Heald v. State

251 A.3d 643

Darth HEALD, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 108, 2020

Supreme Court of Delaware.

Submitted: February 10, 2021

Decided: April 27, 2021

Nicole M. Walker, Esquire, OFFICE OF PUBLIC DEFENDER, Wilmington, Delaware, for Appellant Darth Heald.

Kathryn J. Garrison, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Dover, Delaware, for Appellee State of Delaware.

Before VALIHURA, TRAYNOR, and MONTGOMERY-REEVES, Justices.

TRAYNOR, Justice:

A Superior Court jury found Darth Heald guilty of unlawful sexual contact with a nine-year-old child and related charges. The alleged contact occurred when Heald brushed the back of his hand over the child's clothed "private parts" during a "tag"-like game in which the player who is "it" chases the other players, who, if caught, are tickled rather than tagged. The prosecution's case was centered more on what the child had reported to others than what she said on the witness stand. By contrast, the defense focused on testimony from other children who were present or nearby at the time of the alleged offense—accounts that contradicted the complainant's version of important facts—and Heald's testimony denying the essential elements of the charged offenses. It was, by any reasonable estimation, a case that could have gone either way.

This appeal addresses the Superior Court's admission of evidence throughout the trial, sometimes over Heald's objections and sometimes in the absence of any objection. In the main, we find no reversible error in the court's evidentiary rulings. But we also must address Heald's claim that improper comments in the prosecution's opening statement and again in its closing argument cast doubt on the fairness and integrity of his trial. Because none of the challenged comments drew an objection from the defense, we are limited to reviewing them for plain error—that is, error that is "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." ¹ Even so, we have determined that several of the prosecutor's comments were improper and that their cumulative effect compromised the fairness of Heald's trial. Consequently, we reverse and remand for a new trial.

I. FACTUAL BACKGROUND

On September 9, 2018, ² nine-year-old Ann ³ spent the afternoon playing at her neighbors’ home with ten-year-old Ashley Heald and eight-year-old Brian Heald. Another friend from the neighborhood, Carl, also joined the children to play at the Healds’ home. In the late afternoon, Darth Heald, Ashley's and Brian's uncle, who lived part time with the Healds, joined the four children in a family game called "Monster," which combines the rules of tag and hide-and-seek. During the game, the player designated "it" would look for and chase the others and, upon catching the hiding players, would tickle them. Shortly after the game started, Ann unexpectedly left the Healds’ home and returned to her house. Upon arriving home, Ann appeared upset and told her father that her friend's uncle had touched her inappropriately.

Heald was indicted on charges of sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree; dangerous crime against a child; unlawful sexual contact in the first degree; and unlawful imprisonment in the second degree. At Heald's trial, witness testimony conflicted regarding the events that occurred during the game of Monster at the Healds’ home on September 9.

Ann—now ten years old—testified at trial a year, almost to the day, after the incident giving rise to the charges against Heald. She could not remember why she went to the Healds’ home that day or how long she was there. She did, however, recall playing Monster with Ashley, Brian, Carl, and Heald. Ann testified that Heald tickled her on her stomach, and he also tickled Brian while the two kids were in Ashley's room during the game. At this point, Ann's testimony took an interesting turn. Instead of asking Ann what, if anything, happened next, the prosecutor sought to elicit Ann's recollection of her interview a month later at the Child Advocacy Center (the "CAC"), ostensibly so that the State could play the recording of that interview for the jury under 11 Del. C. § 3507. ⁴ But Ann was unable to recall whether anyone forced her to participate in the interview or what she was "telling [the interviewer] about." ⁵ This last memory lapse caused the prosecutor to ask the court if she might "approach the witness to possibly refresh her recollection about why she was at the Child Advocacy Center." ⁶ Having received the court's permission, the prosecutor showed Ann something—the record does not tell us what it was—and Ann confirmed that what was shown to her helped her "remember a little bit about being there at the Child Advocacy Center." ⁷ The prosecutor then led her into acknowledging that the interview "involve[d] being over at the Heald's [sic] house" and also "involve[d] the uncle, Darth." ⁸ This acknowledgment was followed immediately by the following exchange:

Q: And when Uncle Darth played those games with you and the other children, did he touch you at any point?

A: Yes.

Q: Where did he touch you?

A: On my private parts. ⁹

This exchange represents the sum total of Ann's testimony regarding Heald's unlawful sexual contact with her. We pause here to observe that the damaging exchange quoted above occurred almost immediately after Ann's recollection was refreshed—purportedly for another purpose—by an unidentified object.

To fill in the gaps in Ann's testimony, the State introduced Ann's CAC interview. The State called Amy Kendall, the forensic investigator who had interviewed Ann, to authenticate the statement under 11 Del. C. § 3507. ¹⁰ Kendall explained her training, experience, and the CAC's process for conducting interviews of children. The recorded interview was then admitted, without objection, and played for the jury.

During Ann's CAC interview, Ann told Kendall that she was playing hide and seek at the Healds’ home with Ashley, Brian, Carl, and Heald. Ann explained that Brian and she were hiding in Ashley's room with the door locked when Heald unlocked the door and came into the room. Upon entering the room, Heald tickled Brian and Ann on their stomachs, backs, and armpits. According to Ann, when Heald opened a window in the bedroom, Brian ran out of the room. Ann said that she also tried to leave the room, but Heald was standing in the doorway, blocking the way out. Ann stated that she then laid on Ashley's bed and Heald came over to the bed and touched her. Ann explained that Heald touched her stomach with the backside of his hand and then moved his hand down over her pants and touched her private area. All of this contact was over Ann's clothing. Ann also told Kendall that she could smell alcohol on Heald's breath. Heald then asked if she wanted to be his partner and search for the other kids together. Ann agreed and went downstairs with Heald, continuing with the game. Ann stated that she felt uncomfortable, so she called her dad and asked what time she needed to come home. She then told the others she needed to leave and ran home.

The State also called Ashley and Brian Heald as witnesses. Ashley recalled playing Monster with Brian, Carl, Ann, and Heald. She remembered that Heald was the monster and that he would chase the children from her bedroom on the second floor of the house to the bathroom in the basement. Ashley testified that, during the game, Heald had started to tickle Ann but stopped when Ann asked him to. Ashley also testified that Ann was never in her room alone with Heald and that, while everyone was in her room being tickled by Heald, Ann went downstairs to the kitchen to get a drink. When asked why Ann unexpectedly left the Healds’ house that day, Ashley recalled that she "just thought she had to go .... I thought her mom texted her. Maybe she had to go somewhere or just do something." ¹¹

Brian also testified that the four kids were playing Monster with Heald. Brian explained that all four children were in Ashley's bedroom playing a computer game when Heald came in and started tickling all the children. Like Ashley, Brian said that Ann was never alone with Heald. Brian stated that, while the other kids continued playing the game with Heald in the basement, Ann stayed in the living room on the first floor of the house. According to Brian, Ann left the Healds’ house five or ten minutes after she told the other kids that she was uncomfortable being at the house.

The State also called Ann's mother and father as witnesses to describe what happened after Ann returned home from the Healds’ house. When asked about Ann's demeanor when she came home, Ann's father, Ryan Smith, testified that "[s]he was extremely upset" ¹² and that he had "never seen her act like that before. Crying. Just very scared. Just very upset." ¹³ He thought "something really bad had happened ... [and that he was] trying to calm her down." ¹⁴ After he was able to calm Ann down, she told him that "[t]he uncle, the friend's uncle" ¹⁵ had "touched her inappropriately." ¹⁶ He encouraged Ann to talk with her grandmother because he thought that Ann would not tell him more details about what had happened or where she was touched. Smith explained that he did not call the police "because [he] wanted to talk it over with her mother ... [and] get more information." ¹⁷

Ann's mother, Samantha Houghton, testified that she was still at work when she received a call from her mother—Ann's grandmother—about what had happened to Ann. Houghton testified that she was not able to get a lot of details from Ann over the phone about what happened because she thought Ann "was kind of embarrassed." ¹⁸ Houghton called the state police on her way home from work to inquire about what steps she should take. When asked about Ann's demeanor when she arrived home from work, Houghton testified that "you...