Opinion
Case No. 0605017137.
Submitted: June 15, 2007.
Decided: September 11, 2007.
Upon Defendant's Motion for a New Trial, DENIED.
Upon Defendant's Motion for Judgment of Acquittal, DENIED.
Upon the State's Motion to Quash the Subpoena Duces Tecum, GRANTED, Or, in the Alternative, Defendant's Motion for Leave to Issue a Subpoena Duces Tecum, DENIED.
Josette D. Manning, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
Charles M. Oberly, III, Esquire, Oberly, Jennings Rhodunda, P.A., Wilmington, Delaware, Attorney for Defendant.
OPINION AND ORDER
FACTUAL BACKGROUND
Defendant, Robert Burns, was charged with five counts of Rape Second Degree, five counts of Unlawful Sexual Contact Second Degree, and two counts of Continuous Sexual Abuse of a Child. At trial, the State presented evidence that the offenses occurred on unidentified dates between March of 2001 and March of 2004 and that at the time the offenses were alleged to have occurred, the victims were both under twelve years of age. The girls' mother testified that on or about April 10, 2006, Taylor, the older daughter, left a handwritten note, signed by both girls, indicating that when they were "little" and spent the night at Defendant's home, he touched them. At trial, the State presented testimony from both girls and their parents, as well as videotaped Section 3507 statements by the girls made to the Children's Advocacy Center ("CAC"). The Defense presented testimony of the Defendant and his wife.
The jury convicted Defendant of all the charges against Sydney Aiello, including three counts of Rape Second Degree, two counts of the lesser included offense of Unlawful Sexual Contact Second Degree, and one count of Continuous Sexual Abuse of a Child. Defendant was found Not Guilty of two counts of Rape Second Degree, two counts of Unlawful Sexual Contact Second Degree, and the jury reported they were deadlocked on one charge of Continuous Sexual Abuse of a Child involving Taylor Aiello. Following trial, the Defendant filed the instant Motion for New Trial, on several grounds.
First, Defendant submits that the Court erred in denying his request to conduct an in camera review of the children's therapist's records. Second, Defendant alleges that the Court erred in refusing to declare a mistrial after the girls' father made an outburst in the presence of the jury. Third, Defendant contends the Court erred in refusing to give a Deberry instruction concerning the destruction of the girls' written notes. Fourth, Defendant submits his right to effective cross-examination was thwarted by the Court's denial of permission to question Taylor Aiello about three specific incidents. Finally, Defendant contends the Court erred in excluding the video statements of the girls and the police report of Trooper Giddings.
Deberry v. State, 457 A.2d 744 (Del. 1983).
Defendant has also filed a Motion for Acquittal on the ground that the State did not prove beyond a reasonable doubt that Sydney Aiello was, in fact, penetrated as required by the Statute. Specifically, Defendant contends, the State failed to prove penetration as an element of the Rape charge because it never established that Sydney understood the terminology she used in referring to various parts of her body as she described the incidents.
For the reasons stated herein, Defendant's Motion for a New Trial and Motion for Judgment of Acquittal are DENIED.
STANDARD OF REVIEW
The Court may grant a new trial if required in the interest of justice. Barring exceptional circumstances, a trial judge should not set aside a jury verdict on such grounds unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result. The Court should be reluctant to draw a conclusion different from the jury on a disputed question of fact when the subject matter is within the normal comprehension of a jury and the evidence in the case is not particularly complex.
Super. Ct. Crim. R. 33.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Id. at 466-67.
When deciding a Motion for Judgment of Acquittal, the Court must view the evidence and all legitimate inferences drawn from the evidence in the light most favorable to the State. Only if the evidence was insufficient to sustain a conviction for the offense charged should the motion be granted. It is well-settled law that a victim's testimony concerning alleged sexual contact alone is sufficient to support a jury's guilty verdict. There is no requirement that testimonial evidence be corroborated either by physical evidence or corroborating testimony. It is the duty of the jury to determine if the State proved each necessary element of the charges beyond a reasonable doubt. The testimony of a sole witness is sufficient to form the basis for a conviction if the testimony presented by that witness establishes every element of the offense and is found by the jury to be credible.
Vouras v. State, 452 A.2d 1165 (Del. 1982); State v. Biter, 119 A.2d 894 (Del.Super.1955).
Id.
Hardin v. State, 840 A.2d 1217 (Del. 2003); Styler v. State, 417 A.2d 948 (Del. 1980).
Id.
Id.
Id.
MOTION FOR A NEW TRIAL
1. Defendant's request for in camera review of the therapist's notes.Some time prior to trial, Defense counsel learned that the victims had been seeing a therapist to address emotional issues related to the sexual abuse. Counsel did not have knowledge of the therapist's identity or any other information regarding the therapy sessions. A written request for the therapist records was made to the State on December 15, 2006, to which the State objected. Defendant then filed a motion pursuant to Criminal Rule 17, to compel an in camera "review of statements or notes of statements made by either Taylor or Sydney Aiello pertaining the alleged sexual abuse set forth in the indictment." The motion indicated "counsel does not seek access to any diagnosis made by the therapist or to any other medical or counseling records not related to this case."
Def. Mot. to Compel, at 10.
Def. Mot. to Compel, at 10.
The trial judge was assigned the matter on the day of trial, at which time the Motion was brought to the Court's attention. The Court agreed to hear oral argument on the Motion the next day. Defendant argued the therapist notes were necessary for impeachment purposes, citing alleged inconsistencies in the videotaped interviewsof the girls and some of the testimony elicited in the trial to that point. Defense counsel requested that the Court conduct an in camera review of the therapist's notes to determine whether disclosure was warranted to protect Defendant's Sixth Amendment rights. The State argued that the therapist records were not in its possession and thus it did not have any obligation to turn them over.
On January 5, 2007, the Court denied Defendant's request for an in camera review stating:
First, I think that based on the representations that have been made thus far, you're essentially asking the Court to go on a fishing expedition. And as far as I can see, the possibility there might be some contradiction is mere speculation. This is not a case where there is evidence that the victim [h]as recanted, expressed doubt about the identification of the perpetrator, or there's any indication that either victim suffers from a mental condition that would affect their ability to recall and relate events of what occurred. The Court, under case law, is required to balance the privilege versus the right to confrontation. And I think that in this case the showing that has been made does not meet a threshold that would justify disregarding the privilege between a patient and the therapist allowed under the law. Secondly, this privilege under the law does not appear to be different in its equivalence to the other privileges. If this were an adult sex case where the victim had talked with her husband and related the events that happened, even if he had made notes for potential civil litigation, I don't think that the Court would disregard that privilege. If the victim had consulted with her priest or clergy and had shared information that was relating to this event, I don't think that we would disregard that privilege. And if she spoke to an attorney she had hired to pursue civil litigation, I don't think that we would disregard that privilege. There is nothing in the law that changes the equivalence that this privilege between therapist and patient should be afforded, [ex]cepting the case law which requires the court to balance, as I said. Having made that balance, I find that there is an insufficient showing to overrule the privilege and to intrude into that relationship at this juncture.
Tr. Trial proceeding, January 5, 2007, at 29-31.
In the instant Motion for New Trial, Defendant contends the statements made to the therapist were necessary in order for the Defendant's Sixth Amendment right of confrontation to be meaningful. Defendant submits in seeking the therapist notes before trial, he did not contend that either Rule 16 or Rule 17 automatically provided access by the Defendant directly to such material. Rather, he sought relief pursuant to the procedure set forth in State v. Block.
2000 WL 303351 (Del.Super.) (providing a four step procedure for seeking pre-trial production of non- Brady material: First, defendant must identify precisely the records he or she is seeking, and assert a "compelling basis" for the request. Second, defense counsel should attempt to procure the consent of the victim for release of the records before resorting to Rule 17 or the Court. Third, defendant must then demonstrate to the Court, with specificity, that the information he or she is seeking is relevant and material to his defense. Upon such a showing, the Court will then issue a subpoena for the records-returnable to the Court-for in camera review. Finally, the State is only obligated to search for records relating to the alleged victim if the State is aware of their existence.)
Defendant contends that his motion "clearly stated the compelling interest in having access to any prior statements of the alleged victims and specifically requested that the procedures put into place by Block, including an in camera review, be followed so as to protect `against the unreasonable disclosure of confidential information.'" In opposition, the State argues Defendant is not entitled to a new trial on this ground because Defendant did not satisfy the threshold showing which would have required an in camera inspection of the victims' privileged therapist records and therefore, his Sixth Amendment right was not violated. In support of this argument, the State asserts that the possibility of inconsistencies in the CAC interviews does not, alone, justify delving into the victims' private mental health records. The State contends that, while Defendant did identify the specific records he sought, he did not provide a compelling basis for the production of those records.
Def. Op. Br., at 3.
Because it is undisputed that the therapist records sought are not in possession of the State and therefore, not discoverable pursuant to Brady or Criminal Rule 16, the Court limits its analysis to the applicability of Criminal Rule 17, under which Defendant filed his initial Motion to Compel an In Camera Review.
It is well established that Rule 17(c) "is not a pre-trial discovery [r]ule and that [the Court] must guard against it being used as such, thus rendering Rule 16 meaningless." This Court has previously held that it would not issue a subpoena for the production of records sought to impeach or otherwise attack the credibility of the complainant prior to trial. Subsequent cases establish procedures to otherwise seek production of materials under Rule 17, prior to trial, which require the moving party to show: 1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable in advance of trial by the exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition".
State v. Hutchins, 138 A.2d 342 (Del.Super. 1957).
State v. Block, 2000 WL 303351(Del.Super.); State v. Redd, 1993 WL 258717 (Del.Super.).
Id.
Where competing interests are implicated, such as where confidential or privileged material is sought, the Court employs a balancing test weighing the victim's right to privacy against the defendant's Sixth Amendment right to confrontation. Recently, in State v. Wood , this Court outlined the scope of Criminal Rule 17 as applied in sexual assault cases where privileged documents, such as medical or psychological records, are sought by the defense prior to trial:
See State v. Patterson, 1998 WL 438673 (Del.Super.); State v. Block, 2000 WL 303351 (Del.Super.); State v. Wood, 2007 WL 441953 (Del.Super.).
2007 WL 441953 (Del.Super.).
First, the defendant must be able to identify precisely the records he or she is seeking, and assert a "compelling basis" for the request. The Court will not permit a "fishing expedition" into the alleged victim's, or witness' medical and psychological history.
Second, defense counsel should attempt to procure the consent of the victim for release of the records before resorting to Rule 17 or the Court. Only in the event the victim refuses to consent should the defendant make an application to the Court pursuant to Criminal Rule 17 for the issuance of a subpoena for the records to be reviewed by the Court.
Third, defendant must then demonstrate to the Court, with specificity, that the information he or she is seeking is relevant and material to his defense. Upon such a showing, the Court will then issue a subpoena for the records-returnable to the Court-for in camera review. The review should focus on whether the records are relevant and sufficiently material to the defendant's case that they should be turned over pretrial. The Court has discretion to decide the relevance to the victim's credibility. If so, they will be produced to the defense.
Finally, the State is only obligated to search for records relating to the alleged victim if the State is aware of their existence. Defendant may ask the State to inquire of the victim if these records exist although the State is not under an obligation to produce them. As noted, the State is only responsible for documents or records in its possession or control, or those that the victim has consented to disclosure. If the documents or records sought are not in the control or possession of the State, and the victim refuses to consent, then the defendant must first meet the criteria outlined above and either ask the Court for appropriate relief or wait until after the witness has testified at trial.
Wood, 2007 WL 441953, *5 (Del.Super.).
Applying this procedure to the present facts, the Court finds that Defendant has not met his heavy burden to require an in camera review of the victims' therapist records. Considering the highly personal and privileged nature of the records, Defendant has not shown a sufficiently compelling justification for the request. Defendant's only stated purpose for seeking review of the documents is to determine whether the records contain any inconsistencies. The Court has thoroughly reviewed the record and finds no basis for Defendant's expectation that such inconsistencies are likely to exist. The Court finds Defendant's expectation of finding impeachment material in the therapist notes to be mere speculation and not sufficient to be a compelling reason as required by Block and Wood. Indeed, if the Court adopted the standard argued by Defendant, and granted the request based on the record in this matter, the reality is that this court would be required to review any therapist records in every case in which a victim had consulted with a therapist or counselor attendant to, or as a result of, a criminal incident. That is clearly not what is intended by Rule 17, or the cases that apply that Rule. Accordingly, the Court finds no error in its previous ruling denying Defendant's motion pursuant to Rule 17.
2. Request for mistrial.
On the second day of trial, before the victims testified, the State called the girls' father, Richard Aiello, to the stand. A few minutes into the direct examination, the prosecutor asked Mr. Aiello whether he asked his daughters what had happened to them. In response, Mr. Aiello rose up a few inches from his seat, pointed to the Defendant, and in an emotional outburst yelled: "I'm sure I was. I wanted to know whether the girls had been raped. I wanted to know whether he stuck his penis in her vagina."
The Court immediately asked that the jury be taken out of the courtroom. Defense counsel moved for a mistrial, contending that the damage caused by the outburst could not be remedied by a cautionary instruction. While noting that Mr. Aiello's outburst "appeared somewhat calculated" or "intended", the Court declined to declare a mistrial and gave a cautionary instruction to the jury. It is well-settled that a mistrial is mandated only where there are no meaningful alternatives. The decision whether to grant a mistrial after an outburst by a witness rests within the trial judge's sound discretion. In deciding whether to declare a mistrial the Court considers the nature, persistency, and frequency of the witness outburst, the likelihood of prejudice to the jury, the closeness of the case, and the mitigating effect of a curative action by the Court.
Immediately upon returning from the lunch recess the Court gave the following curative instruction:
Ladies and gentlemen of the jury, before the recess there was a moment where tensions ran high and voices got loud. And that was not an appropriate way to express one's self in a courtroom; the witness has been so advised. Please do not allow yourself to be swayed by any emotion in this case. Your responsibility is to decide this case based upon the facts, the evidence, the testimony, any documents, the items that are introduced, and apply the law to that. And you are not, by your oath, to be swayed by any considerations other than the facts of the case and the evidence and the law. So I would instruct you to disregard the emotional outburst and to consider only the evidence in your deliberations in arriving at a verdict.
Johnson v. State, 311 A.2d 873, 874 (Del. 1973).
Taylor v. State, 690 A.2d 935 (Del. 1997).
In Taylor v. State, during the victim's mother's testimony, the witness burst into tears and was asked to step down from the witness stand. As she walked by the defense table, she pointed to the Defendant while emotionally shouting "you! you!" The trial judge gave a sua sponte instruction to the jury and subsequently denied defense counsel's request for a mistrial. The Supreme Court, in upholding the denial of a mistrial, found that: the outburst was dramatic but neutral in content; the record supported the trial court's finding that the jury would understand the witness' emotional involvement in the case; the case was not close as the State's evidence was strong; and the trial judge immediately gave a curative instruction.
Id. at 935.
Defendant contends the facts of this case are distinguishable from Taylor in that, here, the outburst referred to sexual activity and was not content-neutral. Additionally, Defendant argues that the outburst was calculated, that the Court never made a finding that the jury would understand the witness' emotional involvement in the case, that the case was a very close case with the sole issue being witness credibility, and finally that the Court did not instruct the jury until almost two hours after the outburst.
Defendant relies on Ashley v. State, 798 A.2d 1019 (Del. 2001), where the Supreme Court reversed Ashley's capital murder conviction as a result of a spectator's outburst commenting about Defendant's guilt and about a stabbing incident that was excluded from evidence. The Court finds Ashley inapplicable here, because unlike the outburst in the case at hand, the statement made in Ashley was not content neutral.
The State contends any prejudice that may have resulted from the outburst was cured with the instruction, regardless of the intervening time. Relying on Taylor, the State argues that the statement made by Mr. Aiello did not reference any inadmissible evidence or prior bad act by the Defendant, it merely communicated what Mr. Aiello was thinking and what he wanted to know. The Court agrees.
While Mr. Aiello's outburst was disruptive to his testimony and the Court proceedings, the Court does not find it was so prejudicial that it was incurable by the Court's instruction. First, the statement made by Mr. Aiello was not conclusive or accusatory, rather it was a statement about his own state of mind and, thus, any prejudice that may have resulted was not from the content but from its delivery. Second, considering the fact that criminal proceedings involving sex offenses against children are often very emotional for the victims and witnesses, the jury in not likely to have been mislead by the emotional display by the victims' father. Third, the curative instruction to the jury was properly given. Immediately after the outburst, the jury was taken out of the courtroom, after which the Court heard argument from counsel on a motion to declare mistrial. The Court reserved decision on the motion until after the lunch break. At that time, the Court denied Defendant's motion and properly instructed the jury. The Court finds, therefore, that the instruction given was proper and timely, and that any prejudice that may have resulted was effectively cured by the instruction. Finally, the jury clearly considered the evidence apart from the father's comment. While his comment was as to both girls, the jury returned varying verdicts as to each victim.
3. Request for Deberry instruction
Deberry v. State, 457 A.2d 744 (Del. 1983).
At trial, the girls' parents testified that sometime before the CAC interview, they asked the girls to write down their recollection of the incidents of sexual abuse, and that the girls did in fact write down their thoughts. The parents further testified that they found and read the statements, but neither of them could recall the full content of what was written. Based on the girls' testimony, it appears the notes were later destroyed by the girls. While Taylor and her parents had very limited memory of the contents of the written statements, Sydney had better recall, remembering some of the details she had included in the note, as well as recalling that she had torn up and discarded her note.
At the conclusion of the evidence, Defendant requested that the Court give a Deberry instruction which essentially instructs the jury that they may infer from the spoliation of the evidence that the evidence must have been favorable to the Defendant. After hearing argument on the issue and considering the parties' submissions, the Court denied Defendant's request, reasoning that the evidence was never in the State's possession as it was destroyed long before the State could have taken possession of it.
In the instant motion, it is Defendant's contention that the Court should have given a special instruction concerning spoliation of evidence even though the evidence was not in the State's possession. Defendant submits that while it is true that the victims, who destroyed the evidence here, are not named parties in the caption of the criminal case, they are real parties of interest and should therefore, be held responsible for the destruction of the evidence. Defendant argues that it would be unfair "and a denial of due process to penalize the accused where it is uncontrover[ted] that evidence has been destroyed by the alleged victims the State prosecutes on behalf of."
Def. Op. Br., at 20.
The State contends the victims in the case destroyed their personal notes on their own and without any state involvement or knowledge. Moreover, the State notes, the victims' writings were created and destroyed prior to the initiation of any criminal action against the Defendant. The State, therefore, could not have secured the notes and thus, "should not be penalized for failing to take an impossible action."
State's Rep. Br., at 12.
In determining whether a spoliation of the evidence charge to the jury is appropriate in a particular case, the Court follows the three step analysis set forth in Deberry v. State. In Deberry, the only evidence linking the defendant to the crime was the victim's identification of him. The victim testified that she cut her fingers on a knife allegedly used by her assailant during the attack and that the rape continued for close to two hours. Because there was a strong probability that the victim's blood would have been left on the defendant's clothing, he requested that the State produce the clothes in its possession. Defendant argued that the absence of blood on the defendant's clothes would create a reasonable doubt whether he committed the rape. The State had, but failed to preserve, the evidence and had no reasonable explanation for that failure. The Court, following a three part analysis held the defendant was entitled to a missing evidence instruction. The Deberry analysis first, looks to whether the "requested material, if extant in the possession of the State at the time of the defense request, [has] been subject to disclosure under Criminal Rule 16 or Brady. If it is subject to disclosure, the next question is "whether the government had a duty to preserve the material." Finally, if such a duty existed, "was the duty breached, and what consequences flow from a breach."
457 A.2d 744 (Del. 1983).
Id.
Id.
Id.
In Johnson v. State, where an alleged rape victim had refused to submit to medical examination, the Supreme Court affirmed this Court's decision not to give a Deberry charge, holding that when the government plays no role in the destruction of the evidence, a spoliation charge is not appropriate. In Johnson, the victim alleged she and defendant had not previously engaged in sexual intercourse even though she often spent the night with him. After the alleged raped had occurred, the victim told her roommate what had happened but did not file a formal complaint. During the investigation the victim repeatedly refused the advice of the investigating police officer and her mother to have a sexual assault medical examination performed. At trial, Defendant's request that the court give a missing evidence instruction regarding victim's refusal to submit to medical examination was denied because the government had nothing to do with the victim's decision not to submit to examination.
753 A.2d 438 (Del. 2000).
The record in this case reflects that no government agent played any role the destruction of the girls' written statements. Indeed, the State was not even aware of their existence until after the notes had been discarded. Therefore, the Court finds that when the State is unaware of, or does not have possession of the evidence, there is no requirement to give a spoliation instruction. The Court notes that the jury did hear witness testimony and argument from defense counsel about the creation and destruction of the notes. The jurors were, therefore, able to weigh in their own minds the significance, if any, of the destruction of the girls' notes. Accordingly, the Court finds no error in the denial of Defendant's request for a Deberry instruction.
4. Request to cross-examine Taylor Aiello as to certain conduct.
During trial, prior to Taylor's testimony, defense counsel advised the Court that he intended to question Taylor about three prior incidents for which Taylor had been punished by her father. Defendant alleged Taylor "had been disciplined by her father for making comments of a sexual nature to a boy while using her or the family's computer. . .[and that] the Aiello family had apparently received notice from AOL that one of their children, Taylor, had been using strong profanity while on-line and might lose their AOL account. And in late December, 2005, or early January, 2006, Taylor was caught and punished for making sexual references while engaging in a game of truth or dare." Defendant intended to show that Taylor's dislike of Defendant coupled with the fact that she had been in trouble, at least in two instances for misconduct of a sexual nature, had motivated her to fabricate the allegations against Defendant in order to avoid punishment for her behavior. The incidents about which Defendant sought to question Taylor had occurred two to four months prior to Taylor's disclosure of the Defendant's sexual abuse. The Court found the line of questioning improper and not relevant because of the sexual nature of the conduct and the attenuation from the disclosure of the sexual abuse. The Court, therefore, denied defense counsel's request to pursue this line of questioning.
Def. Op. Br., at 20-21.
In the instant motion, Defendant contends the Court's denial of the opportunity to show through cross-examination that Taylor had motive to fabricate, denied him effective cross-examination. In response, the State contends, first, that when a Defendant seeks to cross-examine a victim about sexual conduct, he must follow a statutorily required procedure, which the Defendant did not follow. Second, the State argues that Defendant was never prevented from developing Taylor's possible motive, as the Court's ruling only barred delving into Taylor's sexual conduct, not her motivation. Finally, the State submits, even if the limitation of Defendant's right to confront Taylor was error, it is moot at this point because the jury rendered no guilty verdicts as to Taylor.
After a thorough review of the trial transcript and counsels' arguments, the Court does not find error in its previous ruling. Further, even if there were error, it is rendered irrelevant by the verdict, as the jury did not find the Defendant guilty of any charges involving Taylor.
Under the confrontation clauses of the United States and Delaware Constitutions, the Defendant in a criminal proceeding has a guaranteed right of confrontation. The principal purpose of the confrontation guarantee is to give the defendant the opportunity to cross-examine the witnesses against him. This right to cross-examination is not absolute, however, but subject to reasonable limits where it conflicts with other trial considerations. One such limitation is set forth in the Delaware Rape Shield Act, 11 Del. C. § 3508. This statute outlines the procedure to be followed when a Defendant seeks to introduce evidence of a victim's sexual conduct. The Rape Shield Act requires Defendants to make a written motion with an offer of proof concerning the relevance of the testimony or evidence to be used. The statute expressly applies where, as here, the evidence is to be used to attack the victim's credibility.
Delaware v. Van Arsdall, 474 U.S. 673 (1986); Weber v. State, 457 A.2d 674, 682 (Del. 1983).
Wright v. State, 513 A.2d 1310 (Del. 1986) (citing Davis v. Alaska, 415 U.S. 308, (1974)).
Id.
(a) In any prosecution for the crime of any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact; an attempt to commit any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such attempt conforms to § 531 of this title; solicitation for the crime of any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such offense conforms to § 502 of this title; or conspiracy to commit any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such offense conforms to § 512 of this title, if evidence of the sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness the following procedure shall be followed:
(1) The defendant shall make a written motion to the court and prosecutor stating that the defense has an offer of proof concerning the relevancy of evidence of the sexual conduct of the complaining witness which the defendant proposes to present, and the relevancy of such evidence in attacking the credibility of the complaining witness.
(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and is not inadmissible, the court may issue an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
In the instant case, the Court properly excluded Defendant's line of questioning because Defendant failed to comply with statutory requirements. Defendant never filed a written motion with the Court. The incidents of sexual conduct occurred too long before the disclosure of the abuse to be relevant in establishing motive to fabricate. Finally, there were no verdicts of guilty as to Taylor, and, therefore there can be no remedy, even if there was error.
5. The exclusion of the video-taped § 3507 statements and the police report.
During trial, the State introduced videotaped statements, made to representatives of the Children's Advocacy Center, by both victims. The video tapes were played in the Courtroom during the girls' testimony. Also, during Officer Gidding's testimony, Defendant referred to the officer's report several times in asking the officer what the parents reported to him and what exactly he recorded in the statements. At the close of the case, defense counsel sought to have the videotape and the officer's report admitted into evidence so that the jury could review them during deliberations. The Court did not allow the evidence to be admitted on grounds that the police report was hearsay, and that the admission of the tape would place undue emphasis on the testimony.
In the present motion, Defendant contends "just as a tape or writing evidencing Defendant's confession is central to the State's case and is admitted as an exhibit that goes to the jury, here, the Statements of Taylor, Sydney and Richard Aiello are central to the Defendant's case and should have been admitted." Regarding Officer Gidding's report, Defendant argues the Court erred in excluding it because the right to confrontation, the driving concern in hearsay rules, is not an issue where, as here, the Defendant, not the prosecutor, seeks its admission
As a general matter, the admission of recorded or written out-of-court § 3507 statements so that the jury can take them into the jury room during deliberations "should be the exception, rather than the rule". The decision to grant or deny the admission of such statements is within the "broad discretion" of the trial judge. In this case, the jury heard the in-court testimony of the girls, and saw and heard the taped interviews. The law in Delaware is that the better practice is to treat these statements as other, in-court testimony, which is not transcribed and submitted to the jury. The Court properly excluded the videotape from evidence.
Flonnory v. State, 893 A.2d 507 (Del. 2006) at page 525.
Taylor v. State, 685 A.2d 349 (Del. 1996); Harrigan v. State, No. 188, 1996, 1997 WL 45084 at *2 (Del. Jan. 29, 1997) (citing Ward v. State, Nos. 137, 154 and 155 (Del. Sept. 9, 1991).
Delaware Rule of Evidence 803(8) expressly excludes police reports from the hearsay public records exclusion. While Defendant is correct in asserting that the hearsay rules were established in large part due to concerns for trustworthiness (although not necessarily solely to protect defendants' confrontation rights), there is no legal basis to find hearsay evidence admissible simply because the Defendant, not the State, seeks to admit it. The Court declines to hold that the Rules of Evidence apply differently to defendants as opposed to the State, and therefore, finds the police report was properly excluded at trial.
(8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements or data compilations, in any form, of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (A) Investigative reports by police and other law-enforcement personnel; (B) investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party; (C) factual findings offered by the government in criminal cases; (D) factual findings resulting from special investigation of a particular complaint, case or incident; (E) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.
MOTION FOR JUDGMENT OF ACQUITTAL
Defendant contends he is entitled to judgment of acquittal on counts VI, VII, and VIII charging Rape Second Degree because the State' evidence was insufficient to establish the element of penetration. Under Delaware law, Rape Second Degree includes not only sexual intercourse, but also sexual penetration of a victim less than 12 years old by a Defendant 18 years or older. Under the Statute, "Sexual intercourse" is defined as: "Any act of physical union of the genitalia or anus of 1 person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight. . ." and "sexual penetration" is defined as "the unlawful placement of an object. . . inside the anus or vagina of another person. . ."
Defendant argues that the State was required to prove penetration, but failed to do so because it did not offer any evidence to show that Sydney understood the term. Specifically, Defendant argues that while the sole evidence on Counts VI, VII, and VIII was Sydney's testimony that Defendant had penetrated her, the State never explored what Sydney meant by her statements or whether she understood the terms she used. Because "sexual intercourse" is defined as penetration "however slight," Defendant submits the absence of the words "however slight" in the definition of "penetration" suggests that the State must establish penetration occurred. Although Defendant concedes the testimony of the victim in a rape case is usually enough to establish penetration, he contends where the victim is a child, "it is essential that the State establish that the child understood the meaning of penetration." The State, Defendant argues, did not meet that burden and the jury's finding of rape, therefore, is not supported by the evidence. In response, the State contends there was sufficient evidence presented at trial for a rational trier of fact to conclude Sydney was sexually penetrated. The State cites portions of Sydney's testimony where she stated that responds that Defendant `would stick his fingers in my private area' and later clarified she was referring to her `vagina' and that the Defendant put his fingers inside. There is nothing in Delaware law, the State argues, to suggest that the testimony of a young victim should be treated differently than that of other witness' testimony.
In this case, the record reflects that the State presented sufficient evidence, which the jury found to be credible, to support Defendant's conviction. Sydney testified regarding multiple acts of vaginal penetration by the Defendant, while she was under the age of twelve. During the videotaped statement from the CAC, which was played for the jury, Sydney related the details of the incidents involving penetration by the Defendant. She was specifically asked by the CAC interviewer to identify, on a doll, the area to which she was referring when she stated the Defendant "would stick his fingers in my private area", and she correctly pointed to the vaginal area. Considering the evidence in entirety, the Court finds sufficient evidence was offered to establish the element of penetration.
It appears one basis for Defendant's argument may be that, because she was a child, Sydney may not have understood the facts about which she testified. Defendant contends she was, therefore, not a credible witness. Defendant, of course, had full opportunity to test her understanding through cross-examination.
It is well settled that the jury is the sole judge of each witness' credibility and is solely responsible for resolving any conflicts in all of the testimony it hears. During closing statements, defense counsel raised this very issue in front of the jury, arguing that the State never asked Sydney if she understood what penetration meant or if she was aware of where her "private area" was. Thus, the jury was presented with whatever weaknesses the Defendant contends the State's case may have had and considered the issues during deliberation. The Court, therefore, declines to disturb the jury's findings of credibility and holds that based on the evidence presented, the jury could reasonably have found Sydney a credible witness and found that penetration had been established beyond a reasonable doubt. Accordingly, Defendant's Motion for a Judgment of Acquittal is Denied.
CONCLUSION
For the Reasons stated, Defendant's Motion for a New Trial is DENIED and Defendant's Motion for Judgment of Acquittal is DENIED.
IT IS SO ORDERED.
Defendant, Robert Burns, was found guilty on January 10, 2007, following a trial by jury, of three counts of Rape Second Degree, two counts of the lesser-included offense of Unlawful Sexual Contact Second Degree, and one count of Continuous Sexual Abuse of a Child. The named victims in the case were Taylor Aiello and Sidney Aiello. Following trial, the Defendant filed a Motion for New Trial.
The decision on the Motion for New Trial is issued contemporaneously with this decision.
On May 2, 2007, nearly five months after the verdict, Defendant served a subpoena duces tecum upon AI Dupont Hospital for Children, demanding the production of "any and all medical records concerning the examinations performed on Taylor and/or Sydney Aiello for possible sexual abuse during the time period of April 2006 and December 31, 2006." The State filed the instant Motion to Quash the Subpoena, on the ground that Defendant's subpoena is not authorized by any rule or case law in the State because it was issued after trial. Upon receipt of the Motion to Quash, the Court notified the hospital of the pending motion and ordered the hospital not to release any documents until a decision was made on the Motion to Quash.
A hearing was held on May 25, 2007, during which defense counsel informed the Court that, despite the Court's letter, the hospital responded to Defendant's subpoena by sending a letter indicating that they had no medical records for the dates requested. At the hearing, Defendant argued that he believes the hospital may have misunderstood his request for records for the period of time between April 2006 and December 31, 2006, as a request only for medical records for the two specified dates. Defendant wishes to issue yet another subpoena duces tecum clarifying his request. Defendant requests that the Court deny the State's Motion to Quash and offers that the Court may review any and all relevant records from the hospital, in camera, to determine whether any sexual abuse related examination was undertaken. At the hearing the Court ordered defense counsel not to take any further action to subpoena the victims' medical records without leave of the Court. Without deciding the matter, even if the Motion to Quash was rendered moot by the response to the subpoena, the defense application to issue another makes this matter ripe for decision.
APPLICABLE LAW AND ANALYSIS
The issuance of a subpoena in a criminal case is governed by Superior Court Criminal Rule 17. Rule 17 (a) authorizes the issuance of a subpoena "by the prothonotary under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein." Rule 17(e) provides that "A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Delaware." Rule 17 (c) authorizes the issuance of a subpoena for the purpose of obtaining documents, as follows:
"a subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys." (Emphasis added.)
"In general, Rule 17(c) may be properly invoked only for the procurement of documentary evidence or documents which are admissible in evidence at trial." "A subpoena duces tecum may not be used either to ascertain the existence of documentary evidence or as a "fishing expedition" to obtain statements of prospective witnesses that would not otherwise be discoverable."
State v. Wood, 2007 WL 441953 (Del.Super.) (Similarly, see State v. Redd . 1993 WL 258717 (Del.Super.). and State v. Block, 2000 WL 303351(Del.Super.)).
Id.
It is clear in the language of Rule 17 that the purpose of the issuance of any subpoena is to require the attendance of witnesses to provide testimony at a "hearing or trial" or to require the production of documents at such a proceeding. It is equally clear there is no authority to issue any such subpoena when there is no proceeding pending. This Court recently noted the responsibility of counsel with regard to the issuance of a subpoena duces tecum:
It is especially important the defense counsel not abuse the Rule 17(c) subpoena duces tecum procedure just outlined, when attempting to obtain the personal medical or counseling records of a victim or witness. In reality, the Court does not, and cannot, as a practical matter, monitor every subpoena requested by counsel to be issued by the Court. The subpoena power of a Court is a venerable weighty imperative in that it "commands" the person to whom it is directed to produce the designated records at a particular time. There maybe some individuals in possession of such records that are so intimidated by the authority of the Court that they would not even consider challenging their responsibility to comply. Confidential or privileged records of an individual may be unwittingly turned over to defense counsel in violation of that person's privacy rights, or their production may breach the patient-psychiatrist or patient-doctor privilege. One of this Court's gate-keeping functions includes the protection so such individual rights, at least until it is established that a defendant's need for them outweighs any privacy interests. For this reason, it cannot be emphasized enough that counsel are expressly prohibited form issuing subpoenas duces tecum under Rule 17(c) for pretrial production without express permission of the Court.
Id.
The subpoena in this matter was not issued pre-trial, or even during the proceeding. It was issued nearly five months following the conclusion of the trial and jury verdict. The Court must rely upon counsel to act in accordance with proper application and interpretation of Rule 17. In this instance, the Defendant's subpoena duces tecum was improperly requested and should not have issued.
CONCLUSION
For the reasons set forth above, the Motion to Quash the Subpoena Duces Tecum is GRANTED, and the request of counsel to issue another subpoena duces tecum to clarify his request is DENIED.
IT IS SO ORDERED.