Stevenson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOEL R. STEVENSON, §
§ No. 36, 2016
Defendant-Below, §
Appellant, § Court BeloW_Superior Court
§ of the State of DelaWare
v. §
§ Cr. ID No. 1407001616
STATE OF DELAWARE, §
§
Plaintiff-Below, §
Appellee. §
Submitted: September 28, 2016
Decided: October 11, 2016
Before HOLLAND, VALIHURA, and SEITZ, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Offlce of the Public Defender, Wilmington, Delaware,
Attorney for Defendant-Below, Appellant.
Karen V. Sullivan, Esquire, Department of Justice, Wilmington, Delaware, Attorney
for Plaintiff-Below, Appellee.
HOLLAND, Justice:
Defendant-BeloW/Appellant, Joel Stevenson, appeals from a final judgment
for convictions of Unlawful Sexual Contact First Degree;1 Unlanul Sexual Contact
Second Degree;2 and two counts of Sex Offender Unlawful Sexual Conduct With a
Child.3 Stevenson argues on appeal that the trial court abused its discretion in
admitting, over defense counsel’s objection, the out-of-court consistent videotaped
statements of three child Witnesses in rebuttal to the defense’s alleged charge of the
State’s improper influence over the child Witnesses’ trial testimony. Specifically,
Stevenson argues that the trial court committed reversible error by admitting the
videotaped statements presented by the State in rebuttal because the statements: (l)
Were not admissible under DelaWare Uniform Rules of Evidence (“D.R.E.”)
801(d)(1)(B) because defense counsel made no charge of improper influence; (2)
Were not admissible under 11 Del. C. § 3507 because of their cumulative nature; and
(3) should have been redacted before being admitted into evidence.
We have concluded that Stevenson’s arguments are Without merit. The record
reflects that, in light of their cumulative nature, the State did not seek to introduce
the children’s prior out-of-court statements during its case-in-chief, pursuant to ll
Del. C. § 3507. However, once defense counsel began to challenge the child
1 11De1. C. § 769.
2111)@1. C. § 768.
3 11De1. C. § 777A.
witnesses’ testimony on cross-examination, it became entirely appropriate for the
State to admit the videotaped statements in rebuttal to show that the children were
not coached. The trial judge gave defense counsel the opportunity to review the
redacted statements for further redaction and defense counsel approved the redacted
videotapes without objection. Therefore, defense counsel waived Stevenson’s
opportunity to challenge the issue of redaction on appeal.
F acts
In June 2014, l3-year-old B.W., her then 9-year-old sister, A.O., and her then
ll-year-old brother, J.O.,"' traveled from Oklahoma to Newark, Delaware to stay
with their Grandma Marni.5 Stevenson is Grandma Marni’s son who lived With her
in Delaware. At the time of the children’s June 2014 visit, Stevenson was a
registered sex offender. The children had previously spent time during summers
with Grandma Marni, and none of the children ever had any problems with
Stevenson.
Although the children usually slept in the guestroom upstairs, on the night of
June 28, 2014, Grandma Marni had houseguests occupying the guestroom. That
night, B.W. and J.O. slept on opposite sofas in the living room downstairs and A.O.
slept on a sofa in the adjacent sunroom. Before going to sleep, B.W.-who was
4 Pseudonyms have been assigned for the child witnesses
5 Grandma Marni is the children’s mother’s grandmother through marriage
3
already uncomfortable because Stevenson had made a comment to J.O. about B.W.’s
developing body_asked J.O. to keep an eye on A.O. in the sunroom. J.O., while
using the computer in the sunroom as A.O. slept, noticed Stevenson “hovering” over
A.O. J.O. Went to the living room, told B.W. what he observed, and then returned
to the sunroom to continue watching over A.O. until Stevenson was gone and J.O.
went to sleep on the couch in the living room.
Later that night, A.O. was awakened by Stevenson “poking” at her vaginal
area, from the outside of her pajama pants, with his fmger. A.O. got up from the
sofa and went to the computer to play a game. When Stevenson sat down next to
A.O., she went upstairs and got in bed with her Grandma Mami.
B.W. was also awakened by Stevenson touching her that night. B.W. had
been wearing a tank top and bra to sleep in. When B.W. was awakened, her clothes
were pulled down to her stomach and Stevenson was touching her breasts. As soon
as Stevenson saw that B.W. was awake, he ran upstairs. B.W. saw J.O. sleeping on
the other sofa in the living room but did not see her younger sister, A.O., sleeping
on the sofa in the sunroom.
B.W. texted her mother, Melinda Wade, about Stevenson touching B.W.
Wade, however, did not respond because she was asleep back in Oklahoma. B.W.
later told Grandma Marni what had happened. A.O. also told Grandma Marni what
Stevenson had done to her.
On July 2, 2014, police arrested Stevenson. That same day, B.W., A.O., and
J.O. each made statements to police regarding the underlying incidents The police
videotaped the statements A grand jury indicted Stevenson_first on August 18,
2014, and then by a superseding indictment on July 20, 2015-on one count of
Unlawful Sexual Contact First Degree;6 one count of Unlawful Sexual Contact
Second Degree;7 and two counts of Sex Offender Unlawful Sexual Conduct with a
Child.8
Prior Statements Admitted
Stevenson’s first trial began on March 31, 2015. However, on April 1, 2015,
the trial judge declared a mistrial on grounds that the two charges of Sex Offender
Unlawful Sexual Conduct with a Child should have been severed. On May 12, 2015,
upon the State’s motion, the trial judge ordered a bifurcated trial.
On August 4, 2015, a jury trial began on the charges of first and second degree
unlawful sexual contact; the first phase of the bifurcated trial. During its case in
chief, the State presented the testimony of B.W., A.O., and J.O._each under the age
of 18_and the testimony of their mother, Melinda Wade. Each child testified at
trial, almost verbatim with their pre-trial statements Therefore, in light of their
6 11 Del. C. § 769.
711De1.C. § 768.
8 11 Del. C. § 777A.
cumulative nature, the State did not seek to introduce the children’s pre-trial
videotaped statements during its case-in-chief, pursuant to 11 Del. C. § 3507.
However, after considering defense counsel’s cross-examination of Wade and each
of the child witnesses, the State moved to admit the out-of-court videotaped
statements under 11 Del. C. § 3507 and/or D.R.E. 801(d)(1) as relevant to rebut
defense counsel’s insinuation that the State improperly influenced the witnesses’
testimony.
Defense counsel objected to admitting the videotaped statements on the basis
that they contained cumulative evidence which only served to bolster the witnesses’
testimony. The trial judge ruled that the statements were admissible for three
reasons: first, defense counsel touched upon the videotaped statements in its cross-
examinations, making the statements relevant; second, the statements were
admissible under D.R.E. 801(d)(1) as prior consistent statements presented to rebut
defense counsel’s suggestion of improper influence; and third, the statements were
admissible under ll Del. C. § 3507.
The trial judge did not indicate if admission of the statements was proper
based on the aggregate of the three reasons or if each reason was an independent
ground for the admission of the statements In making its ruling, the trial court noted
its authority to exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence under D.R.E. 611(a).9 Thereafter, the State
recalled each child witness to retake the stand, laid a foundation for the admission
of each child’s videotaped statement, and then played the statements for the jury.
Verdict and Sentence
On August 6, 2015, the jury found Stevenson guilty of both the first and
second degree charges of unlawful sexual contact. Thereafter, during the second
phase of the bifurcated trial, the parties stipulated to Stevenson’s status as a
registered sex offender at the time of the underlying incidents The jury then found
Stevenson guilty of the remaining two charges of Sex Off``ender Unlawful Sexual
Conduct with a Child.
On January 8, 2016, the trial judge sentenced Stevenson to a total of 61 years
at Level V incarceration suspended after 50 years Stevenson filed a notice of appeal
to this Court.
Standard of Review
Where an objection was raised at trial, this Court reviews “a trial court’s ruling
admitting or excluding evidence for abuse of discretion.”10 If we conclude that the
9 D.R.E. 611(a) provides, “The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.”
10 Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015); Manna v. State, 945 A.2d 1149, 1153 (Del.
2008).
7
trial court abused its discretion, reversal is only required if “‘there was significant
prejudice to deny the accused of his or her right to a fair trial.”’11 Absent an objection
at trial, this Court reviews an evidentiary issue only if the ruling constitutes plain
12
error affecting substantial rights We review de novo claims of constitutional
violations relating to a trial court’s evidentiary rulings13 Evidentiary issues that are
affirmatively waived are not reviewable on appeal.14
Defense Counsel “Opened the Door”
The trial judge first reasoned that admission of the videotaped statements was
proper because defense counsel had “opened the door” to their introduction by
focusing on the videotapes during the cross-examination of the State’s witnesses.15
The trial judge found that because the videotapes “were touched on a lot in cross,”
defense counsel had put the videotapes “into play.”
11 Mz'lligan, 116 A.3d at 1235 (quoting Johnson v. State, 878 A.2d 422, 425 (Del. 2005)). See also
D.R.E. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected.”).
12 Del. Supr. Ct. R. 8; D.R.E. 103(d); Wainwrz'ght v. State, 504 A.2d 1096, 1100 (Del. 1986).
13 Mz'lligan, 116 A.3d at 1235 (citing Smith v. State, 913 A.2d 1197, 1234 (Del. 2006)).
14 See Kz``ng v. State, 239 A.2d 707, 708 (Del. 1968) (explaining difference between the failure to
object and an affirmative waiver).
15 A45 (“I think [trial counsel] opened the door to the videotapes I was sitting here during the
cross-examination and there was a discussion at length with each of the witnesses as to the
videotapes, not only their own videotape but the videotapes of others . . . . And if some party
wished to say . . . the defense has opened the door with respect to the videotapes . . . the defense
has made it relevant, I think there’s a good argument to that effect.”) (emphasis added).
8
Stevenson does not seriously dispute the trial judge’s finding of relevance.
Stevenson makes only one reference to relevance in his Corrected Opening Brief,
arguing: “[The trial court] erroneously found the out-of-court statements admissible
because [trial] counsel’s cross examination made the statements relevant . . . .”
DelaWare law “recognizes the evidentiary principle of ‘opening the door.”’16
“The ‘opening the door’ theory is premised upon considerations of fairness and the
truth-seeking function of a trial.”17 “Put simply, ‘opening the door’ is a way of
saying one party has injected an issue into the case, and the other party should be
able to introduce evidence to explain its view of that issue.”18
The record reflects that the trial judge did not abuse his discretion when he
found that Stevenson had “opened the door” to the relevance of the videotaped
statements The first mention of a videotape, in general, was by defense counsel
during his opening statement, in which he stated that “a memory is not a
videotape.”19 Then, during cross-examination of the State’s first witness_Melinda
Wade, the children’s mother_defense counsel inquired as to whether Wade
watched the videotaped statements20 Thereafter, defense counsel questioned each
16 smirh, 913 A.2d at 1239.
17 Id_
18 Id. See also Tucker v. State, 1986 WL 17446, at *1 (Del. Sept. 12, 1986) (“The rule operates to
prevent a defendant from successfully excluding inadmissible prosecution evidence and then
selectively introducing pieces of this evidence for his own advantage.”).
19 Al3.
20 A18.
of the child witnesses on cross-examination as to their review of the videotaped
statements with the State in preparation for trial. Accordingly, the record supports
the trial judge’s finding that Stevenson’s defense counsel had put the videotaped
statements “into play.”
Nevertheless, the fact that defense counsel “opened the door” to the
videotaped statements is not an independent ground for their automatic admission
into evidence. The United States Supreme Court explained in T ome v. United
States,21 the fact “[t]hat certain out-of-court statements may be relevant does not
dispose of the question whether they are admissible.”22 Here, as the State
acknowledged,23 the relevant, videotaped statements contained cumulative evidence
because they provided essentially Verbatim the same information as the in-court
testimony of each child witness ln Richara’son v. State,24 this Court noted, in dicta,
where “witnesses testified in detail [almost verbatim] about the same incidents
reported to the . . . interviewer, the [interview] tapes would appear to be cumulative
and subject to being excluded on that ground.”25
21513 U.s. 150 (1995).
22 Ia'. at 164.
23 A43.
24 43 A.3d 906 (De1.2012).
25 Id. at 909 (emphasis added).
lO
Admissibility Under D.R.E. 801(d)(1)(B)
To distinguish the Richardson dicta, the State argued, and the trial judge
agreed, that admission of the relevant, videotaped statements was proper under
D.R.E. 801(d)(1)(B)_even if they were almost verbatim to the witnesses’ direct
trial testimony_because “there was clearly a notion of improper influence that was
brought up [by trial counsel]” during cross-examination of the State’s witnesses26
Under the Delaware Uniform Rules of Evidence, hearsay evidence is
inadmissible unless subject to an exception. D.R.E. 801(d)(1)(B) provides that a
prior statement by a witness is not hearsay if “[t]he declarant testifies at the trial . . .
and is subject to cross-examination concerning the statement, and the statement is .
. . consistent with his testimony and is offered to rebut an express or implied charge
against him of recent fabrication or improper influence or motive.”27
ln this case, the witnesses testified at trial, were subject to cross-examination,
and their out-of-court statements were consistent with their in-court testimony.
Stevenson, however, argues that two of the requirements of D.R.E. 801(d)(1)(B)
were not satisfied in this case. First, Stevenson argues that there was no charge of
improper influence Second, Stevenson argues that even if there was a charge of
26 A44-A45.
27 D.R.E. 801(d)(1)(B) (emphasis added). See Tome, 513 U.S. at 156_57 (citing the Federal Rules
of Evidence).
ll
improper influence, the out-of-court statements remained inadmissible because they
lacked any probative significance as rebuttal evidence
Improper Influence
ln order for a trial court to f1nd a charge of improper influence, there must be
“a suggestion that the Witness consciously altered his testirnony.”28 Stevenson
contends that there was no charge by defense counsel of “conscious alteration” and,
consequently, no charge of improper influence Rather, in an attempt to distinguish
defense counsel’s strategy from alleging a willful alteration of an account of events,
Stevenson frames his defense counsel’s defense strategy as challenging the memory
of each child witness
In support of this distinction, Stevenson cites the Third Circuit’s decision in
United States v. Frazier.29 In that case, the Third Circuit Wamed against using the
analogous federal version of D.R.E. 801(d)(1)(B) to “allow the admission of what
would otherwise be hearsay every time a [witness’] credibility or memory is
challenged” because, under such a practice, “cross-examination would always
transform [the prior consistent statement] into admissible evidence.”30 In Frazier,
the court noted that “[t]he line between challenging credibility or memory and
28 United States v. Frazier, 469 F.3d 85, 88 (3d Cir. 2006) (quoting United States v. Casoni, 950
F.2d 893, 904 (3d Cir. 1991)).
29 Id.
30 Id. at 89 (intemal quotation marks and citations omitted).
12
alleging conscious alteration can be drawn” by determining “whether the cross-
examiner’s questions reasonably imply [a charge of improper influence].”31
Stevenson relies on defense counsel’s opening statement to suggest that defense
counsel meant only to challenge the children’s memory:
Ladies and gentlemen, you are being asked to determine
the truth of the events that occurred at the Stevenson
household in June of 2014, about a year ago. The goal of
discovering the truth of past events can be hampered by a
process that occurs when human beings attempt to acquire
information, to retain it and then to retrieve it, because a
memory is not a videotape.
And we trust that after you . . . listen objectively to the
evidence, and consider the fallibility of perception and
memory and trying to recreate things a year after they
happen, we’re going to ask that you acquit Mr. Stevenson
of these charges.32
However, an examination of the entire record33 does not support Stevenson’s
argument for four reasons First, Stevenson’s characterization of defense counsel’s
defense strategy considers only portions of the record. Indeed, some parts of the
record tend to show that defense counsel sought to challenge the fallibility of the
children’s memory but other parts of the record, and the record as a whole, illustrate
31 ld-
32 A13 (emphasis added).
33 See United States v. Asher, 854 F.2d 1483, 1499 (3d Cir. 1988) (reviewing the entire record to
determine whether there had been a charge of fabrication).
13
an argument that the children’ s fallible memories were improperly influenced by the
State For example, a different portion of defense counsel’s opening statement
explained:
You’re going to hear [B.W.], you’re going to hear [A.O.],
and you’re going to hear [J.O.], they’re going to identify
Mr. Stevenson. They’re going to be sincere, they’re going
to be sympathetic, they’re going to appear certain. But
[the defense] will show that the circumstances of the
events and processes that lead us here today will make it
dijicult for you to believe their testimony beyond a
reasonable doubt.34
Second, at side-bar during cross-examination of Melinda Wade, the children’ s
mother, defense counsel confirmed that its defense strategy would be aimed at
attacking all of the witnesses’ testimony as having been improperly influenced:
[Defense Counsel]: I’ll tell the court where I’m going. I
want to get into the, quote, [p]reparation slash coaching,
because I think of the witnesses, because l know that’s
what occurred - -
The Court: Just be careful, counsel.35
Third, defense counsel’s cross-examination of the State’s witnesses attempted
to exploit the “events and processes” used by the State in preparing the witnesses,
i.e., allowing the children to watch their videotaped statements and coaching the
34 A13 (emphasis added).
35 Al 6.
14
witnesses’ testimony. For example, defense counsel’s cross-examination of Wade
began:
[Defense Counsel]: Ms. Wade, when did you and the
children arrive here in Delaware for this trial?
[Wade]: Yesterday night.
[Defense Counsel]: About what time?
[Wade]: About nine-ish.
[Defense Counsel]: Since that time have you met with
Lisa [Rapko, a social worker at the Attorney General’s
Office] or anybody else from the Attorney General’s
Office to prepare about testifying today?
[Wade]: Yes.
[Defense Counsel]: And when did you meet with people
nom the Attorney General’s Office?
[Wade]: Last night and this morning.36
Defense counsel then questioned Wade about her conversation the night
before trial with the State prosecutor and social worker regarding Wade’s in-court
testimony. Specifically, defense counsel asked:
[Defense Counsel]: And did, was there any discussion
about what they were going to ask you?
[Wade]: Yes.
[Defense Counsel]: And did they tell you what to say?
36 A17-A18.
15
[Wade]: No.
[Defense Counsel]: Okay. Did they show you any
videotapes?
[Wade]: No.
[Defense Counsel]: Did there come a time where they
brought the children up to the room?
[Wade]: Yes.
[Defense Counsel]: And did [the prosecutor] or [the social
worker], or both of them talk to your children?
[Wade]: Yes.
[Defense Counsel]: Did they do that one at a time or all
together?
[Wade]: One at a time
[Defense Counsel]: And were you present when they
talked to your children?
[Wade]: No.
[Defense Counsel]: Okay. So you don’t know what the
discussion was?
[Wade]: No.37
37 A18.
16
Defense counsel continued with a similar line of questioning as to Wade’s
conversation on the morning of trial with the State prosecutor and social worker
regarding Wade’s in-court testimony.38 As the State points out in a footnote of its
Answering Brief,39 the trial transcript of the cross-examination of Wade includes
more than 50 questions concerning the State’s trial preparation of Wade and her
children.
Defense counsel then asked questions of this nature during cross-examination
of each child witness For example, the State called B.W. as its second witness This
time, the State asked about the videotaped statements
[The State]: [B.W.], this morning did you watch a
videotape of yourself?
[B.W.]: Yes.
[The State]: And on the videotape were you talking to
Detective Burse?
[B.W.]: Yes.
[The State]: And you watched that [videotape] this
morning to prepare for trial?
[B.W.]: Yes.
[The State]: Okay. This incident happened last year?
[B.W.]: Yes.
38 AlS-Al9.
39 Ans. Br. at 8 n.5.
17
[The State]: Right. So like a little more than a year ago?
[B.w.]; Yeah.
[The State]: Do you feel like you remember what
happened last year during that incident pretty well?
[B.W.]: Yeah.
Nevertheless, defense counsel further explored the videotaped statements on
cross-examination, asking a number of questions about exactly what B.W. had
discussed with the State prosecutor and social worker, including:
And so you knew today the questions she asked you
over here, you knew she was going to ask you because
she asked you those same questions today, right?
Did she ever have you - when you answered it, did she
ever - when she asked you a question did she ever
suggest to you what an appropriate answer might be?
And did she help you prepare the answer?
Did she coach you on how, on the type of questions I
was going to ask you?
Did she talk specifically about what your testimony
was going to be?
During a break after defense counsel’s cross-examination of B.W., the State
informed the trial court that it intended to call the social worker to rebut the fact that
18
“the jury has been left with the impression that the witnesses have been coached.”4°
The trial court instructed defense counsel not to use the word “coach.”
Fourth, after the admission of the videotaped statements defense counsel’s
closing argument continued to pursue the improper influence strategy. Defense
counsel argued in closing that the jury should not believe the testimony of the three
children and attacked the children’s “means of knowledge” about the crimes
Specifically, defense counsel argued:
And then we look at means of knowledge Means of
knowledge, part of it is, well, [the children] were there,
they got knowledge from being there Other means of
knowledge [include], talking to each other about [the
crimes], and that affecting [their] memory and [their]
perception. Means of knowledge of the questioning
through the officer, the taped statement, There was a taped
statement [and] whenever there was an inculpatory
statement, you heard the officer repeat it, reinforcing it in
the child’s mind. At the end of the case [the officer]
recapped everything to reinforce it, I suggest. And so you
have that as a means of knowledge
You have the means of knowledge of talking to [their]
family about [the crimes] [and] the means of knowledge
of talking to the Attorney General’s Office and their staff
when [the children] came here a day or two ago. And
speaking at night and then corning in and speaking about
[the crimes], or looking at the tape in the morning, and the
tape kind of reminding them or reinforcing really what [the
State] wants [the children] to say. So those things relate
to means of knowledge
40 A30.
19
So the kids aren’t coming here fresh speaking
independently without having any, not having considered
this in the past year, they’ve had the officer, they’ve had
their family, they’ve had staff from the Attorney General’s
Office, and they’ve had the tape So when they testify
here, are they testifying about what they saw on the tape,
or are they testifying independently based upon their
knowledge?
Defense counsel used his closing argument to connect his contention that the
children’s testimony was not credible to the fact that each had watched his or her
videotaped statement and had been coached by the State
Despite Stevenson’s attempt to reframe the record as challenging the
witnesses’ memory, the trial transcripts are replete with examples of questions and
statements by defense counsel that could reasonably be taken by a jury as implying
that the State improperly influenced the children’s testimony.41 Accordingly, the
record supports the trial court’s finding of a charge of improper influence by defense
counsel.
Rebuttal Evidence Probative
Stevenson next argues that even if defense counsel insinuated a charge of
improper influence, the Videotaped statements remained inadmissible under D.R.E.
801(d)(1)(B) because the statements did not rebut that charge Rather, according to
Stevenson, the statements did nothing more than repeat what the children said on a
41 See Frazier, 469 F.3d at 89.
20
prior occasion. Stevenson’s characterization of the videotaped statements as mere
repetitive statements disregards the fact that “by definition, a prior consistent
statement inherently repeats [some] evidence that has already been heard at trial.”42
The videotaped statements albeit cumulative, were used by the State to rebut
defense counsel’s strategy of attacking the children’ s credibility based on allegations
of the State’s improper influence The State relied on the videotaped statements in
its closing argument to respond to those very allegations:
Now, there was some suggestion that the Department of
Justice influenced the testimony of these witnesses Well,
ladies and gentlemen, you heard testimony from [the State
social worker] that no representative from the Department
of Justice spoke to those children until March 31, 2015.
That is nearly nine months after they spoke to the police
and made the statements that they did on those tapes And
you can compare those statements and ask yourselves are
they consistent? Does it sound coached? Did [the
children] say essentially the same things? And you will
have to determine whether or not you find those statements
credible43
Similarly, the State argued in its rebuttal:
The events happened June 28th; the children are
interviewed on July 2nd. Then there’s no contact between
the Department of Justice . . . with those children until
March 31st of2015.
43 Adams v. state, 124 A.3d 38, 46 (Del. 2015).
43 A66.
21
There’s also a suggestion that the officer recapped what
the children said [in their videotaped statements] and that
that reinforced their memory. But, again, you watched the
tapes didn’t [the children] say it first? [The children]
came up with those words44
The record reflects that defense counsel charged improper influence and that
the State used the videotaped statements to rebut that charge Accordingly, the trial
judge correctly ruled that the videotaped statements were admissible under D.R.E
801(d)(l)(B). Therefore, it is unnecessary to address the admissibility of the
statements as rebuttal evidence under 11 Del. C. § 3507.
Redaction of Videotaped Statements
Stevenson’s final argument on appeal is that the redacted versions of the
videotapes contained unduly prejudicial statements regardless of whether the
videotaped statements were admissible under D.R.E. 801(d)(1)(B) or § 3507.
According to Stevenson, the redacted videotapes contained the interviewer’s
improper endorsements of the children’ s credibility; interjection of sympathy for the
children and showing rapport building; statements evoking bias against Stevenson;
44 A70.
22
and inadmissible hearsay, all of which had no probative value and were unduly
prejudicial45
To limit the prejudicial effect of admitting out-of-court statements Delaware
law limits the evidence to “the voluntary out-of-court statement of a witness who is
present and subject to cross-examination.”46 That is, “the actual statement of a
witness” is what is admissible into evidence47
“Accordingly, interrogations that
contain both the witness’ statements and inadmissible statements by third parties
must be redacted. For example, a police officer’s personal opinion is generally not
admissible evidence at trial and, therefore, may not be admitted as part of a witness’
statement . . . . Similarly, an expert witness may not opine on the credibility of a
witness generally and, therefore, such opinions are equally inadmissible . . . .”48
The Videotaped statements admitted to the jury in this case included the
interviewer’s statements Nevertheless as the State correctly asserts on appeal,
Stevenson waived this argument before the trial court. AS this Court explained in
King v. State,49 there is an express and effective waiver as to any appellate
presentation on an issue where defense counsel responds to queries by a trial judge,
45 Id
46 Stevens v. srare, 3 A.3d 1070, 1072 (Del. 2010).
47 1a a11073.
481a1
43 239 A.2d 707 (Del. 1968).
23
by stating that there are no objections to the admission of evidence50 Indeed, such
affirmative statements are a stronger demonstration of a waiver “than the mere
”51 Here, the State moved to admit redacted versions of the
absence of an objection.
videotaped statements The trial judge took a recess to allow defense counsel and
Stevenson the opportunity to review each of the videotapes Upon review, defense
counsel made no objection to the Videotapes:
[The State]: Your Honor, all three [videotaped]
statements the redacted versions were played for [trial
counsel] and [Stevenson]. I believe there’s no objection
to them, so long as the appropriate foundation is laid
through their testimony.
[Defense Counsel]: That’s correct, your Honor.
In his Reply Brief, Stevenson submits that this Court should nonetheless
review his claim because the interests of justice require as much. Specifically,
Stevenson submits that the interests of justice mandate this Court’s review because
the trial judge, in a case based solely on the credibility of the State’s witnesses
permitted the jury to hear the State’s case nearly three times in two days
First, Stevenson’s reliance on Shelton v. State52 is misplaced because Shelton
involved a capital defendant, and defense counsel had failed to object to a matter
641 Id. ar 709.
311d. at 708.
63 744 A.2d 465 (Del. 1999).
24
that, at that time, was ambiguous under Delaware law.53 Second, although the
interests of justice did mandate our review of Stevenson’s claim, our review “can
only be accomplished with an accurate record of the proceedings in the [trial]
[c]ourt.”54 Rules 9(b)(i) and 14(e) of this Court “direct all parties to order a transcript
and to include in their appendix those portions of the record which are relevant to
any claims on appeal.”55 Stevenson, as the appellant, had the burden of producing
“such portions of the trial transcript as are necessary to give this Court a fair and
accurate account of the context in which the claim of error occurred,”56 and
the record “must include a transcript of all evidence relevant to the challenged
finding or conclusion.”57
In the context of this case, Stevenson quotes commentary from the videotaped
statements but failed to submit transcripts of the videotaped statements or the
videotapes themselves for this Court’s review. Without the record, this Court
cannot exercise appellate review. Accordingly, Stevenson’s claim must fail for two
reasons: first, defense counsel affn'matively waived this argument; and, second, this
Court cannot decide an issue for which no record has been provided.
53 Id. at 497 n.l42.
54 Tricoche v. State, 525 A.2d 151, 154 (Del. 1987); see also Del. Supr. Ct. R. 9(b)(i); Del. Supr.
Ct. R. 14(e).
55 Tricoche, 525 A.2d at 154.
56 Del. Supr. Ct. R. 14(e).
57 Id
25
Conclusion
The Superior Court’s judgment of convictions is affirmed.
26