290 A.3d 442
Del.2023Background
- Defendant Timothy McCrary, a Head Start aide, was accused of unlawful sexual contact with preschool children (victims pseudonymed J.Y., A.L., L.F., M.G.).
- J.Y. (age 5) disclosed abuse to her mother in a bathtub, was recorded repeating the disclosure to her father, and later gave a recorded CAC forensic interview describing digital rubbing with lotion; at trial she testified but claimed a total failure of memory.
- Security video showed McCrary sitting next to A.L. during naptime with his hand under her blanket; A.L. later told her parents about touching but gave limited in-court recall; M.G. also made CAC disclosures.
- L.F. (age 4) gave a CAC interview describing butt and vaginal touching and being told to keep it secret; at trial she gave limited, inconsistent testimony but identified McCrary in the courtroom and acknowledged talking with a woman in a photograph about “bad touches.”
- The Superior Court admitted J.Y.’s out-of-court statements under Delaware’s tender‑years statute (§ 3513) (court found J.Y. unavailable due to total memory failure) and admitted L.F.’s CAC interview under § 3507; the bench trial resulted in convictions on four counts of Unlawful Sexual Contact in the First Degree; McCrary appealed.
Issues
| Issue | State's Argument | McCrary's Argument | Held |
|---|---|---|---|
| Whether admitting J.Y.’s out‑of‑court statements under 11 Del. C. § 3513 violated the Sixth Amendment Confrontation Clause | J.Y. was present at trial and defense had the opportunity to cross‑examine her on the record; admission complied with § 3513 and Confrontation requirements | Admission denied effective confrontation because defense lacked a prior opportunity to cross‑examine the declarant about the recorded statements (testimonial) | No violation; plain‑error review: J.Y. was on the stand, defense declined to probe memory, opportunity to cross‑examine was sufficient; admission affirmed |
| Whether trial court abused discretion admitting L.F.’s CAC interview under 11 Del. C. § 3507 for lack of foundation (direct exam must “touch on” events perceived and prior statement) | Direct examination of L.F. touched on the events and the out‑of‑court statement (identified defendant, said she spoke to the woman in the photo about bad touches) | Direct exam failed to connect the courtroom testimony to the CAC interview or to elicit substantive testimony about the events; foundation insufficient under Keys/3507 | No abuse of discretion: court found prosecutor’s questions and L.F.’s answers satisfied the Keys “touching on” requirement; admission affirmed (concurring/dissent would reverse one conviction) |
| Whether cumulative errors deprived McCrary of a fair trial | No significant errors to accumulate | Admission errors (if any) were prejudicial in combination | No cumulative error found; convictions affirmed |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial out‑of‑court statements inadmissible unless declarant unavailable and defendant had prior opportunity for cross‑examination)
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial from nontestimonial statements by primary purpose of interrogation)
- Ohio v. Clark, 576 U.S. 237 (2015) (applies primary‑purpose test to statements to non‑law‑enforcement recipients)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation Clause guarantees opportunity for effective cross‑examination, not guaranteed success)
- United States v. Owens, 484 U.S. 554 (1988) (witness on stand under oath is ordinarily ‘subject to cross‑examination’ even with memory lapses)
- Keys v. State, 337 A.2d 18 (Del. 1975) (§ 3507 foundation requires direct exam to touch on events perceived and the prior out‑of‑court statement)
- Johnson v. State, 338 A.2d 124 (Del. 1975) (limited in‑court recall does not necessarily bar admission of prior statements under § 3507)
- Ray v. State, 587 A.2d 439 (Del. 1991) (§ 3507 not satisfied where witness declined to testify about events; careful circumscription required)
- Woodlin v. State, 3 A.3d 1084 (Del. 2010) (reaffirmed Keys and Johnson principles on § 3507 foundation)
- Blake v. State, 3 A.3d 1077 (Del. 2010) (emphasized two‑part Keys foundation tied to Confrontation Clause)