Opinion
Docket No. 426, 1998.
June 2, 1999.
Appeal from Superior Court, Kent County, CrA IK96-09-0071-0078, 0080, 0081, 0090 and IK96-11-0090.
REVERSED AND REMANDED.
Unpublished Opinion is below.
DARNELL A. BRYANT, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 426, 1998. Supreme Court of Delaware. Submitted: May 4, 1999. Decided: June 2, 1999.
Superior Court of the State of Delaware in and for Kent County Cr. A. Nos. IK96-09-0071 through 0078, 0080, 0081, 0090 and IK96-11-0090.
Before WALSH, HARTNETT, and BERGER, Justices.
ORDER
This 2nd day of June, 1999 upon consideration of the briefs of the parties and oral argument it appears that:
(1) This is an appeal by Darnell A. Bryant ("Bryant") from his conviction in the Superior Court, following a jury trial, of nine counts of unlawful sexual intercourse in the first degree, two counts of unlawful sexual penetration in the third degree and one count of unlawful sexual contact in the second degree. Bryant was sentenced by the Superior Court to consecutive terms of imprisonment totaling life plus 121 years.
(2) Bryant asserts two claims of error: (i) that the trial court abused its discretion in excluding evidence of prior allegedly false complaints by the three complaining witnesses; and (ii) that the prosecutor's improper vouching for the credibility of the complaining witnesses requires reversal on the basis of plain error.
(3) The evidence presented by the State at trial centered on the claims of three sisters who at the time of trial were, respectively, fourteen, thirteen, and nine years of age. Each of the girls testified to a series of sexual contacts, some including vaginal intercourse, with Bryant, who was their mother's live-in boyfriend, over a period of time extending from early 1994 until Bryant's arrest in August, 1996. When arrested, Bryant denied the children's claims.
(4) At trial, the State presented the testimony and videotaped statements of the three girls, medical examination evidence, and Bryant's videotaped statement to the police denying the charges. Although one of the girls was examined within twenty-six hours of an alleged sexual assault, an emergency room physician could find no evidence of trauma in the genital area. This physician did note that her hymen was not intact but could not opine that it was the result of sexual penetration. The State also offered the testimony of Dr. Allan R. DeJong, a pediatrician who apparently specializes in child abuse cases. As to two of the girls, Dr. DeJong concluded that there were no specific physical findings suggestive of sexual abuse, but was of the view that the absence of such finding was, nevertheless, consistent with sexual abuse. Although the defendant did not testify, the jury heard his statement to the police, as well as a letter from one of the children in which she apologized for lying about the claim of sexual abuse. Bryant's mother also testified that on one of the dates, August 24, 1996, alleged by one of the girls to be an incident date, the children were in her care at that time and she was aware of no sexual contact by Bryant.
(5) Bryant's principal claim of error involves his effort to impeach the credibility of the three girls by showing that they had made complaints of sexual abuse against various other individuals that subsequently were not prosecuted and appeared to be false. Prior to trial, Bryant's counsel filed a motion in limine for permission to offer evidence against each of the three girls concerning allegations made by them against individuals other than the defendant. Bryant claimed that an examination of the records of the State Division of Family Services (the "Division") revealed that the three girls had made eight separate allegations of sexual abuse.
(a) Daughter One had made complaints of sexual molestation which were reported in March 1990, against her grandmother and the grandson of her grandmother.
(b) In 1991, the mother of all three girls reported to a Division worker that Daughter One had been molested by the daughter's biological father. Presumably the mother gained this information from her daughter. The father was not prosecuted for this alleged offense.
(c) In 1995, Daughter One reported to a Division worker that her "uncle" had touched her inappropriately. No arrest or prosecution resulted.
(d) In May 1991, Daughter Two reported sexual penetration by her grandfather. This report was deemed not credible by the Division and no prosecution occurred.
(e) In October 1992, Daughter Two claimed sexual molestation by her biological father. There was no arrest or prosecution.
(f) In February 1995, Daughter Two accused Ricardo Williams of sexually assaulting her. Williams was arrested and subsequently pleaded guilty to a sexual offense.
(g) In August 1997, Daughter Three accused another adult male of sexually assaulting her. He was not arrested or prosecuted on this charge.
(h) Daughter Three alleged that she had been sexually assaulted by another juvenile who was not arrested or prosecuted.
In order to maintain the anonymity of the complaining witnesses, they will be referred to hereafter in descending order of age as "Daughter One," "Daughter Two," and "Daughter Three."
In his motion in limine Bryant argued that he should be permitted to explore these eight past allegations "to show a pattern of making unbelievable and unsubstantiated allegations of sexual abuse similar to the allegations which gave rise to the indictment in the instant case." Later, at the hearing on his motion, Bryant withdrew his request as to Ricardo Williams, in view of Williams' plea of guilty.
(6) The State opposed inquiry into any of the prior incidents contending some of the allegations were true even though there had been no arrest or prosecution and that, in any event, admitting evidence of the incidents was prohibited by the Rape Shield Statute ( 11 Del. C. § 3508). In a pretrial ruling, the Superior Court ruled that Bryant could explore two incidents, one involving Daughter One in March 1990 and one involving Daughter Two in 1992, because there was evidence of a specific recantation in the Division records as to those incidents.
The Superior Court did not consider the Rape Shield Statute in its ruling and in this appeal the State has not relied upon the statute as a basis for exclusion.
(7) The Superior Court in granting permission to Bryant's counsel to introduce evidence of two of the seven prior allegedly false complaints of sexual abuse ruled that such evidence was admissible under D.R.E. 608(b) (specific instances of the conduct of a witness may be inquired into on cross-examination of a witness concerning character for truthfulness or untruthfulness). The court's refusal to permit questioning on the five remaining incidents was based on the court's concern that the admission of such evidence would result "in a mini trial" and thus were excludable under D.R.E. 403.
(8) As a general rule, the decision to permit or deny cross-examination of a witness concerning prior specific incidents of untruthfulness is committed to the sound discretion of the trial court. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). That discretion must be carefully exercised, however, so as not "to defeat a party's right to effective cross-examination." Gardon v. Sutton, Del.Supr., 683 A.2d 1041, 1043 (1996). The exercise of that discretion must conform to the criteria established by this Court in Snowden v. State, Del.Supr., 672 A.2d 1017, 1025 (1996) and Weber v. State, Del.Supr., 457 A.2d 674, 681 (1983). Those factors are: (1) whether the testimony of the witness being impeached is crucial; (2) the logical relevance of the specific impeachment evidence to the question at bar; (3) the danger of unfair prejudice, confusion of issues, and undue delay; and (4) whether the evidence is cumulative. The third factor, confusion of issues, implicates, in part, the same concerns addressed under D.R.E. 403 — the danger of a mini-trial.
(9) Our application of the Snowden/Weber factors suggests that the trial court's limit on cross-examination was an extreme measure and, in any event, was rendered on an incomplete record. There is little doubt that the testimony of the three girls was crucial to the State's case in view of the limited corroborative evidence presented at trial. The logical relevance of specific evidence of previous false allegations to a claim of sexual abuse in the face of the denial of the defendant is obvious. With respect to the danger of confusion of issues, the court permitted evidence of two recanted claims but denied exploration of other claims because there was no recantation in the Division records. No effort was undertaken to determine from the girls themselves whether any of the five remaining charges were false. The court's concern about a mini-trial is a valid one but was prompted by the State's position that the lack of an arrest and prosecution do not establish falsity. Ironically, it was the State's opposition that created the potential for a mini-trial, even though the State offered no evidence, other than the absence of a specific recantation, that the five excluded allegations were true. At a minimum, the defendant should have been afforded the opportunity to inquire of the girls directly, out of the presence of the jury, whether any of the five excluded claims were false. Under the same rationale used by the court to justify admission of the two recanted allegations, an admission of falsity as to any of the five excluded incidents would have rendered them also admissible under D.R.E. 608(b). We recognize that the defendant's articulation of his proffer was somewhat general, but, given the critical nature of the proffered testimony, a ruling of exclusion, that assumes the truth of the other five claims, is premature on this record. Finally, we note that the evidence is not cumulative. The five excluded incidents were not only more recent but included all three of the complaining witnesses.
(10) Even where the evidence is inconclusive as to falsity, prior allegations of sexual assault may be admitted to challenge credibility. State v. Oliveira, R.I.Supr., 576 A.2d 111, 113 (1990); State v. Jacques, Me.Supr., 558 A.2d 706, 708 (1989). The precise issue is not before us since the record is not complete with respect to the five excluded allegations; but, were the allegations true, such evidence may be relevant to the medical evidence presented in this case as to any history of sexual abuse.
(11) Given the minimal corrobative evidence in this case and the unusual social history of the complaining witnesses the issue of credibility looms large. Any attempt to restrict cross-examination under these circumstances must proceed on a complete record with a full appreciation of the relevance of such testimony. We conclude that, on this record, the trial court's ruling regarding the five excluded allegations, without further effort to determine their falsity, was an abuse of discretion. Because we cannot with confidence assess the impact of the excluded evidence, we must reverse and remand for a new trial.
(12) Bryant's remaining claim of error, that the prosecution improperly vouched for the truthfulness of the complaining witnesses is moot in view of our directive for a new trial. We note, however, that the prosecutor's comments come close to the line of injecting his personal opinion on evidence. See Brokenbrough v. State, Del.Supr., 522 A.2d 851, 858 (1987). We assume that, upon any retrial, the prosecutor's remarks will be more circumspect.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is REVERSED and the matter is REMANDED for further proceedings consistent with this order.
BY THE COURT:
/s/ Joseph T. Walsh
Justice