McCrary v. State

• Court: Supreme Court of Delaware
• Decided: January 13, 2023
• Docket: 406, 2021
• Status: Published

Opinion

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