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Baker v. State

Supreme Court of Delaware

July 18, 2019

JOSEPH BAKER, JR., Respondent Below, Appellant,
v.
STATE OF DELAWARE, Petitioner Below, Appellee.

          Submitted: May 8, 2019

          Court Below: Family Court of the State of Delaware I.D. No. 1711009663 (K)

         Upon appeal from the Family Court.

          Nicole M. Walker, Esquire, Assistant Public Defender, Wilmington, Delaware for Appellant, Joseph Baker, Jr.

          John Williams, Esquire, Deputy Attorney General, Dover, Delaware for Appellee, State of Delaware.

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          VAUGHN, JUSTICE:

         This is an appeal from an order of the Family Court adjudging the appellant, Joseph Baker, Jr., [1] a minor child, delinquent for having committed an act of Rape in the Second Degree. Initially, Baker was charged with three counts of Rape in the Second Degree. Count Two was voluntarily dismissed by the State before trial. At trial, the Family Court judge found Baker delinquent on Count One and acquitted him on Count Three. On appeal, Baker argues that the judgment of delinquency for the one count of Rape in the Second Degree should be reversed because of evidentiary errors made by the Family Court judge at trial. We agree that errors were made and reversal is required.

         It is alleged that the two counts of Rape in the Second Degree that went to trial occurred in Kent County. The alleged victim in both counts is Baker's younger sister, S.B. She was six years of age at the time of the alleged offenses. Baker was thirteen years of age at the time of the alleged offenses. The acts of rape are alleged to have occurred in S.B.'s home when Baker was there for weekend visitations. They are alleged to have occurred in Baker's bedroom.

         II.

         A.

         The first claim of error made by Baker relates to the testimony of Emily Brown, a friend of S.B.'s mother. Brown was the first witness called by the State She testified that her two sons were playing with S.B. on a trampoline in her backyard. She testified that she overheard S.B. say, "Junior showed me his privates," and that one of her sons responded, "Who's Junior?"[2] S.B. explained that Junior was her brother. According to Brown, when her sons asked S.B. why her brother did that, S.B. "was like, 'He made me'-you know, 'He'-she said, 'I don't know. He showed me his privates and made me touch them . . . .'"[3]

         Brown testified that she put an end to the conversation and called S.B.'s mother to report what S.B. had said. She also spoke to S.B. and said, "I heard what you said on the trampoline, about Junior."[4] "Yeah," responded S.B.[5] Brown then asked, "Where were your parents at, when he did this?"[6] S.B. said that her parents were sleeping at the time.

         Baker's counsel made a timely objection to Brown's testimony on the ground that it contained inadmissible hearsay. The State argued that S.B.'s statements as related by Brown were not offered for the truth of the matter asserted, but instead were offered for information as to what S.B. eventually told her mother and to show that S.B. was not being coached. Baker's counsel responded that she had not made any argument or assertion that S.B. was coached. The Family Court judge overruled the objection.

         This Court reviews "a trial court's ruling admitting or excluding evidence for abuse of discretion."[7] Baker contends that Brown's testimony did not satisfy the requirements of Delaware Rule of Evidence 801(d)(1)(B), which provides that a statement is not hearsay if "[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . is consistent with the declarant's testimony and is offered . . . to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying."[8] The State argues in response that the trial judge did not abuse his discretion in admitting Brown's testimony relating to S.B.'s statements because during the testimony of the first witness the trial judge had no idea what further evidence might reveal.

         In this case, both sides waived opening argument, Brown was the first witness called by the State, and there was simply no evidentiary basis upon which the trial judge could have concluded that Brown's testimony relating to S.B.'s statements was offered to rebut an express or implied charge that S.B. had recently fabricated her accusations against Baker or that she acted from a recent improper influence or motive. Admission of S.B.'s hearsay statements overheard by Brown was error.

         The State also argues that any error in admitting Brown's testimony was harmless because S.B.'s out-of-court statements could have been admitted under 11 Del. C. § 3507. Section 3507, however, applies "[i]n a criminal prosecution."[9]"[A] Family Court adjudication of delinquency is a civil proceeding."[10] Because the delinquency proceeding involved here was not a "criminal prosecution," § 3507 does not apply.

         B.

         The second evidentiary issue Baker raises on appeal relates to the testimony of Kitty Nelson, a child-protective-services investigator for the Department of Social Services in Caroline County, Maryland. Nelson interviewed S.B in connection with the allegations. Nelson's testimony at trial focused on the use of anatomical dolls during her interview with S.B. She testified that through the use of the anatomical dolls, S.B. illustrated the alleged acts of rape Baker committed upon her. Baker's trial counsel made a timely objection that any statements made by S.B. during the interview, including, by implication, the nonverbal statements made through ...


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