “in order to conform to the
Sixth Amendment’s guarantee of an accused’s right to confront
witnesses against him, the [witness] must also be subject to cross-
examination on the content of the statement as well as its
truthfulness.”168
The trial court found that the prosecution adequately laid this foundation,
citing L.F.’s testimony about a “grownup[] . . . boy”169 who rode her bus and who
she identified as McCrary and her testimony about “bad touches.” For the trial court
164
Id. at 443.
165
3 A.3d 1077 (Del. 2010).
166
338 A. 2d 124 (Del. 1975).
167
Blake, 3 A3d at 1082 (quoting Johnson, 338 A.2d at 128).
168
Id. at 1083 (alteration in original) (quoting Ray, 587 A.2d at 443).
169
App. to Opening Br. at A59–60.
43
and the Majority, this testimony sufficiently touched on the events perceived and
L.F.’s out-of-court statement to the CAC interviewer. We disagree.
First, L.F.’s identification of McCrary as a “grownup[] . . . boy” who would
ride on her school bus was unaccompanied by any direct examination about how that
related to the alleged sexual assault at the daycare center. The Majority is not
troubled by this omission because, in the CAC interview, L.F. identified her assailant
as the “boy . . . on the bus.”170 But this seems like “bootstrapping” to us; in our view,
the Court should not consult the evidence, the adequacy of whose foundation is
under consideration, to determine whether the foundation is adequate. Our cases are
clear: the appropriate foundation for the admission of a section 3507 must be laid
during direct examination.171 The Majority’s treatment of the examination of L.F.
about the boy on the bus and, in particular, its reliance on the substance of L.F.’s
section 3507 statement undermines that requirement.
Second, the direct examination—both the questions asked and the answers
given—regarding “bad touches” also falls short of the mark. To be sure, L.F. was
asked whether she had talked to a “lady” depicted in a photograph about “bad
touches.”172 Yet the prosecutor never asked L.F. what she meant by, or whether she
had ever been the victim of “bad touches.” Nor did the direct examination attempt
170
Ct. Ex. 4 at 6.
171
See, e.g., Blake, 3 A.3d at 1081; Keys, 337 A.2d at 23.
172
App. to Opening Br. at A64–66.
44
to connect the “boy” on the bus to the “bad touches.” Once again, one must consult
the CAC interview—the evidence whose foundation is supposedly being laid—to
make that connection.
Third, the State, the trial court, and the Majority are satisfied that L.F.’s direct-
examination testimony that she had spoken with a “lady” about the “bad touches”
refer to statements to Ms. Sheats during the CAC interview. But the record 173 does
not support that conclusion, that is, if the record is confined to L.F.’s direct
examination and other evidence other than the CAC interview itself. During the
direct examination, L.F. was shown a photograph that was marked as State’s Exhibit
for Identification Q. L.F. identified herself in the photograph and acknowledged that
she had talked to “another person”174 in the photograph who was later referred to as
a “lady.”175 But no one ever identified who the other person (the “lady”) was or the
circumstances under which the photograph was taken.176 Thus, the single thread that
might have otherwise held the minimal evidentiary foundation together and support
the admission of L.F.’s section 3507 statement appears to be missing.177
173
App. to Opening Br. at A59–65.
174
Id. at 63.
175
Id.176
The only reference to the photograph’s connection to the CAC interview was by the prosecutor
when she asked the court: “[c]ould I have the officer take a photo of the CAC and mark it for
identification to show the witness?” App. to Opening Br. at A62.
177
The Majority is not troubled by this perceived gap in the record because “both the photograph
and Ms. Sheats were in the courtroom for all to see” and because “after Ms. Sheats entered the
courtroom to help lay a foundation for the prior out-of-court statement, it was clear for all to see
45
II
In addressing the scantiness of L.F.’s direct-examination testimony
concerning the events that occurred at her school and her out-of-court statement, the
Majority relies on the statement in Johnson v. State178 that a witness’s “limited
courtroom recall” is not an obstacle to the admission of the witness’s prior out-of-
court statement under section 3507. To be sure, in Woodlin v. State, this Court
explicitly “reaffirmed the 1975 holdings in Keys, Hatcher, and Johnson.”179 But, as
we understand Woodlin, the “holding” to which it referred, found in the paragraph
preceding this reaffirmation of Johnson, which quotes Ray—not Johnson—is that
“a witness’[s] statement may be introduced [under section 3507] only if the two-part
foundation [identified in Keys] is first established: [by having] the witness testif[y]
about both the events and whether or not they are true.”180
Besides that, the direct examination that preceded the admission of L.F.’s
section 3507 statement was plagued by more than limited recall. She recalled
nothing of the events that formed the basis of the charges leveled against McCrary
that Ms. Sheats was the lady L.F. spoke to about bad touches.” Majority Op. at 36. We concede
that the events might have transpired in this fashion, but that it is not clear on the record we have.
The record does not show that the trial judge reviewed the photograph or that L.F.
“acknowledge[d] . . . that she participated in the CAC interview” as found by the court. App. to
Opening Br. at A74.
178
338 A.2d 124, 127 (Del. 1975).
179
3 A.3d 1084, 1088 (Del. 2010).
180
Id. (brackets in original) (quoting Ray v. State, 587 A.2d at 443).
46
and nothing about—or whether she had even participated in—the CAC interview.
She was not even asked whether she recalled the events that transpired at her school
or whether she had ever interacted with McCrary. This testimony stands in contrast
to the witness’s testimony in Woodlin. There, the child victim remembered talking
to a specifically identified CAC interviewer about “My daddy”181 and why she had
talked to the interviewer: “Because he did something wrong to me.”182 And when
she was asked on direct examination why she was reluctant to explain what her father
had done, she replied: “Because it’s nasty.”183 Thus, the direct-examination
testimony of the victim in Woodlin touched upon both the events surrounding the
defendant’s alleged criminal conduct and her out-of-court statement. Here, L.F.’s
direct-examination testimony touched on neither.
But the Majority would excuse the absence of direct-examination testimony
from L.F. as to the events at the preschool facility or the CAC interview by drawing
an analogy between L.F. and a “turncoat” witness. This analogy is, in our view,
inapt.
Admittedly, Johnson discusses the role section 3507 can play in the case of a
“turncoat” witness, a classification that includes, in the words of Johnson, a “witness
who cannot recall events on the witness stand after having previously described them
181
Woodlin, 3 A.3d at 1088.
182
Id.
183
Id.
47
out-of-court.”184 The Majority seizes on this description but then expands it to
include a witness who “claims not to recall the prior statement (and sometimes not
to recall the underlying events).”185 And going one step further, the Majority writes
that “[h]aving taken that stance, the turncoat witness claims not to be able to give
any substantive testimony about the topic.”186 We respectfully submit that this takes
Johnson’s “turncoat witness” remark out of context and ignores the traditional
definition of “turncoat witness” and the experiential understanding of the problems
such a witness creates.
First of all, Johnson’s reference to a “turncoat” as one “who cannot recall
events on the witness stand,”187 which by itself does not suggest total memory
failure, feigned or actual, is sandwiched between two sentences that inform its
meaning. Immediately before the reference, Johnson observes that “the draftsmen
of [section 3507] expressly contemplated that the in-court testimony might be
inconsistent with the prior out-of-court statement.”188 And immediately following
the reference, the Court concludes that “there is nothing in the Statute or its intent
which prohibits the admission of the statements on the basis of limited courtroom
184
Johnson, 338 A.2d at 127.
185
Majority Op. at 33.
186
Id.187
Id.188
Johnson, 338 A.2d at 127. (emphasis added).
48
recall.”189 Thus, from our perspective, Johnson’s hypothetical “turncoat witness”
might change her story on the stand or suffer from limited—even materially
deficient—recall. But that does not come close to describing L.F.’s direct
examination during which she was not asked about what happened at the preschool
facility or during the CAC interview.
To be clear, we readily acknowledge that section 3507 is appropriately used
to counter a witness whose recollection of events takes an unfortunate turn from the
perspective of the party who called the witness to the stand. But the turncoat does
not typically suffer from a total lack of recall about both the underlying events and
her out-of-court statement as happened here. Instead, the run-of-the-mill turncoat is
“[a] witness whose testimony was expected to be favorable but who becomes
(usually during trial) a hostile witness.”190 Even the forgetful turncoat witness
referred to in the Johnson passage quoted by the Majority has some ability, albeit
“limited,”191 to recollect the events, even if it is to deny that they occurred as
originally reported. In any event, in this case, L.F. was not a turncoat witness and
was not even asked questions on direct examination sufficient to test her memory of
the underlying events and her out-of-court statement.
189
Id. (emphasis added).
190
BLACK’S LAW DICTIONARY 1921 (11th ed. 2019).
191
Johnson, 338 A.2d at 127.
49
III
Our partial dissent echoes the concern this Court expressed over 30 years
ago in Ray:
We recognize the difficulty involved in the presentation of the
testimony of small children, particularly in sexual abuse cases.
Wheat v. State, Del. Supr., 527 A.2d 269, 275 (1987). We have also
ruled that there need not be consistency between the in-court
testimony of the witness and the prior out-of-court statement.
Johnson v. State, Del. Supr., 338 A.2d 124, 127 (1975). But the use
of hearsay statements under section 3507 must be carefully
circumscribed in order to avoid, as occurred here, the only direct
evidence concerning the commission of the offense against a child
being presented through the testimony of third parties relating what
the victim stated on a prior occasion. The statute becomes
meaningless if there is no opportunity to test the truth of the
statements offered.192
This is not to say that the out-of-court statements of a child victim, who suffers
a memory loss or whose ability to testify is otherwise impaired, should not be
admissible. Indeed, this case itself demonstrates that 11 Del. C. §3513(b)(2)—a
statute explicitly designed to facilitate the use of the out-of-court statements of
youthful abuse victims—can be effectively employed under certain circumstances
to meet the difficulty identified in Ray.193
192
Ray, 587 A.2d at 444.
193
We note that, when the State offered L.F.’s out-of-court statement under section 3507 and
McCrary objected, the State argued that “if the Defense’s argument is that [L.F.] has not touched
upon the actual event, the defendant touching her, the State would argue that there is a complete -
- a total failure of memory of that part.” App. to Opening Br. at A71. This, according to the State,
made the statement admissible under section 3513(b)(2). The trial court, however, did not make
50
Oddly enough, however, the Majority’s treatment of section 3507’s “touching
upon” requirement, which is incorporated in section 3513(b)(1), renders section
3512 (b)(2) superfluous. Why, after all, would a party avail itself of section
3513(b)(2) if its child witness’s total failure of memory creates no impediment to
the admission of her out-of-court statement under section 3507 or section
3513(b)(1), a result apparently countenanced by the Majority?
Leaving that curious result aside, section 3507, would ordinarily be available
so long as the trial court “carefully circumscribe[s]” its use by requiring that the
prosecution lay a proper foundation on direct examination of the child witness before
the section 3507 statement is received in evidence. This is particularly important
because section 3507, unlike section 3513, is a statute of general application; it
applies to all criminal prosecutions, not just those involving victims of tender years.
Relaxing the foundational burden— and we fear that the trial court’s and the
Majority’s decisions could have that effect—may seem beneficial in the context of
this case in which, because of their youth, the victims were helpless and, at best, only
marginally capable of testifying in court. But the rules we lay down will apply to
the next case in which section 3507 is invoked and the next one after that. It is that
potential consequence that has prompted our dissent.
the factual findings required under section 3513(b) to support admission of the statement under
section 3513(b)(2).
51