Burns v. State

• Decision Date: 20 April 2009
• Docket Number: No. 64, 2008.,64, 2008.
• Citation: 968 A.2d 1012
• Parties: Robert BURNS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

968 A.2d 1012

Robert BURNS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 64, 2008.

Supreme Court of Delaware.

Submitted: January 21, 2009.

Decided: April 20, 2009.

Corrected: May 4, 2009.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0605017137.

Upon appeal from the Superior Court.

AFFIRMED IN PART

and

REMANDED.

Nicole M. Walker and Santino Ceccotti (argued), Esquires, Office of the Public Defender, Wilmington, Delaware; for Appellant.

Elizabeth R. McFarlan (argued) and Danielle J. Brennan, Esquires, Department of Justice, Wilmington, Delaware; for Appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

JACOBS, Justice.

Robert Burns, the defendant below, appeals from a Superior Court final judgment of conviction of three counts of Second Degree Rape, two counts of Second Degree Unlawful Sexual Contact, and one count of Continuous Sexual Abuse of a Child. On appeal, Burns argues that the Superior Court: (1) abused its discretion by denying his motion for a mistrial after the victims' father made an outburst before the jury; (2) erroneously denied his request to conduct an in camera review of the victims' therapist records; and (3) abused its discretion by refusing to provide the jury access to the victims' video-taped statements.

We conclude that the Superior Court did not abuse its discretion either in denying Burns' mistrial motion or in refusing to provide the jury access to the victims' video-taped statements. We are constrained to conclude, however, that the Superior Court erroneously denied Burns' request for an in camera review of the victims' therapist records. Absent such an in camera review, the record, in its current form, does not enable us to decide whether or not the convictions should stand. We therefore affirm in part, and remand to the Superior Court for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2006, the Ames family was hosting a birthday party for twelve year-old Sara Ames.¹ When Sara's sister, Tina Ames—who was then fourteen years old— saw Burns, her uncle, at that party, she recalled several occasions four to six years earlier when Burns had inappropriately touched her. Several days later, Tina asked Sara if Burns had ever touched her inappropriately. Sara responded affirmatively. Thereafter, Tina told a friend that Burns had touched her inappropriately. The friend's mother learned of Tina's allegations, and encouraged Tina to tell her parents. Tina and Sara wrote a note to their mother, Susan Ames, disclosing that when they were younger and had spent the night at their aunt's home, Burns would come into their bedroom and "touch" them.

On the morning of April 10, 2006, Susan Ames found the note after the girls had left for school. Susan then went to the girls' school, and told school officials about the note. Susan's husband, Richard Ames, was then contacted. Richard left work and met his wife at the school. The girls were removed from class and taken to meet their parents, who then took their children home and promptly called the Delaware State Police. State Trooper Joshua Giddings, who responded to the Ames' call, spoke with the girls' parents and was told of the accusation contained in the girls' note.

Based on Giddings' initial report, Detective Millard Greer was assigned to investigate the case. Detective Greer spoke with the girls' parents and asked them not to discuss the facts of the case with their children. Greer also arranged, in accordance with State Police procedure, for the girls to be interviewed separately by forensic child interviewers at the Children's Advocacy Center ("CAC") at the A.I. DuPont Children's Hospital.

Susan and Richard Ames did not discuss the case with their children. They did, however, ask the girls to prepare notes on all incidents where Burns allegedly touched them inappropriately, to aid them to recount what had occurred, at their CAC interviews. Each girl separately prepared a set of notes. Tina told her interviewer that while she slept in the guest bedroom at her aunt's home, Burns had touched the outside of her vagina on five to ten occasions. Sara told her interviewer that Burns had penetrated her vagina with his fingers between eight and ten times. Sara could not recall where all those incidents occurred, but said that Burns inappropriately touched her at least once in the guest bedroom, and at least once in each of her two cousin's bedrooms. After the interviews, the girls destroyed their notes.

On May 22, 2006, Burns was arrested by the State Police. On July 24, a grand jury indicted Burns on five counts of Second Degree Rape as to Tina Ames, five counts of Second Degree Rape as to Sara Ames, and one count of Continuous Sexual Abuse of a Child as to each girl. Before trial, Burns moved to compel production, or alternatively an in camera inspection, of Tina and Sara Ames' therapist records. The trial judge took the motion under advisement.

The trial began on January 3, 2007. The next day, the State called Richard Ames as a witness. During direct examination, the prosecutor questioned Ames about how he had learned that Burns sexually abused his daughters. Mr. Ames responded as follows:

Q: Who was giving you information at that point?

A: My only sources of information were [Tina, Sara] and Susan.

Q: Were you asking questions to get that information?

A: I sure was. I wanted to know whether he stuck his penis in her vagina. (emphasis added).

While responding to the prosecutor's second question, Richard Ames raised his voice, leaned forward in his chair and pointed toward Burns. Defense counsel immediately objected, and the trial judge excused the jury.

After the jury left the room, Burns moved for a mistrial. The trial judge informed the attorneys that because it was nearly 11:30 a.m., she would excuse the jury for lunch and ponder how best to address the situation. The jury was then brought back into the courtroom. The judge instructed them to not discuss the case with anyone, and excused them for lunch.

After the lunch break, and before the jury returned to the courtroom, the trial judge informed counsel that although she found Richard Ames' outburst to be "calculated" and "intent[ional]," the outburst was not "calculated to in any way undermine the integrity of the court process." Accordingly, the trial judge denied Burns' mistrial motion, and ruled that a cautionary instruction was adequate to cure any prejudice. The jury was then brought back into the courtroom, and the trial judge gave the following 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.

After this instruction was given, the trial continued without further incident.

On January 5, after hearing counsel's arguments, the trial judge denied Burns' pre-trial motion to compel production of the victims' statements to their therapists, or (alternatively) to conduct an in camera review of those records. The court also denied Burns' motion to introduce the videotapes of Tina and Sara Ames' CAC interviews into evidence. Those videotapes were played for the jury during the trial, however.

On January 10, 2007, the jury convicted Burns of three counts of Second Degree Rape, two counts of Second Degree Unlawful Sexual Contact (as a lesser included offense of Rape), and one count of Continuous Sexual Abuse of a Child, all in relation to Sara Ames. The jury was "hung" on one count of Continuous Sexual Abuse of a Child, but it acquitted Burns of two counts of Second Degree Rape and two counts of Second Degree Unlawful Sexual Contact, all in relation to Tina Ames.

After trial, Burns moved for a new trial or judgment of acquittal. He claimed, inter alia, that the Superior Court had erred by denying: (1) his motion for a mistrial after Richard Ames' courtroom outburst, (2) his request for an in camera review of the girls' therapy records, and (3) his request to introduce the girls' CAC interviews into evidence. The Superior Court denied Burns' motion for acquittal or a new trial, and on January 18, 2008, sentenced Burns to forty-one years imprisonment, suspended after thirty-five years for two years probation.

This appeal followed. On November 12, 2008, a panel of this Court heard oral argument. Thereafter, the Court directed the parties to address two supplemental questions: (1) the range of appropriate remedies where a witness for the State intentionally commits an outburst in the presence of the jury; and (2) the applicability of the United States Supreme Court decision in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The parties thereafter filed supplemental briefs.

ANALYSIS

In Part I of this Opinion, we address Burns' claim that the Superior Court abused its discretion by denying his motion for a mistrial after the girls' father's courtroom outburst. In Part II, we address Burns' claim that the Superior Court abused its discretion by denying his request to introduce the victims' CAC interviews into evidence. Lastly, in Part III, we decide whether the Superior Court abused its discretion by denying Burns' request to review in camera the victims' therapy...