IN THE SUPREIVIE COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, §
§ No. 692, 2015
Plaintiff-Below, §
Appellant, § Court BeloW-Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 9808000280A
DAMONE FLOWERS, §
§
Defendant-Below, §
Appellee. §
Submitted: September 14, 2016
Decided: October 21, 2016
Before STRD\IE, Chief Justice; HOLLAND, VALIHURA, VAUGHN and
SEITZ, constituting the Court en Banc.
Upon appeal from the Superior Coult. REVERSED.
Elizabeth R. McFarlan, Esquire (Argued), Department of Justice, Wilmington,
Delaware, Attorney for Plaintiff-Below, Appellant.
Michael W. Modica, Esquire (Arguea), Wilmington, Delaware, Attorney for
Defendant-Below, Appellee.
HOLLAND, Justice; for the Majority:
The defendant-below, appellee, Damone Flowers’ second Motion for Post-
Conviction Relief Was referred to a Superior Court Commissioner, Who issued a
report recommending that the Superior Court grant Flowers’ motion for relief. The
Superior Court adopted in part and denied in part the Commissioner’s report and
granted Flowers’ relief. The State appeals from the Superior Court’s final judgment.
The State argues that Flowers’ second Motion for Post-Conviction Relief Was
untimely under Criminal Rule 61(i)(1), because it Was filed more than three years
after his conviction became final in September 2004. The State also argues that the
claims in that motion Were barred as repetitive under Rule 6l(i)(2), because the
claims Were not raised in Flowers’ first Motion for Post-Conviction Relief.
The Superior Court correctly recognized that Flowers’ Post-Conviction
motion Was untimely under Criminal Rule 6l(i)(1), as he filed the motion more than
three years after his conviction became fmal With the issuance of the mandate Hom
this Court in September 2004. The Superior Court also correctly recognized that the
claims in the motion Were barred as repetitive under Rule 61(i)(2), because the
claims could have been, but Were not, raised in Flowers’ first Motion for Post-
Conviction Relief`.
However, the Superior Court invoked an exception to the procedural bars as
a basis f`or addressing Flowers’ motion on the merits. At the time of`FloWers’ second
Motion for Post-Conviction Relief, the bars to relief in Rule 6l(i)(l)-(3) did not
apply “to a colorable claim that there was a miscarriage of justice because of a
constitutional violation that undermined the filndamental legality, reliability,
integrity[,] or fairness of the proceedings leading to the judgment of conviction.”1
We have concluded that Flowers’ second Motion for Post-Conviction Relief
was untimely and that the exception to those procedural bars was not properly
invoked by the Superior Court. Theref`ore, the judgment of the Superior Court must
be reversed.
Direct Appeal
Flowers was convicted of Murder in the First Degree and Possession of a
Firearrn during the Commission of a Felony on October 30, 2002, and sentenced to
life in prison, plus ten years. On August 3l, 2004, this Court affirmed Flowers’
convictions. The historical facts which led to Flowers’ convictions are summarized
in this Court’s decision in his direct appeal as follows:
On August l, 1998, Alfred Smiley drove a car with two
passengers in the area of 22nd and Lamotte Streets in
Wilmington. At some point, Smiley became involved in
an argument with several people on the street. A gunshot
fired from the sidewalk next to the car struck Smiley in the
chest. The car careened out of control on the street and
came to rest against a utility pole. Wilrnington police
responded to the call and took Smiley to the hospital where
he died from the gunshot wound.
The State charged Damone Flowers with Smiley’s murder
and presented five witnesses at trial who were alleged to
1 super cr. crim. R. 61(1)(5).
have been present at the scene of the shooting. Most of
the incriminating evidence was presented through pretrial
taped statements.
At Flowers’ trial, the State admitted the pretrial taped statements of five witnesses
pursuant to 11 Del. C. § 3507. A review of testimony of Vernon Mays, Matthew
Chamblee, Ronetta Sudler, Tysheik McDougall, and Othello Predeoux reflects that
none of the witnesses Were asked by the State whether their pretrial taped statements
were true.
Post-Conviction Motions
On May 3, 2005 , Flowers filed a pro se Motion for Post-Conviction Relief.
The Superior Court dismissed the motion without prejudice and stated that Flowers
may amend the motion. Instead, Flowers appealed to this Court and that appeal was
dismissed as untimely.
On May 14, 2012, Flowers filed a second pro se Motion for Post-Conviction
Relief. He subsequently obtained Rule 6l Counsel, and filed an amended and
superseding Motion for Post-Conviction Relief. Flowers presented five claims of
ineffective assistance of counsel: Claim One, that trial counsel failed to object to the
admission of five videotaped statements admitted at trial pursuant to ll Del. C. §
35 07 based on the State’s failure to lay the proper foundation; Claim Two, that trial
counsel failed to object to three of the Section 35 07 statements as cumulative; Claim
Three, that trial counsel failed to object to the Section 3507 videotaped statements
going back to the jury during deliberations; Claim Four, that trial counsel failed to
call four allegedly exculpatory witnesses; and Claim Five, that appellate counsel
failed to raise the underlying claims on direct appeal.
Commissioner’s Report and Recommendation
The motion was referred to a Superior Court Commissioner in accordance
with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62.2 The Commissioner
issued the Report and Recommendation, stating that the defendant’s Motion for
Post-Conviction Relief should be granted. The Commissioner found that Claim One
is not barred by Rule 61 because a constitutional violation occurred when the Section
3507 statements were admitted without proper foundation and it was appropriate for
the Superior Court to consider it under the exception to procedural bars set forth in
Rule 61(i)(5).
The Commissioner then addressed each of Flowers’ claims under the
Stricklana'3 Standard. Under Claim One, the Commissioner found that trial counsel
could have, and should have, objected to the incomplete foundation prior to the
admission of the Section 3507 statements Thus, the Commissioner concluded that
had the statements not been presented at trial, there is a reasonable probability that
the outcome would have been different and Flowers should be granted relief on this
2 Id. 62(a)(5)(ii).
3 Strickland v. Washz'ngton, 466 U.S. 668 (1984).
5
claim. The Comrnissioner found that Claims Two, Three and Four were all without
merit and found that Claim Five did not need to be addressed in light of the ruling
as to Flowers’ First Claim.
Superior Court Granted Post-Conviction Relief
After reviewing the Commissioner’ s Report and Recommendation, as well as
the State’s objection and Flowers’ response, the Superior Court issued a decision
adopting in part and denying in part the Comrnissioner’s Report and
Recommendation. The Superior Court adopted in part the Comrnissioner’s
recommendation to dismiss Claims Two, Three, and Four, and granted Defendant’s
Motion of Post-Conviction Relief on Claims One and Five. Only Claims One and
Five are at issue in this appeal.
The Superior Court’s reasoning on Claim One was that although Flowers’ trial
counsel had made a reasonable decision not to object to the admission of the Section
3507 statements for failure of the State to ask the witnesses about the truthfulness of
their statements,4 and thus had not violated Strickland,5 the same lawyer had, as
appellate counsel, breached his duties under Strickland by failing to argue that the
Superior Court had committed plain error by not itself acting to interpose the
objection he had strategically chosen not to assert.6 Based on that logic, the Superior
4 State v. Damone Flowers, 2015 WL 7890623, at *5 (Del. Super. Ct. Nov. 20, 2015).
5 Id.
6 Id.
Court held that there was prejudice because on appeal there was no basis to cure the
failure to ask the foundational question, and that this Court’s precedent had read
Section 3507 as requiring that witnesses be asked about the truthfulness of their
statements before admission.7
The Superior Court then held that this Strz'ckland violation gave rise to a denial
of Flowers’ Sixth Amendment right to condontation, stating “Trial Counsel’s failure
to object to the improper foundation for admission of the five section 3507
statements resulted in a violation of Defendant’s Sixth Amendment right to
confrontation.”8 The Superior Court also granted Claim FiVe on the basis of
“Counsel’s failure to raise the same issue on direct appeal, which constituted
ineffective assistance of counsel.”9
As a preliminary matter, we note that the Superior Court did not consider that
a claim of ineffective assistance of trial counsel cannot be raised in a direct appeal.10
Section 35 07 Foundational Requirements
In Woodlz'n, this Court noted that there are certain threshold requirements to
admissibility that must be met before a Section 3507 statement can be heard by the
jury:
7 Id.
8 Id.
9 Id.
10 Sahin v. S¢a¢e, 7 A.3d 450 (Del. 2010).
of the witness’ prior statement13
A statement offered under Section 3507 must be offered
before the conclusion of the direct examination of the
declarant. The prosecutor must inquire about the
voluntariness of the statement during the direct
examination of the declarant, and the judge must make a
ruling on whether the declarant made the statement
voluntarily before the statement may be submitted to the
jury for consideration11
In Wooa’lz'n,12 this Court also set forth a comprehensive review and analysis of
the Section 3507 foundational requirements that must be established by the State
during the direct examination of a witness, as a condition precedent to admissibility
summarized by this Court more than twenty-five years ago in Ray v. State:
“In order to offer the out-of-court statement of a witness,
the statute requires the direct examination of the declarant
by the party offering the statement, as to both the events
perceived or heard and the out-of-court statement itself.”
Thus, a witness’ statement may be introduced only if the
two-part foundation is first established: the witness
testifies about both the events and whether or not they are
true.14
ln this case, the Superior Court did not recognize the distinction between the
right of a defendant’s attorney to insist that the State established both foundational
11 Woodlz'n v. State, 3 A.3d 1084, 1087 (Del. 2010). See also Starlz'ng v. State, 130 A.3d 316, 228
(Del. 2015). ln this case, Flowers’ trial counsel objected to the admission of Ronetta Sudler’s out-
of-court statements on voluntariness grounds, but that objection was overruled.
12 Woodlz`n v. State, 3 A.3d 1084 (Del. 2010).
13 Id. ar1087-88.
14 Ray v. State, 587 A.2d 439, 443 (Del. 1991), quoting Keys v. State, 337 A.2d 18, 20 n.l (Del.
8
Those foundational requirements were
requirements prior to the admission of a Section 35 07 statement into evidence and
the right of a defendant’s attorney to make a professional judgment not to object if
the second foundation requirement is not established by the State,
The first situation was addressed by this Court in Blake.15 ln that case, the
State did not establish the second foundational requirement and the defendant
objected to the admission of the Section 3507 statement.16 The Superior Court
overruled the objection on the basis that establishing the second foundational
requirement was unnecessary because the statement would be admitted into evidence
no matter how the question was answered.17 We summarized the trial judge’ s ruling
in Blake’s case as follows:
After the State finished its direct examination on voir dire,
Blake argued that the State, under Ray and Acosta [v.
St‘ate],18 was required to ask Land whether her statement
was truthful. The Superior Court, recognizing that the
statement could be played for the jury Whether Land said
that her prior statements were truthful or not, ruled that the
statement could be played for the jury without such an
inquiry.19
ln Blake, although the Superior Court correctly stated that the Section 3507
statement would be admissible irrespective of the answer, this Court reversed and
15 Blake v. State, 3 A.3d 1077 (Del. 2010).
161d. at 1081.
17 Id. at 1082.
18 Acosta v. State, 417 A.2d 373 (Del. 1980).
19 Blake, 3 A.3d at 1082.
held that, upon request of the defendant’s attorney, the State must establish both
foundational requirements.2°
ln doing so, we reviewed the rationale for the second foundational inquiry:
truthfulness. We noted that, in Johnson,21 we held that the jury or trier of fact must
assess the declarant’s credibility on the witness stand “in the light of all the
circumstances presented, including any claim by the witness denying the prior
statement, or denying memory of the prior statement or operating events, or
changing his [or her] report of the facts.”22 Our decision in Moore23 explained,
“[u]nder § 3507, there is no requirement that the witness either affirm the
truthfulness of the out-of-court statement, or offer consistent trial testimony.”24
The second situation (no defense objection) was presented in Flowers’ case,
During direct examination, the State failed to ask the witnesses whether their prior
statements were truthful and therefore, failed to establish the second Section 3507
foundational requirement. Nevertheless, Flowers’ trial attorney made a professional
judgment that he would not object to its absence. Instead, he decided to challenge
the credibility of each witness by cross-examining them about their pretrial recorded
statements, which he had already carefully reviewed. The record reflects that trial
201d
21 Johnson v. State, 338 A.2d 124 (Del. 1975).
22 Blake, 3 A.3d at 1082-83 (quoting Johnson, 338 A.2d at 128).
23 Moore v. State, 655 A.2d 308, 1995 WL 67104 (Del. Feb. 17, 1995) (TABLE).
24 Id. at *2.
10
counsel filed an affidavit responding to Flowers’ claims of ineffective assistance of
counsel and explained that:
Counsel felt at the time that the other foundational
requirements for the admissibility of the statements had
been met and counsel was intent on effectively cross-
examining the witnesses. Some of the witnesses either did
not remember speaking to the police officer or, in fact,
refused to even acknowledge the statements F or example,
if the witness was asked if the statement was true, in all
likelihood the answer would have been that the witness did
not even remember making it. To cure the deficiency and
the interposing of such an objection could have potentially
undermined counsel’s credibility with the jury. Counsel
did not expect that the presiding Judge was going to keep
these statements out of evidence on that basis.25
Counsel’s explanation f`or not objecting was professionally reasonable. “When a
defendant is represented by counsel, the authority to manage the day-to-day conduct
of the defense rests with the attorney.”26 “Specifically, the defense attorney ‘has the
immediate and ultimate responsibility of deciding if and when to object, which
witnesses, if any, to call, and what defenses to develop.”’27 “Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”28
25 App. to State’s Operiing Br. at A108-09 (emphasis added).
26 Cooke v. State, 977 A.2d 803, 840 (Del. 2009).
27 Id. at 840-41 (emphasis added) (quoting Wainwright v. Sykes, 433 U.S 72, 93 (1977)).
28 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 596 (1993).
ll
The record reflects trial counsel addressed the out-of-court statements of the
witnesses in his opening statement at trial, and pointed to inconsistencies the jury
would hear both within and between certain statements On cross-examination, trial
counsel was able to obtain concessions that some of the statements contained
inaccuracies and that other information could have been inaccurate. The record
reflects that trial counsel effectively used the prior statements to attack the credibility
of all five witnesses at trial.29
Ineffective Assistance of Counsel
At the time of Flowers’ second Motion for Post-Conviction Relief, the bars to
relief in Rule 61(i)(1)-(3) did not apply “to a colorable claim that there Was a
miscarriage of justice because of a constitutional violation that undermined the
fundamental legality, reliability, integrity[,] or fairness of the proceedings leading to
the judgment of conviction.”30 A meritorious ineffective assistance of counsel claim
that demonstrates a constitutional violation may be considered an exception under
29Counsel used the inconsistencies and memory problems to cast doubt on the witnesses’
credibility and the accuracy of their prior statements For example, as Superior Court noted,
Matthew Chamblee identified Flowers as the shooter at trial: “And could you see the person
holding the gun? A. Yes.”. App. to State’s Opening Br. at A52. Using his prior statement, trial
counsel was able to have Chamblee admit that he could not really see the shooter and could not be
sure of his identification: “You specifically say I didn’t see his face. Do you remember saying
that? A. No.”. Trial counsel replayed portions of Chamblee’s statement as he cross-examined
him
3° saper. Ct. Crim. R. ei(i)(s).
12
Rule 61(i)(5). Flowers “has the burden of proof and must show that he has been
deprived of a substantial constitutional right before he is entitled to any relief.”31
To prevail on a claim of ineffective assistance of counsel, the defendant must
meet the two-prong Strz'ckland test by showing that (1) “counsel’ s representation fell
below an objective standard of reasonableness,” and (2) “the deficient performance
prejudiced the defense.”32 There is a strong presumption that trial counsel’s conduct
constitutes sound trial strategy.33 In evaluating an attorney’s performance, a
reviewing court should “eliminate the distorting effects of hindsigh ,” “reconstruct
the circumstances of counsel’s challenged conduct,” and “evaluate the conduct from
counsel’s perspective at the time.”34
Had Flowers’ trial counsel objected to the admission of the prior statements
on the basis that the State had failed to ask the witnesses whether their statements
were truthful, the trial judge would simply have directed the State to ask the question.
Under the circumstances of Flowers’ case, trial counsel’s failure to object to the
absence of a foundational question that Would not have prevented the admission of
the statements into evidence was objectively reasonable. Flowers has not
31 Younger v. State, 580 A.2d 552, 555 (Del. 1990) (citing People v. Gaines, 473 N.E.2d 868, 877
(Ill. 1984)).
32 Strz`cklana' v. Washington, 466 U.S. 668, 687-88 (1984).
33 Id. at 689.
34 Id
13
demonstrated a reasonable probability that an objection would have changed the
outcome of his trial.
In rejecting a similar claim of ineffective assistance of counsel for failure to
object when the second foundational requirement was not established by the State,
this Court stated:
Although trial counsel failed to object to the prosecutor’s
perhaps awkward attempt to comply with his obligation
under § 3507, trial counsel may well have recognized that
a technical objection was unlikely to help his client.
Hoskins argues that his trial counsel should have objected
because the prosecutor’s questions were not precise
enough, and did not focus on whether West’s prior
testimony was truthful, not just when given, but whether it
remained truthful. Had his trial counsel objected to the
prosecutor’s awkward but harmless form of questioning
on this basis, as Hoskins claims he should have done, West
would presumably have affirmed that his prior statements
were still truthful, both because he took an oath to tell the
truth before he testified at trial, and because his current
testimony was consistent with his prior testimony. Thus,
Hoskins has not shown that trial counsel’ s failure to object
constituted a Strz'ckland violation at all, and, in any event,
has not demonstrated prejudice. And absent any prejudice
to the defendant, we will not reverse as an abuse of
discretion a trial court’s decision to admit evidence based
upon the technical requirements of § 3507. ln sum, there
are insufficient grounds in the record to overcome the
presumption of trial counsel’s reasonableness35
Flowers’ trial counsel acted well within the bounds of objectively reasonable
representation in deciding not to raise a challenge to the admission of the statements
35 Hoskins v. State, 102 A.3d 724, 734-35 (Del. 2014).
14
based on a failure of the prosecutors to ask a single question where the answer did
not affect the admissibility of the witness’ prior statement or the ability of counsel
to effectively cross-examine the witnesses on both their trial testimony and their out-
of-court statement, If trial counsel for a defendant makes a reasonable decision not
to make a foundational objection to a witness statement under Section 3507, the
failure cannot then be considered a violation of the defendant’s right to
confrontation, much less when the defendant’s counsel vigorously confronted the
witness on cross-examination on all material issues covered by that statement.
Flowers failed to establish the first prong of Strickland.
Conclusion
Flowers’ claim was untimely under Rule 61(i)(1) and repetitive under Rule
61(i)(2). Flowers has not demonstrated that the Superior Court was required to
consider his claim under Rule 61(i)(5) to avoid these procedural bars to his clairn.
The judgment of the Superior Court is reversed.36
36 We note Justice Vaughn’s well-stated concurrence Because we believe this case can be decided
without addressing the important issue the concurrence discusses, which arguably requires us to
reexamine and perhaps reverse precedent, we rest our decision on grounds that involves the
straight-forward application of existing law.
15
VAUGHN, Justice, concurring:
In order to avoid the time-bar of Superior Court Rule 61(i)(1), Mr. Flowers
must proceed under Rule 61(i)(5) by showing that he has a “colorable claim that
there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.”1
ln other words, he must begin
by showing there was a constitutional violation. The Superior Court found there
was a violation of Mr. Flowers’ Sixth Amendment right to confront witnesses
against him. Specifically, the Superior Court found that Mr. Flowers’ right to
con&ont witnesses was violated because the State did not ask the witnesses on direct
examination, prior to admission of their § 35 07 statements,2 whether the prior, out-
of-court statements were true or not. ln reaching its conclusion, the Superior Court
relied upon and followed this Court’s decisions in Ray v. State3 and Blake v. State,4
In Ray this Court first established the requirement that the witness must be
asked on direct examination whether the prior, out-of- court statement is true before
the statement can be introduced under § 3507.5 Specifically, the Court said:
1 Del. Super. Ct. R 61(i)(5).
2 ii Dez. C. §3507.
3 587 A.2d 439 (Del. 1991).
4 3 A.3d 1077 (Del. 2010).
5 587 A.2d at 443.
16
Thus, a witness’ statement may be introduced only if the two-part
foundation is first established: the witness testifies about both the
events and whether or not they are true,6
The requirement that the State ask on direct examination whether the prior,
out-of-court statement is true was restated and elevated to Sixth Amendment status
in Blake, as illustrated by the following passages from that decision:
After Ray and Moore were decided, there was no reason for
confusion, because our holding in Moore Was completely consistent
with Ray, where we construed Johnson v. State as standing for the
proposition that the witness must testify about whether or not the
prior statement was true,
The Sixth Amendment requires an entirely proper foundation,
if the prior statement of a witness is to be admitted under section
3507 as independent substantive evidence against an accused. This
Court has consistently and unequivocally held “a witness’ statement
may be introduced only if the two-part foundation is first established:
the witness testifies about both the events and whether or not they
are true Accordingly, in Ray we held that “in order to conform to
the Sixth Amendment’s guarantee of an accused’s right to confront
witnesses against him, the [witness] must also be subject to cross-
examination on the content of the statement as well as its
truthfulness7
It is of course true that the witness must be subject to cross-examination on
the content of the statement as well as its truthfulness But l find nothing in the text
of § 3507 or the Sixth Amendment that requires the state to ask the witness on direct
6 Id.
7 3 A.3d at 1082-83 (emphasis in original).
17
examination, as a foundational question, whether the prior, out-of-court is true or
not.
§ 3507 provides, in pertinent part:
(a) ln 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.
(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.8
This Court first discussed the foundational requirements of § 3507 in Keys v.
State,9 decided sixteen years before Ray.1° ln Keys, the Court stated, in pertinent
part:
We conclude that, in order to use the out-of-court
statements of Wells, in the situation presented by this case,
the legislative language required the production and direct
examination of the witness Wells by the prosecution. We
do not mean to suggest any precise form of direct
examination except that it should touch both on the events
perceived and the out-of-court statement itself.11
I agree with this analysis from Keys. The state must call the witness and
conduct a direct examination which touches on the events perceived and the out-of-
8 ii Dez. C. §§ 3507(a)-(b).
9 337 A.2d is (Dei. 1975).
10 587 A.2d at 443.
11 337 A.2d at 23.
18
court statement. But the direct examination does not need to be conducted in any
precise form and there is no single question which precisely must be asked. If the
State wishes to ask the witness whether the statement is true or not, it is free to do
so. If the defense wishes to ask the witness whether the statement is true or not, it
is free to do so. As I read the statute, neither side is required to do so.
The United States Supreme Court has stated that “the Con&ontation Clause
imposes a burden on the prosecution to present its witnesses.”12 In addition, the
Clause “has long been read as securing an adequate opportunity to cross-examine
adverse witnesses”13 The Court has further stated that “when a hearsay declarant
is present at trial and subject to unrestricted cross-examination . . . the traditional
protections of the oath, cross-examination, and opportunity for the jury to observe
the witness’ demeanor satisfy the constitutional requirements” of the Confrontation
Clause.14
ln this case, the State called its witnesses, who testified under oath, and
the defendant had a full and fair opportunity to cross-examine each. ln my opinion,
the Sixth Amendment was satisfied
At oral argument, counsel for Mr. Flowers argued that the following passage
from Cah'fornia v. Green supports a requirement that the State ask the witness on
12 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
13 U.S. v. Owens, 484 U.S. 554, 557 (1988).
14 Id. at 560.
19
direct examination whether the prior, out-of-court statement is true or not:
Thus, as far as the oath is concemed, the witness must now
affirm, deny, or qualify the truth of the prior statement
under the penalty of perjury; indeed, the very fact that the
prior statement was not given under a similar circumstance
may become the witness’ explanation for its inaccuracy -
an explanation a jury may be expected to understand and
take into account in deciding which, if either, of the
statements represents the truth.15
I read this passage as simply meaning that the witness at trial, under oath, can
be confronted with the prior, out-of-court statement, Whether that confrontation
occurs during the State’s direct examination or the defendant’s cross-examination
is, I think, without Sixth Amendment significance
Since the State called its Witnesses at trial and the defense had a full,
unrestricted opportunity to cross-examine them, my conclusion is that no Sixth
Amendment violation occurred. I would reverse the judgment of the Superior Court
on the ground that Mr. Flowers has failed to show a constitutional violation for the
reasons set forth in this concurrence.
15 399 U.S. 149, 158-59 (1970).
20