1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

) Def. I.D. # 2108001587A

v. )

)

)

RHANDY D. MASSEY

, )

)

Defendant. )

Submitted: March 1, 202 3

Decided: March 7 , 2023

Upon Defendant’s Motion for a New Trial

DENIED

MEMORANDUM OPINION AND ORDER

Rebecca E. Anderson, Esqui re , Deputy Attorney General, Department of Justice, 13

The Circle, Georgetown, DE 19947; Attorney for State of Delaware.

John R. Garey, Esquire, 48 The Green, Dover , DE 19 9 01; Attorney for Defendant

Rhandy Massey

.

KARSNITZ, R. J.2 I. Background

Rhandy D. Massey (“Defendant”) was charged with multiple criminal

offenses stemming from allegations made by his two minor daughters, M.M. and

L.M., of sexual abuse. At the conclusion of a week

- long jury trial, on January 27, 2023

Defendant was convicted of most of the charges. 1 Defendant has not been sentenced.

On February 6, 2023, D efendant filed a motion requesting a new trial (the “Motion”)

pursuant to Delaware Superior Court Criminal Rule 33. In support of the M otion

,

D efendant argues two grounds: (1) that I used an incorrect legal standard in denying

Defendant 's request for an in camera proceeding under 11 Del. C

. § 3508

, and (2)

that I failed to find a substantial need that would allow one of the alleged victims to

hold a stuffed animal during her testimony.

II. Analysis

A. The § 3508 Motion

On Friday, January 20, 2023 (the Friday before trial was to begin)

, Defendant

submitted a motion pursuant to 11 Del. C . § 3508, requesting an in camera hearing

to determine the admissibility of prior sexual conduct pertaining to the alleged

victims in this matter, L.M. and M.M.

. 2 Defendant 's motion initially addressed three

1 He was acquitted of a Rape in the Second Degree regarding L.M., but convicted of the lesser included offense of Unlawful Sexu al

Conduct First Degree.

2 The filing of the motion was not in accordance with our case manage ment plan. See Superior Court Sussex County Case

Management Plan, Pre

- trial motions. Defendant had been supplied the information which he contended supported the motion a year

before trial. Defendant’s delay in presenting the motion placed unnecessary s tress on the Court and its processes, as well as the

Prosecutor. While the delay could have been considered a waiver of the issues Defendant presented, in an effort to be fair t he Court

considered the motion on its merits.3

prior allegations : (1) an allegation made by both girls against their half

- brother

,

N.M.

, 3 (2) statements by a babysitter about discussions of sexual issues between the

girls themselves, and (3) an allegation made by the g irls against Defendant unrelated

to the current charges

. A reading of the information Defendant supplied in his filing

showed this third incident to consist of horseplay between him and M.M. where

Defendant’s elbow struck M.M.’s crotch area and caused her injury. No claim of s e x

abuse appears in the police report supplied by Defendant. The key issue prior to trial

became allegation (1). The State filed its response via email on Sunday, January 22,

2023. I addressed the motion on Monday, January 23, 2023, in a pre

- trial hearing

before jury selection began

. I denied the motion for a n in camera § 3508 hearing

.

Defendant now argues that I applied the wrong legal standard when denying

Defendant 's motion prior to trial. Defendant cites Bryant v. S tate 4 as the proper

legal standard. However, th e Delaware Supreme Court in Bryant specifically notes,

" T he Superior Court did not consider the Rape Shield Statute in its ruling and in this

appeal the State has not relied upon the statute as a basis for exclusion." 5 T he

decision instead focuses on the ability of counsel to cross

- examine a witness

concerning prior specific incidents of untruthfulness. 6 Defendant , in the M otion,

argues that the Delaware Supreme Court created a standard when it stated: " E ven

where the evidence is inconclusive as to falsity, prior allegations of sexual assault

3 Initials are used throughout t o provide some protection for the minors.

4 734 A.2d 157 (Del. 1999).

5 Id. at *2 n.2.

6 Id

. at *2

.4

may be admitted to challenge credibility .” 7 The Supreme Court went on to

say:

Given the minimal corrob or ative evidence in this case and the unusual

social history of the complaining witnesses the issue of credibility

looms large. Any attempt to restrict cross

- examination under these

circumstances must proceed on a complete record with a full

appreciation of the relevance of such testimony. We conclude that, on

this record, the trial court's ruling regarding the five excluded

allegations, without further effort to determine their falsity, was an

abuse of discretion. Because we cannot with confidence assess the

impact of the excluded evidence, we must reverse and remand for a

new trial. 8

The Massey case is distinguishable from Bryant

. Bryant notes that "the precise issue

is not before us...

. " 9 Furthermore, the allegations in the Bryant case included two

allegations which were demonstrably false because the alleged victims recanted their

statements. Such recantation evidence o r o t h e r e v i d e n c e o f f a l s i t y does

not exist here. M o r e o v e r , Bryant did not address 11 Del. C

. § 3508 and how that

specific statute would affect the admissibility or inadmissibility of supposed prior

false allegations.

Rather, I relied upon State v. Bailey

, 10 a § 3508 case. The Delaware Superior

Court in that case found that prior allegations of sexual assault may be admissible

at trial only if Defendant makes a showing that the witnesses' prior allegations of

7 Id

. at * 3.

8 Id.

9 Id

. 10 1996 WL 587721 (Del. Super. Sept. 12, 1996).5

sexual assault were false. 11 Here

, Defendant failed to make any showing of falsity,

only self

- serving assertions that the prior allegations were false accusations. There

have been no recantations of any prior allegations against either N .M. , the half

- brother

to both alleged victims, or against Defendant . In fact, both alleged victims referenced

N .M. in their forensic interview at the Children's Advocacy Center following the ir

allegations of abuse against Defendant . During that interview, both girls maintained

that something had occurred with N .M. previously.

Additionally, I continue to believe that a n appropriate purpose for introduction

of this evidence was not shown by Defendant. Defendant wanted to make the

contradictory argu ments that the alleged victims were lying about N .M. , but that they

were previously abused by N .M

. None of the police reports provided to Defendant

during pre

- trial discovery show that either alleged victim provided false information

or lied about the prior allegations against N .M. or anyone else

.

At the pre

- trial hearing , I observed that Defendant had not met the standard of

"clear and convincing" evidence, or even a lesser standard

, to allow for introduction

of this evidence at trial. I did not want the trial to turn into a trial within a trial.

Because I applied the applicable standard, I deny this ground for a n ew trial.

B. The Stuffed Animal

11 Id. at *6.6

Defendant 's second ground is based upon one of the alleged victims, M.M.,

holding a stuffed animal during her trial testimony. This was addressed at trial prior to

M.M. taking the stand and outside the presence of the jury. The State notified

Defendant that the children wanted to hold a stuffed animal while testifying.

Initially, both children indicated that they would feel more comfortable with a

stuffed animal. This information was relayed to me. However, only M.M. brought

a stuffed animal to the stand during trial. Defendant th e n raised the issue with me,

and I asked the State to make a motion as to the necessity of the stuffed animals.

In doing so, t he State motioned that the stuffed animals were recommended to

them by their counselor to help them feel more comfortable at trial. The State also

indicated that the stuffed animals were small.

I allowed the stuffed animals but noted the children were not to hold them

up or wave them around , and that they could hold the animals close to them . The

children were informed about my instructions by the State. No further objections

were made by Defendant during trial that would indicate M.M. was holding up

the animal, waving it around, or otherwise making it noticeable to the jury.

I observed M .M. as she testified. The bear clutched in her hand was barely

visible. The minor witness was a small child obviously distressed to be in a

courtroom testifying.7

In support of the Motion on this ground

, Defendant relies upon Czech v.

State

. 12 This case deal s with "special accommodations" for child witnesses as

set forth in 11 Del. C

. § 5131. The Czech Court specifically addressed the

appropriateness of a support person for a child witness

. I n that case, the child's

mother was allowed to sit behind the child as she testified before a jury. 13 The

trial judge in Czech suggested this sua sponte, which the Delaware Supreme

Court found to be inappropriate. The Court concluded that special

accommodations should be made only if the requesting party has demonstrated a

"substantial need" for their implementation. 14 The Court found that, while the use

of the support person may have been prejudicial, any prejudice was harmless. 15

The Court noted that the child's testimony in Czech was not particularly he lpful

to the State's case and that the prosecution presented the substance of its case through

the forensic interviews shown to the jury. 16

Similarly, in the Massey trial, the Stat e presented its case as it pertained to

M.M.'s allegations in part through M.M.'s forensic interview at the Children's

Advocacy Center ("CAC"). M.M.'s testimony during trial was limited in detail or

specific recollection of events; therefore, her statement made at the CAC was

12 945 A.2d 1088 (Del. 2008).

13 Id. at 1093

. 14 Id

. at 1094.

15 Id

. at 1095.

16 Id

.8

admitted under 11 Del. C

. § 3507 and 11 Del. C

. § 3513.

In further support of the Motion on this ground

, Defendant also relies upon

Gomez v. State

. 17 Defendant in that case did not object to the child witness holding a

teddy bear during trial, so it was never addressed by the trial judge

. In providing

guidance for the new trial, the Supreme Court stated, " I t would have been appropriate

for the trial judge also to have required t he prosecutor to demonstrate a substantial

need for the additional special accommodation of a teddy bear." 18 However, the

Supreme Court did not reverse or remand the case on this ground.

In the this case, the State told me that M.M. and L.M.'s counselors had

recommended that the girls be able to have stuffed animals to make them feel more

comfortable during trial. M.M. was just nine years old at the time that she testified

against her father during trial. I allowed it but only under the condition that the child

be instructed not to put the stuffed animal on display, which she did not. M.M. and

L.M. were always going to be sympathetic witnesses and for me the bear added

nothing. I instructed the jury to not allow sympathy to in any way guide their verdict.

The jury was discerning as shown by its verdict. The State justified the use of the

teddy bear, and it was barely visible and added nothing to the sympathy factor the

minor witness created.

17 25 A.3d 786 (Del. 2011).

18 Id. at 799.9 C. Rule 33

Superior Court Criminal Rule 33 permits me to grant a new trial if it is

“required in the interest of justice.” I find no showing by Defendant that a new

trial is required under this standard and the cases decided under Rule 33. In

addition to the testimony of the two girls, the State presented physical evidence

in the form of a blanket and t

- shirt that were tested by the Division of Forensic

Sciences; Defendant 's semen was found on both items. This physical evidence

corroborates the alleged victims' statements as to Defendant 's conduct.

Additionally, the State presented evidence of Defendant 's consciousness of guilt

,

in that he fled following the allegations and admitted to the lead detective that he

regretted doing so.

III. CONCLUSION

For the foregoing reasons, Defendant Rhandy Massey’s Motion for a New Trial

is DENIED

.

IT IS SO ORDERED

.

/s/ Craig A. Kars nitz

Craig A. Karsnitz

cc: Prothonotary