Keys v. State

• Decision Date: 14 March 1975
• Citation: 337 A.2d 18
• Parties: David M. KEYS, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.
• Court: Supreme Court of Delaware

Page 18

337 A.2d 18

David M. KEYS, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.

Supreme Court of Delaware.

Argued Nov. 15, 1974.

Decided March 14, 1975.

Upon appeal from Superior Court.

Donald W. Huntley, Asst. Public Defender, Dover, for defendant below, appellant.

Harrison F. Turner, Deputy Atty. Gen., for the State of Delaware, Dover, for plaintiff below, appellee.

Before HERRMAN, C.J., DUFFY, J., and QUILLEN, Chancellor.

PER CURIAM:

This appeal gives rise to the first interpretation by this Court of a relatively new criminal evidence Statute, 11 Del.C., § 3509, entitled 'Use of prior statements as affirmative evidence'. Since the interpretation is new, it will be mandatory only as to cases in which the trial begins after February 24, 1975; it will not be applied retroactively. ¹

The Statute, enacted in 1970, reads as follows:

' § 3509. Use of prior statements as affirmative evidence.

'(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.

'(c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are co-defendants in the same trial. This section shall also not apply to the statements of those whom to cross examine would be to subject to possible self-incrimination.'

The State has accepted the statement of facts contained in the appellant's brief, and, we rely on that statement with some further supplement from the record. The defendant was convicted of three counts of kidnapping, one count of burglary in the first degree, one count of theft and three counts of conspiracy. The pertinent evidence appears to be as follows.

The State presented testimony by several witnesses to indicate that on August 17, 1973, three people, disguised and armed with guns, entered the home of James J. Ross and there held Mrs. Ross and Mr. Flemming, her father, at gunpoint until Mr. Ross came home. None of the witnesses specifically identified the defendant as being one of the perpetrators.

The testimony further indicated that when Mr. Ross arrived home he was taken under gunpoint and forced to accompany one of the three men to the Woolco Department Store, of which he was manager, where he was forced to open the safe and take therefrom certain monies, as well as a gun that was taken from a showcase. Mr. Ross was then returned to his home, whereupon Mr. and Mrs. Ross as well as Mr. Flemming were bound and the men left in Mr. Ross's car.

The State introduced into evidence three out-of-state written statements, two made by Mr. Floyd Wells and another made by the defendant himself. Mr. Wells' statements were introduced, under 11 Del.C., § 3509, through the testimony of Detective Thomas Breazeale of the Dover City Police Department and the testimony of Deputy Attorney General Dana Reed. Mr. Wells was present and had been granted immunity pursuant to 11 Del.C., § 3508 prior to trial in order to make him available for testimonial purposes. He was not called to the witness stand by the State and, although the defendant was specifically offered an opportunity to call him, he did not do so. ² The statements by Mr. Wells were admitted over the objection of the defendant and their admission constitutes the major issue on this appeal. The statements clearly implicated the defendant and others in the crimes. In particular, the statements indicated the defendant had participated in the planning and was seen near the house shortly before the unlawful entry.

The statement of the defendant was found to be admissible at a pretrial hearing and no issue concerning it is directly before us. Indeed, the defendant took the stand and admitted making the statement although he denied its truth and contended that it was a complete fabrication which he was induced to make by others charged with crimes arising from the same factual allegations. The defendant testified that the statement, which acknowledged his participation in the crimes, was made under stress during a period of incarceration and under the belief that the statement could be recanted. In the statement, the defendant had acknowledged that he was one of the persons who entered and stayed at the house at the time of the criminal activity.

The State introduced into evidence various articles of apparel, U.S. currency, a handgun and a cartridge belt which were identified as being involved in the crimes, as disguises or weapons or as fruits of the crimes. These articles were found in the home of the defendant. The defendant testified that on the morning following the crimes he consented, for a payment of $1,000, to store these items in his home. The defendant also presented evidence by several witnesses to the effect that he was in his home during at least most of the period when the crimes were committed. The defense testimony indicated that the defendant was ill during the period and that a friend, in addition to the defendant's wife, stayed in the defendant's home for the entire night in question.

The defendant contends that the Trial Court erred in admitting the statements of Wells both on Constitutional grounds and on the basis of the Statute itself. We do not find it necessary to determine whether the admission of the statements was error under the confrontation provision of the Sixth and Fourteenth Amendments of the United States Constitution (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)) because we find the admission violated the Statute itself and was therefore error. And we say so for two general reasons: the statutory language used by the General Assembly and the practicalities of a fair criminal trial.

First, we rely on the language of the new Statute in the traditional context of common law evidence. The traditional rule is that prior out-of-court statements are not admissible except for special purposes such as: admission of a prior inconsistent statement for impeachment purposes only (Thompson v. State, 4 Storey 27, 174 A.2d 141 (Sup.Ct.1961)); admission of a prior consistent statement to rebut an attack of recent fabrication or improper influence or motive for rehibilitation purposes only (Wisniewski v. State, 1 Storey 84, 138 A.2d 333 (Sup.Ct.1957)); and admission of a prior statement for evidence of identification (Miller v. State, Del.Supr., 224 A.2d 592 (1966) (although the precise identification there may now raise questions on 'line-up' grounds) and Taylor v. State, Del.Supr., 298 A.2d 332 (1972)). Since the Statute represents a departure from the common law rule of evidence and since the departure, at least in some instances, affects the traditional rights of persons interested in litigation, we think the Statute should be strictly construed. Mumford v. Robinson, Del.Supr., 231 A.2d 477 (1967). Even if the Statute is viewed in a limited sense as remedial, it becomes only one segment of the complex that is the law of evidence and it should be interpreted in the light of that preexisting law, knowledge of which is charged to the General Assembly. State for Use of Davis v. Adams, 3 Terry 54, 27 A.2d 401 (Super.Ct.1942). Thus, while the Court should give full effect to the limited change made by the General Assembly, strict construction is applicable. There should be a preference towards a narrow interpretation of the language in order to avoid overturning established procedures by implication not necessary from the statutory language. DeJoseph v. Faraone, Del.Super., 254 A.2d 257 (1969); Wilmington Housing Authority v. Greater St. John Baptist Church, Del.Supr., 291 A.2d 282 (1972).

We find that the Statute was not intended by the General Assembly to dispense with the traditional requirement that the State produce the live testimony of the witness. Moreover, we feel this interpretation is compelled by the statutory language. It is of course fundamental that in construing a Statute, the Court must seek to ascertain and give effect to the intention of the Legislature as expressed in the Statute itself. Ernest DiSabatino & Sons, Inc. v. Apostolico, Del.Super., 260 A.2d 710 (1969), aff'd. Del.Supr.,269 A.2d 552, aff'd. sub nom. Magness Construction Co. v. Waller, Del.Supr., 269 A.2d 554 (1970).

First, it should be noted that the Statute uses the word 'witness'. In this context, the word can be interpreted in two ways. It could mean one who, being present, personally saw or perceived some thing pertinent to the criminal case being tried, that is, an eyewitness. In re Harter's Estate, 229 Iowa 238, 294 N.W. 357, 362 (1940). Or, it could mean one who testifies to what he has seen or perceived. Wigginton v. Order of United Commercial Travelers of America, 126 F.2d 659, 666 (7th Cir. 1942), cert. denied, 317 U.S. 636, 63 S.Ct. 28, 87 L.Ed. 513 (1942).

In the context of an evidence Statute and in light of the preference for strict construction, we find the latter definition to be the appropriate one. Thus, ignoring any special problems presented by depositions (Superior Court Criminal Rule 15), the Statute requires the out-of-court declarant to be an in-court witness. This construction is consistent with the prior law and avoids a radical departure from traditional concepts by implication. The requirement also minimizes the abuse which can arise in out-of-court statements through the use of leading questions and questions calling incompetent, irrelevant and immaterial answers.

Second, the Statute requires the witness to be 'subject to cross examination'. Cross-examination has been given the following definition:

'CROSS-EXAMINA...