Tucker v. State

• Citation: 564 A.2d 1110
• Parties: Preston TUCKER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Decision Date: 13 December 1988
• Court: United States State Supreme Court of Delaware

Page 1110

564 A.2d 1110

Preston TUCKER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Dec. 13, 1988.

Decided: Sept. 11, 1989.

Rehearing Denied Oct. 13, 1989.

Bernard J. O'Donnell (argued), Asst. Public Defender, Wilmington, for appellant.

Rosemary K. Killian (argued), Deputy Atty. Gen., Wilmington, for appellee.

Before HORSEY, MOORE, and HOLLAND, JJ.

HORSEY, Justice:

In this appeal following defendant's conviction in Superior Court of unlawful sexual intercourse with a minor, defendant seeks a new trial, claiming reversible error in evidentiary rulings of the trial court and in the court's admission of testimony prejudicial to defendant. The contested testimony consists principally of out-of-court hearsay statements of the nine-year-old victim and her five-year-old brother concerning the sexual assault, as well as the admission of third-party hearsay statements of prior sexual acts by defendant with the child. Defendant also asserts a Sixth Amendment claim of denial of right of confrontation.

Defendant, Preston Tucker, was indicted on one count of Unlawful Sexual Intercourse, First Degree, with the nine-year-old daughter of the woman with whom Tucker was living. Defendant was found guilty of the offense charged, 11 Del.C. § 775; and following denial of defendant's motion for judgment notwithstanding the verdict or for new trial, defendant was sentenced to life imprisonment.

On the day of trial, before opening statements, defendant moved the court to bar the admission of evidence of prior sexual contact between victim and defendant that was not "plain, clear and conclusive" under D.R.E. 404(b) as interpreted in Diaz v. State, Del.Supr., 508 A.2d 861 (1986). Defendant also sought a ruling in limine barring the State from introducing any out-of-court statements of the victim made to her mother, the police, or any medical personnel that lacked the required voluntariness for admission under 11 Del.C. § 3507. Defendant asserts that the trial court committed reversible error in admitting, through third-party testimony, nine out-of-court statements of the victim and her brother, as well as evidence of victim having contracted venereal disease associated with prior sexual contact with defendant. Defendant also asserts a claim of a Sixth Amendment denial of right of confrontation from the refusal or unwillingness of the children to respond to questioning on cross-examination.

We find no plain error or error of law or abuse of discretion under 11 Del.C. § 3507 or under D.R.E. 803(4) in the court's admission of the several hearsay out-of-court statements of the children. The record confirms that the prior out-of-court statements of the children, offered by the State through victim's mother, hospital personnel, and the investigating police officer, were either admitted by waiver or consent or were otherwise properly found by the court to meet the controlling rules of evidence. Inasmuch as the children were also present at trial and were made available for cross-examination, we further find that declarants were not unavailable within the meaning of D.R.E. 804(a) and that defendant was not denied his Sixth Amendment right of confrontation through the children's failure to respond to defendant's entire line of questioning. Cf. United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Finally, we find no reversible error in the court's "other crimes" rulings under D.R.E. 404(b).

I

The evidentiary and legal issues raised are largely fact-driven; and an understanding of the manner in which such evidence was ultimately admitted requires a fairly detailed recital of the facts and the sequence in which the evidence was admitted at trial.

On October 14, 1986, Jill Harper ¹ had been living off and on with her boyfriend, Preston Tucker, in her home in Wilmington, Delaware, for about five years. The other occupants of the home were Jill's two children, a nine-year-old daughter, Esther, the victim, and her five-year-old brother, Craig.

During the afternoon of October 14, Jill had been away from the home visiting a relative and drinking alcoholic beverages. About 7:00 p.m. she telephoned defendant to meet her downtown so they could walk home together. They met, but an argument followed and they parted company. Defendant, known to all as "Chessie," returned home first, entered the house unseen through the back door, and went to the couple's second-floor bedroom. There he found both children lying on the bed watching television. In the presence of Craig, defendant allegedly had sexual intercourse with Craig's nine-year-old sister, Esther, committing the offense of which he was found guilty.

In the meantime, Jill had returned home but had remained out on the sidewalk talking to a relative. When Jill later entered the house, she went upstairs and found her children and Chessie watching television. Jill and Chessie resumed their argument, which became "heated," leading Jill to lock herself in the second-floor bathroom. When Chessie threatened to kick in the door, Jill opened the door, Chessie spat in her face, and Jill ran down the stairs and out the front door. Defendant pursued her with a stick and the children followed. When defendant began beating Jill around her legs with the stick, Esther grabbed another stick and began striking back at Chessie. Each time Esther hit Chessie, he hit Jill, until, as defendant put it, he began to tire of the "game." According to Jill, while defendant was beating her, Esther shouted to Chessie, "Since you are trying to hurt my Mom, I'm going to tell my Mom how you raped me."

Jill immediately took her children and fled to a neighbor's home. There Jill telephoned the City of Wilmington police and reported defendant's assault on her daughter and her daughter's statement of having been raped.

Detective Tabor and another officer of the Wilmington police "responded" to the neighbor's home. After determining Esther to be the "victim," Detective Tabor spoke separately, first with Esther and then with her brother Craig, questioning each on what had happened. Esther told Detective Tabor that "Chessie" had "tried to stick [his penis] in her." Craig told the detective, "He did it to her." Detective Tabor then arranged for Esther to be taken to a local hospital for a medical examination and for Jill and Craig to accompany her.

At the hospital Detective Tabor again separately questioned both Esther and Craig concerning what had happened in the bedroom. In essence, each repeated in somewhat more detail what each of them had earlier told the detective concerning what defendant had done.

An emergency room physician, Dr. Denise Gavula, examined, questioned, and treated Esther at the hospital that night. She found the child's vaginal area to be very irritated and sore, her vagina opening unusually loose, "gapping," and a discharge from it, a condition later diagnosed as chlamydia. Dr. Gavula and other medical personnel concluded and noted in the hospital record that the child had probably been raped, reportedly by her mother's boyfriend, the defendant.

Later the same night, at about 11:30 p.m., the police took defendant Tucker into custody. On being advised of his Miranda rights, defendant at first refused to make any statement. Early the following morning, at 1:45 a.m., defendant, while being fingerprinted, changed his mind and gave Detective Tabor a statement, denying that he had either sexually touched the child or had sexual intercourse with her. However, defendant was then placed under arrest.

Three days later, Detective Tabor reinterviewed Esther and her brother Craig at the police station; and three months later the detective made a video recording of Craig's demonstrating with the use of anatomically correct dolls what he had seen defendant do to Craig's sister, the victim.

A.

On the first day of trial, in the course of victim's testimony as the State's first witness in its case-in-chief, defendant sought to exclude all prior out-of-court statements of the victim made either to her mother, Detective Tabor, or to medical personnel. Defendant's basis for exclusion was lack of voluntariness under 11 Del.C. § 3507 (see footnote 9 below). The court found, on the limited record before it, the victim's prior statements to her mother and to Detective Tabor to be voluntary and therefore admissible under section 3507. However, the court found the record inadequate to determine the admissibility of victim's prior statements made to hospital personnel, including Dr. Gavula. The court denominated its rulings as "preliminary." Defendant's exclusion motion did not encompass any prior out-of-court statements of victim's brother Craig.

The State, as both parties anticipated, was unable to elicit from either the victim or from her brother Craig, its second witness, any testimony of a specific nature to establish an essential element of unlawful intercourse in the first degree (rape), specifically penetration. On direct examination, Esther would testify only as to peripheral matters. She would answer no questions directed to proof of the alleged rape itself. Esther was willing to testify concerning: her brother's presence at the time; her relationship with Chessie, the defendant; and his stick-beating of her mother. She also acknowledged her statements to both her mother and to Detective Tabor about what had happened that day to her.

Thus, Esther testified on direct examination that she had told her mother and Detective Tabor that evening that Chessie "did [something] to [her]," but she refused to state or describe what he actually did. Each time that Esther was asked on direct, and later on cross-examination, a direct question as to the alleged sexual act, Esther answered all such questions either by silence or by stating, "I don't know," or by...