Berry v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN BERRY, §
§ No. 357, 2024
Defendant-Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. N2307003037
STATE OF DELAWARE, §
§
Appellee. §

Submitted: June 18, 2025
Decided: September 15, 2025

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court of the State of Delaware: AFFIRMED.

Patrick J. Collins, Esquire, Collins Price Warner Woloshin, Wilmington, Delaware,
for Appellant Kevin Berry.

Matthew C. Bloom, Esquire, Delaware Department of Justice, Wilmington,
Delaware, for Appellee State of Delaware.
LEGROW, Justice, for the Majority:

A Superior Court judge convicted the defendant, Kevin Berry, of first-degree

murder and related weapons charges in the death of Thaddeus Blackman. Berry’s

identity as the shooter was the primary fact in dispute at trial, and one witness,

Darnella Spady, identified Berry as the shooter when she was questioned by police.

At trial, however, Spady did not want to testify. After unsuccessfully attempting to

invoke the Fifth Amendment, Spady testified that she could not remember

Blackman’s shooting or the statement she gave to police.

The State sought to admit Spady’s out-of-court statement to police as

affirmative evidence under 11 Del. C. § 3507. After the State asked foundational

questions of Spady and the chief investigating officer, the court admitted Spady’s

out-of-court statement over Berry’s objection. Berry now appeals his convictions

on the basis that the trial court erred in admitting that statement. Through his appeal,

Berry seeks to reverse this Court’s recent ruling in McCrary v. State, which refined

the foundation that the State must establish through a declarant witness before an

out-of-court statement is admissible as affirmative evidence under Section 3507. We

decline to revisit that precedent because Berry has not identified an urgent reason to

do so, and we affirm Berry’s convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 12:40 p.m. on May 9, 2023, Thaddeus Blackman was

leaving the Lucky Stop convenience store on the corner of Market and Gordon

Streets in Wilmington when a masked gunman shot him three times at close range.1

The shooter was dressed in black with a hood covering his head and a mask covering

his face. Surveillance video from the area showed the shooter emerging from an

adjacent alleyway on Gordon Street shortly before murdering Blackman.2

Police found Blackman unresponsive at the scene.3 After efforts to revive him

were unsuccessful, Blackman was transported to the hospital, and police processed

the area for evidence. Among the evidence that they collected was surveillance

video obtained from Lucky Stop and Milton Liquors, a nearby establishment on

Market Street, and Ring camera footage from a neighboring home. The various

camera angles showed the sequence of events and helped police identify witnesses

who were present at the time of the shooting.4

The interior camera footage from Lucky Stop showed Isiah Barnett and

Darnella Spady in the store before the shooting. Blackman entered the store as

Spady was leaving, and exited the store himself about a minute later, just before the

1
Opening Br. at 6; App. to Opening Br. at A50 (Trial Tr.).
2
Id.
3
Id.
4
App. to Opening Br. at A129–30, A139 (Trial Tr.).

2
shooting.5 Exterior camera footage compiled from Lucky Stop, Milton Liquors, and

the nearby residence traced the gunman’s movements before and after the shooting.

The shooter first walked up East 23rd Street, passing postal worker James DeMaio,

and held his hand to his ear as though he were talking on a cellphone.6 The gunman

then turned down an alleyway, proceeded onto Gordon Street, and toward Lucky

Stop.7 The gunman passed Barnett, who was lingering near the intersection of

Market Street and Gordon Street.8 At the same time, Spady was walking down

Gordon Street toward Lamotte Street pushing a stroller of belongings when the

shooter passed her on his way to Lucky Stop.9

After the gunman shot Blackman, he swiftly retraced his steps up Gordon

Street, passed Spady again, and cut through the same alleyway onto East 23rd

Street.10 The shooter passed DeMaio a second time, this time in the opposite

direction, and walked briskly towards Lamotte Street.11 The Ring camera on

Lamotte Street captured two individuals dressed in all black standing at the corner

5
Opening Br. at 8.
6
Id.
7
App. to Opening Br. at A55 (Trial Tr.).
8
Id. at A52 (Trial Tr.).
9
Id. at A53 (Trial Tr.).
10
Id. at A53, A55 (Trial Tr.).
11
Id.

3
of East 23rd Street and Lamotte Street before they entered a residence at 31 East

23rd Street.12

Police interviewed Barnett, DeMaio, and Spady during the investigation.

Barnett told police that he was visiting his uncle on Carter Street on the day of the

shooting.13 After leaving his uncle’s home, Barnett passed two men exiting a silver

sedan in the vicinity of East 23rd Street and Lamotte Street. Barnett recognized the

vehicle as one that was often in the area.14 The two individuals exited the car

carrying a red Wawa bag, and Barnett described one as “light-skinned” and the other

as “dark-skinned.”15 Both individuals stood at the corner of East 23rd Street and

Lamotte Street before going into the house at 31 East 23rd Street.16 Barnett then

walked up Gordon Street and was standing on the corner of Market Street when he

heard gunshots.17 Barnett described the gunman as wearing all black with white

lettering on his sweatshirt and with his face concealed except for his eyes.18 The

12
Id. at A56 (Trial Tr.).
13
Id. at A60 (Trial Tr.). The State presented this information during its opening statements, but
Barnett could not be located during the trial and was not called as a witness. We include the
information that Barnett provided as background regarding the police investigation, not as
evidence of Berry’s guilt. Barnett’s statement and his absence at trial are not relevant to the appeal,
except that his absence from trial placed even more importance on Spady’s identification
testimony, a fact that the State does not dispute.
14
Id.
15
Id. at A61 (Trial Tr.).
16
Id.
17
Id. at A62 (Trial Tr.).
18
Id.

4
only additional detail Barnett gave about the shooter was that he seemed young,

consistent with the demeanor of the individuals Barnett had seen exit the silver sedan

before the shooting.19

DeMaio described the gunman as thin and taller than five feet eight inches.20

Seconds after hearing gunshots, he saw a man—dressed in all black with a black

mask21—exit the alley with his hand in his pocket, walk quickly past him on East

23rd Street, and enter a residence at 31 East 23rd Street.22 Before the gunman entered

the residence, DeMaio noticed another individual on the porch.23 He recalled seeing

both men pacing the street about five minutes earlier, before he began his mail

route.24

Detective Joseph Wicks, the chief investigating officer, identified Spady by

canvasing the area of the shooting. When Detective Wicks approached Spady on

the street, she acknowledged that she was the woman shown in a still image that

Detective Wicks had taken from the surveillance video of the shooting.25 Detective

Wicks invited Spady to speak with him at the police station, but she never appeared.

19
Id.
20
Id. at A247 (Trial Tr.).
21
Id. at A242–50 (Trial Tr.).
22
Id. at A243–47 (Trial Tr.).
23
Id. at A249–50 (Trial Tr.).
24
Id. at A249–51 (Trial Tr.).
25
Id. at A190 (Trial Tr.).

5
A few days later, on June 15, 2023, Detective Wicks spoke with Spady again on the

street.26 She agreed to be transported to the police station for an interview regarding

Blackman’s murder.27

During the interview, Spady exhibited signs of drug intoxication or

withdrawal—she rocked back and forth, asked for several coats because she was

cold, and dozed off a couple of times during the discussion. But Detective Wicks

did not believe that Spady was intoxicated, and she gave clear and comprehensible

answers to his questions.28 Spady stated that she knew Blackman as “YG,” and she

identified the masked shooter as “Gunner.”29 Spady spoke with “Gunner” when he

walked past her before the shooting, and she saw him run through the alleyway

immediately after the shooting.30 She described Gunner as having freckles,31 and

she identified 31 East 23rd Street as the location where she had previously purchased

drugs from him.32 Spady identified “Gunner’s” right-hand man as an individual

26
Id. at 192 (Trial Tr.).
27
Id.
28
Id. at A199 (Trial Tr.).
29
Id. at A194, A205 (Trial Tr.); Statement of Darnella Spady at 1:14–1:22, played as Exh. 1 to the
Court, Berry v. State, No. 2307003037 (Del. Super. Apr. 4, 2024) [hereinafter “Exhibit 1”].
30
Exhibit 1, at 2:50–4:08.
31
Statement of Darnella Spady at 9:35–9:43, played as Exh. 2 to the Court, Berry v. State, No.
2307003037 (Del. Super. Apr. 4, 2024) [hereinafter “Exhibit 2”].
32
Id. at 2:41–2:49; see also Exhibit 1, at 5:02–6:01.

6
known as “Margeez.”33 Spady stated that after the shooting, Gunner threatened her

and took her cellphone and identification, and she promised him that she would not

identify him as the shooter.34

During her interview, Detective Wicks showed Spady three photo lineups.

The first two lineups contained photographs of individuals the “Real Time Crime

Center” had identified as using the alias “Gunner.”35 Spady did not identify any of

those individuals as the shooter.36 The third lineup included photographs of people

known to frequent East 23rd Street, along with several “randomly placed

individuals.”37 In that lineup, Spady recognized both Margeez and Gunner.38 The

photograph of the individual whom Spady identified as Gunner was Kevin Berry.39

On July 10, 2023, a grand jury indicted Berry on charges of Murder First

Degree, PFDCF, and PFBPP. When Berry was arrested on July 18, 2023, he was

carrying a cellular phone and keys to a silver BMW.40 The BMW was searched, and

a red Wawa bag was found on a rear floorboard of the passenger compartment.41

33
Exhibit 2, at 7:39–7:55; see also App. to Opening Br. at A209.
34
Exhibit 1, at 6:55–8:15.
35
App. to Opening Br. at A207–08 (Trial Tr.).
36
Id. at A207 (Trial Tr.).
37
Id. at A208 (Trial Tr.)
38
Id. at A209 (Trial Tr.).
39
Id.
40
Id. at A267–68 (Trial Tr.).
41
App. to Opening Br. at A65, A358 (Trial Tr.).

7
Police executed a search warrant for 31 East 23rd Street, but the home was

deemed uninhabitable, and no relevant evidence was found inside.42 Another search

warrant was executed for 466 Robinson Drive, Berry’s reported residence, but

neither the murder weapon nor the shooter’s clothing was found.43 A search warrant

for cellphone tower records for Berry’s phone indicated that his cellphone was

located in the vicinity of the homicide around the time of the shooting.44

Berry waived his right to a jury trial and elected to proceed to a bench trial.

As the trial court recognized, the case turned on the shooter’s identification and

“largely hinged” on Spady’s testimony.45 When the State called Spady to testify,

she was uncooperative from the outset. Immediately after the State began its direct

examination, Spady attempted to “plead the Fifth” and stated, “I don’t want to

witness anything.”46 The court advised Spady that she did not have a Fifth

Amendment privilege under the circumstances, but the court allowed her to speak

with counsel.47 When Spady returned to the stand after consulting with counsel, she

began testifying but repeatedly stated that she did not recall her interview with the

42
Id. at A261 (Trial Tr.).
43
Id. at A262 (Trial Tr.).
44
Id. at A308 (Trial Tr.).
45
Id. at A363; see also Answering Br. at 12 (“Berry’s trial was about identification. One witness,
Spady, provided the definitive link establishing that Berry was Blackman’s killer.”).
46
App. to Opening Br. at A178 (Trial Tr.).
47
Id. at A176–81 (Trial Tr.).

8
police. Spady explained that she had been up for several days using heroin and was

under the influence when police spoke with her.48 Spady similarly denied any

recollection of the events that took place on the day of Blackman’s murder, stating

that she did not remember anything due to her heroin use.49

Throughout her testimony, Spady claimed a failure of memory in response to

most of the State’s questions.50 She repeatedly stated that she was drunk or using

drugs at the time, could not recall events, and had nothing to tell the State. Despite

this claimed memory lapse, Spady did answer some questions. She admitted that

she was the person in the video recording of her police station interview.51 Although

she claimed not to recall giving the statement, Spady was able to recall that she was

brought into the station in handcuffs by two officers.52 She further testified that she

was truthful in her statement to Detective Wicks.53 When shown police surveillance

footage from the crime scene, she acknowledged that she was captured on video

leaving Lucky Stop and later pushing a stroller down the street. Asked if this was

the day that Blackman was killed, Spady responded, “I guess.”54

48
Id. at A184–86, A219 (Trial Tr.).
49
Id. at A186–88, A219–22 (Trial Tr.).
50
Id. at A181–83 (Trial Tr.).
51
Id. at A185.
52
Id.
53
Id. at A216.
54
Id. at A187–88. See also id. at A128.

9
After Spady’s initial testimony, the State called Detective Wicks to testify

about her interview and statement.55 The State then moved to admit Spady’s

videotaped interview under 11 Del. C. § 3507.56 Before the court ruled, Berry

conducted a preliminary examination of Detective Wicks that probed Spady’s

intoxication during her interview and the voluntariness of her statement. Over

Berry’s opposition, the trial court then granted the State’s motion to admit Spady’s

statement under Section 3507, holding that the State had laid the required foundation

under the statute. The Court concluded that “[t]he threshold question is whether or

not the witness gave a voluntary statement, and this Court concludes that she did . .

. [and] under McCrary, I agree with the State that the Supreme Court has laid it out

that this testimony meets the threshold. So it’s admissible.”57

In addition to Spady’s testimony, the State called DeMaio, several officers

who investigated the shooting and processed the evidence, the medical examiner,

the DNA analyst, and an expert who analyzed the cell tower records. The State

obtained a material witness warrant for Barnett but was unable to locate him to

testify at trial.58 Because the State had referred to Barnett’s statements in its opening

and he appeared in some of the video surveillance footage admitted into evidence,

55
Id. at A189–200 (Trial Tr.).
56
Id. at A200 (Trial Tr.).
57
Id. at A204 (Trial Tr.).
58
Id. at A233, A356 (Trial Tr.).

10
Berry moved for a mistrial.59 The court denied that motion, stating that “it’s up to

me to decide whether or not that witness is credible. And I don’t place any stock in

witnesses that aren’t here and didn’t testify.”60

At the close of the evidence, the court found Berry guilty of Murder First

Degree, PFDCF, and PFBPP.61 The court later sentenced Berry to life imprisonment

plus ten years. Berry filed a timely appeal, arguing that the trial court erred and

abused its discretion in admitting Spady’s statement under Section 3507.

II. STANDARD OF REVIEW

This Court reviews “a trial court’s ruling admitting or excluding evidence for

an abuse of discretion.”62 “An abuse of discretion occurs when a court has exceeded

the bounds of reason in light of the circumstances, or so ignored recognized rules of

law or practice so as to produce an injustice.”63 We will reverse the trial court’s

factual findings only if they are clearly erroneous.64 The trial court’s legal

conclusions are reviewed de novo.65

59
Id. at A359 (Trial Tr.).
60
Id. at A363 (Trial Tr.).
61
Id. at A413 (Trial Tr.).
62
Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015).
63
Thompson v. State, 205 A.3d 827, 834 (Del. 2019) (quoting McNair v. State, 990 A.2d 398, 401
(Del. 2010)).
64
Loper v. State, 8 A.3d 1169, 1172 (Del. 2010).
65
Hall v. State, 788 A.2d 118, 123 (Del. 2001).

11
III. ANALYSIS

Both of Berry’s arguments on appeal relate to the admissibility of Spady’s

statement under Section 3507. Berry’s primary argument is that this Court should

reconsider and reverse its recent decision in McCrary v. State,66 which in Berry’s

view upended established precedent and deprived the trial court of any discretion

regarding the admissibility of Section 3507 statements. Second, even if we do not

overrule McCrary, Berry argues that the State’s questioning of Spady did not meet

the foundational elements that McCrary requires before a trial court may admit an

out-of-court statement as affirmative evidence. For the reasons set forth below, we

conclude that Spady’s police interview was properly admitted into evidence.

A. Berry has not offered any persuasive reason for this Court to revisit its
decision in McCrary.

In 1970, the Delaware General Assembly enacted what is now 11 Del. C. §

3507, which permits the use of prior out-of-court statements as affirmative evidence

in criminal prosecutions.67 The statute provides:

§ 3507. Use of prior statements as affirmative evidence.

(a) In a criminal prosecution, the voluntary out-of-court prior statement
of a witness who is present and subject to cross-examination may be
used as affirmative evidence with substantive independent testimonial
value.

66
290 A.3d 442 (Del. 2023).
67
11 Del. C. § 3507; 57 Del. Laws ch. 525 (2025). The statute originally was codified at 11 Del.
C. § 3509. It has not changed substantively since it was adopted.

12
(b) The rule in subsection (a) of this section shall apply regardless of
whether the witness’ in-court testimony is consistent with the prior
statement or not. The rule shall likewise apply with or without a
showing of surprise by the introducing party.

(c) This section shall not be construed to affect the rules concerning the
admission of statements of defendants or of those who are codefendants
in the same trial. This section shall also not apply to the statements of
those whom to cross-examine would be to subject to possible self-
incrimination.

The statute does not set forth a roadmap for how the proponent of a prior

statement may seek its admission, but several decisions of this Court have

interpreted the statutory language as imposing certain foundational elements to

admissibility. In Keys v. State—the Court’s first opportunity to interpret the

statute—we held that the statutory language required the State to produce the

declarant at trial and directly examine her.68 The Keys Court did not prescribe any

“precise form of direct examination,” but the Court held that the questioning “should

touch both on the events perceived and the out-of-court statement itself.”69 Later, in

Ray v. State, this Court held that the declarant witness also must testify about the

truth or falsity of the out-of-court statement.70

These foundational requirements came to be known as the “touching-on”

requirements, and they guided Section 3507’s application in both the trial court and

68
337 A.2d 18, 22–23 (Del. 1975).
69
Id. at 23.
70
587 A.2d 439, 443 (Del. 1991).

13
this Court in the decades that followed the statute’s adoption. In some of the cases

applying those requirements, this Court’s rulings implied that the declarant-witness

must give in-court substantive testimony about the events perceived, the out-of-court

statement, and the truthfulness of the statement.71 But in other cases, the Court did

not require a particular level of substantive testimony,72 and in our recent decision

in McCrary a majority of this Court clarified that “a particular level of testimony is

not required to lay a foundation for introducing a prior statement under Section

3507.”73

i. The McCrary decision

In McCrary, the Court addressed the admissibility of an out-of-court

statement by a child witness, L.F. L.F.’s out-of-court statement identified

McCrary—a classroom aide and bus monitor at L.F.’s preschool—as engaging in

sexual conduct against L.F. When she was called to testify, however, L.F.’s memory

was limited. She identified McCrary in court as the monitor on her bus, testified that

she talked to a woman about “bad touches,” and stated that she told the truth when

she talked about the “bad touches.”74 But L.F. could not recall the person who gave

the bad touches, and she did not otherwise provide testimony that connected

71
See, e.g. Black v. State, 3 A.3d 1077, 1082–83 (Del. 2010).
72
See, e.g. Johnson v. State, 338 A.2d 124, 128 (Del. 1975).
73
McCrary v. State, 290 A.3d 442, 459–60 (Del. 2023).
74
Id. at 448–49.

14
McCrary to the bad touches.75 On appeal, McCrary argued that the State failed to

satisfy the touching-on requirements because L.F. did not testify during her direct

examination about the events that she allegedly perceived. A majority of this Court

disagreed, holding that L.F.’s in-court testimony satisfied Section 3507’s

foundational requirements, and the trial court’s admission of her prior statement

therefore was not an abuse of discretion.76

The majority opinion discussed precedent interpreting the touching-on

requirements, exploring their origins and the practicalities undergirding them. In

particular, the McCrary court highlighted Keys’ requirement that the State produce

the witness and conduct a direct examination about both the events perceived and

the statement itself. The Court explained that these requirements stemmed from a

concern that merely making the declarant-witness available, while leaving it to the

defendant to call the declarant-witness, would improperly shift the burden to the

defendant and create the impression that the defendant was sponsoring the witness.77

The McCrary court explained that the touching-on requirements “are

manifestations of the Confrontation Clause and should be informed by Confrontation

Clause jurisprudence.” A witness who does not provide substantive testimony on a

75
Id. at 449.
76
Id. at 463.
77
Id. at 456 (citing Keys v. State, 337 A.2d 18, 23–24 (Del. 1975)).

15
topic nevertheless may be subject to cross examination on that topic, and a factfinder

may evaluate a witness’s credibility even if that witness claims not to recall anything

about a prior statement or an event.78 In fact, as earlier precedents recognized—and

as McCrary expressly reaffirmed—Section 3507 does not guarantee any particular

quality of cross examination, and a witness’s prior statement may be admitted even

if the witness has a limited memory on the stand or claims not to have perceived the

event or made the statement.79 “[T]here is nothing in [Section 3507] or its intent

which prohibits the admission of the statements on the basis of limited courtroom

recall.”80

The McCrary majority opinion identified precedents of this Court which

implied that a prosecutor could satisfy the Section 3507 touching-on requirements

by calling the witness and asking questions during direct examination about the

events perceived and the out-of-court statement, regardless of whether the witness’s

responses offered any substantive testimony about those topics.81 But the majority

acknowledged that other decisions “imply that the ‘touching on’ requirements

78
Id. at 459–60.
79
Id. at 457, 460.
80
Johnson v. State, 338 A.2d 124, 127 (Del. 1975).
81
McCrary, 290 A.3d at 458–59.

16
mandate at least some level of substantive testimony from a witness about the events

perceived and the out-of-court statement itself.”82

McCrary expressly adopted the former framework, explaining that the

purpose of the touching-on requirements was to ensure that the State opened the door

to cross examination on those topics, thereby allowing the defendant to test the

credibility of the prior statement and the factfinder to evaluate its truthfulness.83

Given that purpose, a prosecutor need not elicit a particular level of testimony about

the events perceived or the prior statement or obtain substantive testimony that the

prior statement was true in order to admit the statement under Section 3507.84

Accordingly, “what matters” for purposes of Section 3507 is that the factfinder is

able to evaluate the witness’s credibility and that the defendant is able to question

the witness about the prior statement and the events perceived without appearing to

sponsor his testimony.85

Two justices dissented from the portion of McCrary that affirmed the

admission of L.F.’s out-of-court statement under Section 3507. In the view of the

dissenting justices, the foundational requirements of Section 3507 mandate

substantive testimony by the declarant-witness about the events perceived and the

82
Id. at 459.
83
Id. at 459–60.
84
Id. at 459–61.
85
Id. at 460.

17
out-of-court statement.86 The dissenting justices would have excluded L.F.’s

statement because—although she was asked questions about the events perceived

and the out-of-court statement—her limited recall did not allow her to give sufficient

testimony on either of those foundational points. The dissent expressed the concern

that allowing Section 3507 statements to be admitted when the witness does not offer

substantive testimony touching on the events perceived and the out-of-court

statement would allow such statements to be used when a witness has a complete

failure of memory, which could violate a defendant’s confrontation rights.87

ii. Berry’s bid to overturn McCrary

On appeal, Berry argues that McCrary upended established jurisprudence and

that this Court should revisit that decision and return to what Berry characterizes as

“the longstanding principles informing” Section 3507’s application.88 Berry

describes those principles as a “well-established process of case-by-case analysis to

determine if Confrontation Clause rights are jeopardized” by the admission of the

out-of-court statement.89 Berry maintains that a witness must be required to testify

substantively about the events perceived and the out-of-court statement, as well as

the statement’s truth, before the statement may be admitted under Section 3507. The

86
Id. at 463–66.
87
Id. at 466–68.
88
Reply Br. at 3; Opening Br. at 34.
89
Reply Br. at 1, 3.

18
admission of Spady’s statement, Berry contends, demonstrates the Confrontation

Clause issues that arise if a witness is not required to provide substantive testimony

regarding the touching-on requirements: Spady’s drug use left her with no memory,

and Berry therefore could not effectively cross examine her or test the credibility of

her out-of-court statement.

Berry’s argument inviting this Court to revisit McCrary fails because it

disregards principles of stare decisis. In an effort to side-step precedent, Berry raises

a number of arguments, none of which meet the high standard that this Court requires

before it will overturn its previous rulings. First, Berry places unwarranted emphasis

on whether Spady was a “turncoat witness”—an issue that is not relevant for

purposes of Section 3507’s application. Next, Berry incorrectly argues that

McCrary divests a trial court of all discretion regarding the admissibility of

statements under the statute. And finally, Berry argues that McCrary allows the

State to circumvent a defendant’s confrontation rights, but the record demonstrates

that Berry was permitted to confront Spady and in fact did so at trial.

iii. Stare decisis and the absence of an urgent reason or clear
manifestation of error requiring the Court to overturn McCrary

Stare decisis is “an essential feature of common law systems.”90 Adherence

to precedent is fundamental to our legal system, allows for the predictable and

90
Brookfield Asset Mgmt., Inc. v. Rosson, 261 A.3d 1251, 1278 (Del. 2021).

19
consistent application of the law, and “contributes to the actual and perceived

integrity of the judicial process.”91 Under the doctrine of stare decisis, courts

overturn settled law “only ‘for urgent reasons and upon clear manifestation of

error.’”92 Even in cases involving constitutional claims, a “departure from precedent

‘demands special justification.’”93

Berry offered no such special justification here. In response to the State’s

reliance on stare decisis, Berry simply argued that the Court would not offend stare

decisis by returning to previous cases that interpreted Section 3507 as requiring a

witness to give substantive testimony on the touching-on requirements.94 Berry did

not offer an “urgent reason” to revisit McCrary, such as inherent confusion created

by the decision.95 He also did not identify a “clear manifestation of error.”96 As

discussed below, the trial court’s admission of Spady’s statement did not offend the

Confrontation Clause and was consistent with the foundational requirements of

Section 3507.

91
Id. (quoting Gamble v. United States, 587 U.S. 678, 691 (2019)).
92
Seinfeld v. Verizon Communications, Inc., 909 A.2d 117, 124 (Del. 2006).
93
Gamble, 587 U.S. at 691 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).
94
Reply Br. at 3.
95
See Brookfield Asset Mgmt, Inc., 261 A.3d at 1278–79.
96
Id. at 1278.

20
Stare decisis protects the interests of parties in the judicial system, who act in

reliance on precedent. Those reliance interests are especially strong in criminal

cases.97 Merely disagreeing with the reasoning or holding of a previous case is not

grounds to revisit it. This Court is particularly chary to overturn precedent where,

as here, the only change is the court’s composition.98 For all those reasons, we meet

Berry’s invitation to revisit McCrary with a substantial degree of caution.

Although Berry never expressly identifies what he contends are the special

circumstances justifying a retreat from McCrary, he advances a number of

arguments intended to call McCrary’s reasoning into doubt. First, he contends that

the analysis offered in McCrary focused on the need for Section 3507 in cases

involving a turncoat witness, and he argues that Spady was not such a witness. We

disagree with the premises underlying this argument.

For one, as Berry conceded at oral argument, McCrary’s application does not

turn on whether a witness is a “turncoat.”99 To the contrary, the foundational

requirements clarified in McCrary apply to witnesses generally, as the majority in

McCrary expressly acknowledged.100 In addition, Berry has not articulated any

97
Id. at 1279 n.147.
98
Id. at 1279. McCrary was decided recently but by a different composition of this court. The
integrity of our judicial system is premised on the view that foundational principles are established
in the law, not the “proclivities of individuals.” Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986).
99
See Oral Argument at 7:05–8:39, Berry v. State, No. 357, 2024 (Del. June 18, 2025).
100
McCrary v. State, 290 A.3d 442, 460 (Del. 2023) (“We believe that Section 3507 permits the
introduction of a prior statement by a turncoat witness because, once the prosecutor has asked the
21
doctrinal reason to apply different foundational requirements depending on whether

or not a witness can be considered a “turncoat,” nor has he explored how a trial court

would go about making that determination. Berry’s arguments are primarily

grounded in the Confrontation Clause, but he has not elucidated why a defendant’s

confrontation rights would turn on whether a witness has become “hostile” or

uncooperative to the State. We find Berry’s focus on whether Spady was a “turncoat

witness” misplaced.101

Berry next argues that this Court should abandon McCrary because the

foundational requirements that it adopts divest a trial court of all discretion regarding

questions and the witness has claimed not to recall, the factfinder can evaluate the truthfulness of
the testimony of the turncoat witness, and the defendant can cross examine on those same topics
without having to call the witness and seeming to sponsor their testimony. Those principles apply
not only to a turncoat witness but to witnesses generally.”).
101
The use of a phrase like “turncoat witness” is pejorative and recalls a witness “whose testimony
was expected to be favorable but who becomes (usually during trial) a hostile witness.” Id. at 467
(dissenting op.) (quoting Black’s Law Dictionary 1921 (11th ed. 2019)). It is equally—if not
more—common that a percipient witness who voluntarily speaks to police later becomes
intimidated by the idea of testifying at trial, either because that person fears reprisal or because the
setting itself is daunting. The record could be read to view Spady’s testimony in that light. Spady
made it clear from her first moments on the witness stand that she wanted to “plead the Fifth” and
did not want to “witness anything.” App. to Opening Br. at A178 (Trial Tr.). When the trial court
explained that she had to testify, Spady resorted to claiming a complete lack of memory due to
drug use, repeating variations of “I can’t remember” and “I was on drugs” in response to most
questions. See, e.g. id. at A182–84, A185, A187, A220. But Spady then recalled specifics several
times during her direct and cross examinations, including when she testified that she had been
awake for several days before she spoke to police; that Detective Wicks picked her up with another
officer and drove her to the police station; and that she was handcuffed when she was brought into
the station. Id. at A185, A219. The trial court made no factual finding about whether Spady was
a “turncoat witness,” but there are reasons in the record to question whether her failure of memory
was genuine, fear-based, or a combination thereof.

22
the admissibility of a Section 3507 statement.102 This argument ignores the purpose

of the touching-on requirements and the “voluntariness” determination that a trial

court must separately make before admitting a statement under Section 3507.

To reiterate, and as the McCrary court explained, the touching-on

requirements’ purpose is rooted in the Confrontation Clause. The requirements exist

to allow a defendant to cross examine the declarant witness and to allow the

factfinder to evaluate the witness’s credibility on the stand and in the out-of-court

statement. By requiring the State to call the declarant-witness to the stand and ask

questions relating to the events perceived and the statement given, the witness is

exposed to cross examination about those topics without the defendant having to

call—and appear to sponsor—the witness.

Importantly, the touching-on requirements are not the only foundational

elements that the State must meet to admit a statement under Section 3507. Before

the State may offer an out-of-court statement as affirmative evidence under the

statute, it must demonstrate that the statement was given voluntarily.103 The trial

judge must make a factual finding that the out-of-court statement was voluntary

102
Reply Br. at 3 (“Post-McCrary, the prosecutor only has to ask a few questions of the declarant
about the event perceived and the statement given. It makes no difference what the answers are.
If the witness utters any words in response, the prior statement must be admitted. The judge has
no discretion.”); see also Oral Argument at 4:24–4:57, Berry v. State, No. 357, 2024 (Del. June
18, 2025) (Berry’s counsel arguing that the prosecutor alone controls the admissibility of an out-
of-court statement under Section 3507).
103
Wyche v. State, 113 A.3d 162, 165 (Del. 2015); Smith v. State, 669 A.2d 1, 7 (Del. 1995).

23
before the jury may hear it.104 That factual determination is based on the “totality of

the circumstances” and is intended to determine “whether the witness’s ‘will was

overborne’ such that the proffered Section 3507 statement was not ‘the product of a

rational intellect and a free will.’”105 The trial court’s determination weighs

numerous factors, including the interrogation, the particular characteristics of the

declarant, and the tactics used by police to elicit the admissions.106

In Berry’s case, the trial court determined that Spady’s out-of-court statement

was voluntary, and Berry has not challenged that finding on appeal. But Berry’s

argument that the prosecutor now “controls” admissibility post-McCrary cannot be

squared with the voluntariness requirement and the associated factual finding that

the trial court must make under our precedent.

Finally, Berry argues that McCrary’s application in this case demonstrates

that a witness must provide substantive testimony on the touching-on requirements

to ensure that a defendant’s rights under the Confrontation Clause are respected. But

McCrary explains that “a witness need not provide substantive testimony on a topic

to be subject to cross examination on [that] topic[] or to have the truthfulness of their

104
Smith, 669 A.2d at 7.
105
Wyche, 113 A.3d at 165–66 (quoting State v. Rooks, 401 A.2d 943, 949–50 (Del. 1979)); see
also Collins v. State, 56 A.3d 1012, 1018 (Del. 2012).
106
Starling v. State, 130 A.3d 316, 328–29 (Del. 2015); Baynard v. State, 518 A.2d 682, 690 (Del.
1986).

24
testimony assessed.”107 The trial court did not limit defense counsel’s cross

examination, and counsel asked Spady numerous questions on cross. The

Confrontation Clause “guarantees an opportunity for effective cross-examination,

not cross examination that is effective in whatever way, and to whatever extent, the

defense might wish.”108 As a result, a witness’s memory lapse does not deny a

defendant his rights under the Confrontation Clause.109 The United States Supreme

Court has held that the right of cross-examination is “fully satisfied,” despite a

witness’s failure of memory, as long as the factfinder can observe the witness’s

demeanor under cross examination and the witness is testifying under oath and in

the presence of the accused.110

Even if there may be circumstances “in which a witness’s lapse of memory

may so frustrate any opportunity for cross-examination” as to violate the

Confrontation Clause,111 the record dispels Berry’s argument that Spady’s failure of

memory precluded any opportunity to cross examine her. Defense counsel

questioned Spady at length, probing her copious drug use and the effects of those

drugs on her perception and memory. Counsel repeatedly confirmed that Spady

107
McCrary v. State, 290 A.3d 442, 459 (Del. 2023).
108
Delaware v. Fensterer, 474 U.S. 15, 20 (1985). See also El-Abbadi v. State, 312 A.3d 169, 193
(Del. 2024).
109
Fensterer, 474 U.S. at 19–20.
110
Id. at 20.
111
Id.

25
could not remember anything of substance because of her heroin use.112 The trial

judge as factfinder could consider the effect of Spady’s heroin use on her ability to

observe Blackman’s murder, recognize and correctly identify the shooter, and

provide a reliable statement to the police.

On appeal, Berry identifies a host of other questions that he contends counsel

was unable to ask during cross examination: (i) how Spady was able to observe

Gunner “in the moment, which lasted a few seconds at most in a stressful situation”;

(ii) how Spady was able to witness the shooting when the surveillance footage

showed her at least 50 feet away seconds after the shooting; (iii) how confident

Spady was in her identification of Gunner, given that he was masked and hooded;

(iv) how Spady knew the shooter as “Gunner”; (v) how certain Spady was that

Gunner lived at 31 East 23rd Street; and (vi) where and when Gunner purportedly

took Spady’s phone.113 But defense counsel could have asked Spady all those

questions, and her answers—or her inability to answer them—could have informed

the factfinder’s judgment regarding her credibility.

At oral argument on appeal, counsel stated that he did not ask the questions

because he did not believe that he would get a response.114 But a witness’s inability

112
App. to Opening Br. at A217; A219–21 (Trial Tr.).
113
Opening Br. at 43–44.
114
Oral Argument at 19:01–19:59, Berry v. State, No. 357, 2024 (Del. June 18, 2025).

26
to answer questions can itself discredit her testimony.115 Moreover, as previously

discussed, Spady’s failure of memory was not absolute; at several points during her

in-court testimony she recalled specific details.116 Berry’s counsel’s decision not to

ask certain questions cannot be equated with the lack of an opportunity to do so.

In short, none of the arguments that Berry raises constitute an urgent reason

to revisit McCrary or a clear manifestation of error resulting from McCrary. This

Court requires such a showing before it will revisit precedent. The standards

announced in McCrary continue to govern the admissibility of out-of-court

statements under Section 3507.

B. The State’s direct examination of Spady satisfied Section 3507’s
foundational requirements.
Berry separately argues that even if this Court does not reverse McCrary, the

State’s direct examination of Spady did not satisfy Section 3507 because the State

did not ask questions touching on the event perceived.117 He contends that because

the State did not ask Spady whether she was present for or witnessed the killing, her

out-of-court statement was not admissible.118 We disagree.

115
See Fensterer, 474 U.S. at 19.
116
See infra note 101.
117
Opening Br. at 46. Berry does not argue that the State did not satisfy the touching-on
requirements regarding Spady’s out-of-court statement.
118
Reply Br. at 6.

27
Notwithstanding Spady’s repeated testimony that she lacked memory as a

result of her drug use, the State questioned her about Blackman’s shooting and her

presence in the area that day. Specifically, to address her claimed memory loss, the

State showed Spady the video surveillance of the minutes before, during, and after

Blackman’s shooting.119 Spady confirmed that she was in the video and that she

could be seen walking into Lucky Stop in the video.120 The prosecutor then showed

Spady a point in the video in which she was walking down the street with a stroller,

and she confirmed again that it was her.121 The State then asked, “and that was when

[Blackman] was killed, right?” and Spady responded, “I guess so.”122 Those

questions confirmed that Spady was present when Blackman was shot and subjected

her to cross-examination about the events of that day.

We review a trial court’s decision to admit evidence for abuse of discretion.123

The trial judge held that Spady’s testimony met the threshold for admissibility.124

The State’s questions, which sought to draw out substantive testimony from Spady

regarding her presence at the scene when Blackman was killed, can be viewed as

119
App. to Opening Br. at A187 (Trial Tr.).
120
Id.
121
Id. at A188 (Trial Tr.).
122
Id. at A187–88 (Trial Tr.).
123
Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015).
124
App. to Opening Br. at A204 (Trial Tr.).

28
touching on the events perceived. The trial court’s holding did not exceed the

bounds of reason or ignore recognized rules of law or practice, and it therefore did

not constitute an abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the Superior Court’s decision and

Berry’s convictions.

29
TRAYNOR, Justice, dissenting:

I agree with my colleagues in the majority that the trial court’s admission of

Darnella Spady’s out-of-court statement—the evidence upon which the prosecution,

in the trial court’s words “largely hinge[d]”125—can be squared with this Court’s

majority opinion in McCrary. Even so, for the reasons stated in my dissent in that

case and because I perceive that Berry’s first-degree murder conviction and life

sentence rest on an out-of-court statement, the truthfulness of which could not be

tested by cross-examination in any meaningful way, I respectfully dissent.

My dissent proceeds from the premise that Spady’s inability to recall either

the events in question or her statement to Detective Wicks was not a contrived

memory lapse or the type of partial memory failure that is endemic to the human

condition. Although skeptical of that premise,126 the majority’s reasoning implies

that the legitimacy of a witness’s total memory loss is irrelevant to the admissibility

of the witness’s statement under § 3507. If my reading of the majority’s reasoning

is correct that a witness’s memory loss is not feigned but real simply does not matter.

If, according to the majority, the witness is called to the stand by the prosecution and

the trial court finds that the prior out-of-court statement was made voluntarily—a

determination no doubt complicated by the witness’s memory loss—the statement

125
App. to Opening Br. at A363.
126
See Majority Op. at 22 n. 101.
30
comes in, no matter that cross-examination will be nothing more than an empty

exercise.127 This, it seems to me, devalues the premium our jurisprudence has

traditionally assigned to the role of cross-examination in the truth-seeking process.

As Justice Scalia observed in his pivotal Confrontation Clause opinion in

Crawford v. Washington, “the principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and particularly its use of ex

parte examinations as evidence against the accused.”128 Before McCrary, this Court

was mindful of this focus and thus aspired to carefully circumscribe the use of §

3507 to secure criminal convictions.129 McCrary, as I endeavored to explain in my

127
The implications of using § 3507 as a vehicle for introducing an out-of-court statement of a
witness whose memory loss is complete and demonstrably real are troubling. One need only
consider a witness who suffers from Alzhemier’s disease and consequently has no memory
whatsoever of the facts that form the subject matter of her out-of-court statement or the statement
itself. Under the majority’s reading and application of McCrary, a trial court may accord the
witness’s uncross-examined out-of-court statement substantive, independent, testimonial value
upon a finding, based solely on the testimony of the person who heard the statement—in most
instances a police officer—that it was made voluntarily. I find such a scenario worrisome.
128
541 U.S. 36, 50 (2004). I note that Berry has not argued that the admission of Spady’s out-of-
court statement violated his Confrontation Clause rights.
129
See, e.g., Ray v. State, 587 A.2d 439, 444 (1991) (“[T]he use of hearsay statements under section
3507 must be carefully circumscribed in order to avoid, as occurred here, the only direct evidence
concerning the commission of the offense against a child being presented through the testimony
of third parties relating what the victim stated on a prior occasion.”); see also Johnson v. State,
338 A.2d 124, 128 (Del. 1975) (adopting a case-by-case approach to determining whether
introduction of an out-of-court statement under § 3507 violates the Confrontation Clause because
of the lack of effective cross-examination); Keys v. State, 337 A.2d 18, 24 (Del. 1975) (Quillen,
C., concurring) (recognizing potential unfairness when the State is “permitted to prove its case
through a single police witness who did not see the incident and who relied solely on what
eyewitnesses told him.”).
31
dissent in that case, undermined that effort, and this case administers the coup de

grâce.

To be clear, I accept that a witness’s fading memory of the relevant events and

her out-of-court statement should not categorically preclude admission of the

statement under § 3507, assuming other foundational requirements are met. But I

would hew more closely than the majority does to our Court’s statement in Ray,

which we more recently reiterated in Blake,130 that “a witness’[s] statement may be

introduced [under § 3507] only if . . . [she is] subject to cross-examination on the

content of the statement as well as its truthfulness.”131 Here, because of Spady’s

total memory loss occasioned by chronic heroin and alcohol intoxication, she was

not, practically speaking, subject to cross-examination on the content of her

statement.

Nor am I persuaded by the majority’s conclusion that, because Spady

confirmed that she was the person depicted on the surveillance video, her testimony

on direct examination sufficiently “touched upon” the events that formed the subject

matter of her out-of-court statement.132 This testimony, without more, does not

130
Blake v. State, 3 A.3d 1077, 1083 (Del. 2010).
131
Ray, 587 A.2d at 443 (emphasis added) (citing Johnson 338 A.2d at 127).
132
My concern here assumes that McCrary has not eliminated the guidance provided in Johnson,
see supra note 129, that the Court will engage in a case-by-case analysis to determine whether
introduction of an out-of-court statement under § 3507 violates the Confrontation Clause when
cross-examination is, as a practical matter, precluded.
32
establish that, when Spady was testifying, she had personal knowledge concerning

the relevant events and, in particular, the identity of the shooter. 133 Her testimony,

in fact, suggested the opposite.

Admittedly, Berry has not argued that the admission of Spady’s statement to

Detective Wicks violated his confrontation rights under the Sixth Amendment. Yet

it bears noting this Court has repeatedly recognized the threat that the unbridled

deployment of § 3507 can pose to an accused’s right to confront and cross-examine

the prosecution’s witnesses. The trend of this Court’s jurisprudence, as evidenced

by McCrary and the majority opinion in this case, suggests a diminished concern for

the rights of the accused in this area. I find that regrettable.

But even though a constitutional claim under the Confrontation Clause was

not made or may not be viable in this case, our trial courts are yet required to exercise

their sound discretion when determining the admissibility of statements under §

3507. In this case, I would find that the trial court’s admission of Spady’s ex parte,

133
One scholar has questioned how a witness who has no memory of the underlying events and
her prior out-of-court statements “would be allowed to testify at all, because . . . the witness could
not possibly meet the personal knowledge requirement that is required of all witnesses.” Ann M.
Murphy, Vanishing Point: Alzheimer’s Disease and its Challenges to the Federal Rules of
Evidence, 2012 MICH. ST. L. REV. 1245, 1267 (2012); see also D.R.E. 602 (“A witness may testify
to a matter only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.”). I acknowledge that Berry did not challenge Spady’s
competency to testify on this ground, nor has he raised this issue on appeal.
33
out-of-court statement as the principal evidence of Berry’s guilt was an abuse of

discretion.

34