Opinion
DOCKET NO. A-0595-12T1
07-11-2013
STATE IN THE INTEREST OF J.T.
Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for appellant State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano and Ms. do Oteiro, of counsel and on the brief). Alton D. Kenney argued the cause for juvenile respondent J.T. (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Kenney, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1579-12W.
Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for appellant State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano and Ms. do Oteiro, of counsel and on the brief).
Alton D. Kenney argued the cause for juvenile respondent J.T. (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Kenney, on the brief). PER CURIAM
The State appeals from an order entered by the Family Part on August 8, 2012, dismissing the complaint against the juvenile, J.T. For the reasons that follow, the appeal is dismissed.
I.
In February 2012, a complaint was issued, charging J.T. with acts that, if committed by an adult, would constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). The complaint alleged that on May 1, 2010, J.T. had performed an act of fellatio upon R.H., who was thirteen-years old at the time.
On March 13, 2012, the Family Part judge conducted a status conference in the matter, and defense counsel asked whether the judge was going to conduct a N.J.R.E. 803(c)(27) hearing prior to the trial to determine whether R.H.'s out-of-court statements were admissible under 803(c)(27). The judge stated that he usually handles the 803(c)(27) hearings "within the context of the trial unless there's some indication that [he] should do them pretrial." The judge noted that this would be a bench trial and he preferred not to hear the testimony twice. Defense counsel stated that, if the judge wanted to "do it all the same day, same day is fine."
The rule allows admission of an out-of-court statement by a victim of a sexual assault, who is under the age of twelve years, provided certain criteria are met, one of which requires that the court find, following a N.J.R.E. 104(a) hearing, that the statement is probably trustworthy.
A scheduling conference was held on May 30, 2012. The judge inquired whether there were any 803(c)(27) issues, and defense counsel responded that he had previously asked that these issues be considered "pretrial" but the judge had indicated that it was his "practice to do it the day of the trial." The judge stated, "We'll do a 104 hearing as part of [the trial]."
The parties appeared for the trial on July 31, 2012. The judge stated that he recalled they were "going to do the 803(c)(27) hearings first" and then we'll "go from there." Defense counsel stated that this was not his recollection but the assistant prosecutor said that this was "exactly" his "understanding."
The following colloquy ensued between the court and the attorneys:
THE COURT: Well normally what I do is take the testimony of the State's witnesses. If there is some other kind of motion, I conduct a 104 hearing in the same context as the trial.After a further discussion of other matters, the judge asked the attorneys whether they wanted to make opening statements. They chose to do so.
So [what] I'm saying is, I'm not saying we're going to have two different trials.
[DEFENSE COUNSEL]: No, what I'm —
THE COURT: What I thought, I thought you had requested that we focus in on the 803(c)(27) first.
[DEFENSE COUNSEL]: Well I did Your Honor. But the first witness that's being called is [R.S.]
[ASSISTANT PROSECUTOR]: He was also a 803(c)(27) [witness].
[DEFENSE COUNSEL]: We'll see if he qualifies in that regard.
. . . .
THE COURT: If [defense counsel] is ready to get started, and we're going to start the trial, I will then do my usual process of, you call your witnesses. We're going to do the 803(c)(27) in the context of the trial. I'll make the findings with regard to the 803(c)(27) issues, before the defense is required to do anything, if anything.
So, however you want to call your witnesses, . . . go ahead and I'll deal with the issues as they come up.
In his opening statement, the assistant prosecutor said that it was his "job" to prove that J.T. was guilty of the charged offenses beyond a reasonable doubt. He said he would present testimony from R.H. and his parents. He stated, however, that he would first present the 803(c)(27) witnesses: R.S. and Detective Michael Campanella.
In his opening, defense counsel noted that the discovery indicated that R.H. told R.S. that J.T. made R.H. perform an act of fellatio upon him, whereas the complaint alleged that J.T. had performed an act of fellatio upon R.H. Defense counsel was "not sure" R.H. was going to describe the act alleged in the complaint. Counsel said, "He may only describe an act of [sexual] contact, in which case we'll be entitled to a directed verdict."
The judge directed the assistant prosecutor to call his "first witness." The assistant prosecutor called R.S., who was eleven years old at the time. R.S. testified that R.H. told him that J.T. pulled R.H.'s pants down and performed oral sex upon him. On cross-examination, R.S. stated he was "confused" about when R.H. told him about the incident but said R.H. told him about it in April 2011.
Defense counsel asked R.S. about the statement he gave to a detective. The videotape of the statement was played. R.S. testified that he told the detective that R.H. said that "some kid made him suck on his penis." R.S. stated, however, that he had indicated that J.T. performed oral sex upon R.H. The following colloquy ensued:
[DEFENSE COUNSEL]: Okay. So, if you're on the video saying [R.S.] told me another boy, meaning [J.T.] made him suck on his penis, you did not mean that [R.H.] was forced to suck on [J.T.'s] penis?
[R.S.]: No.
[DEFENSE COUNSEL]: Okay. You didn't mean that?
[R.S.]: No.
[DEFENSE COUNSEL]: You didn't mean that?
[R.S.]: No.
On further questioning by the assistant prosecutor, R.S. was asked to clarify what he meant when he said that J.T. made "him suck on his penis." R.S. said that, "I meant, I meant the other way around." R.S. then stated that, J.T. "made [R.H.] pull his pants down and [J.T.] suck on his penis."
The assistant prosecutor then called Detective Campanella, who conducted a forensic interview of R.H. The videotape of the interview was played. Defense counsel cross-examined Campanella about his interview techniques, including his use of leading and suggestive questions and his verbal reinforcement of R.H.'s answers.
Cross-examination of Campanella continued on August 1, 2012. The assistant prosecutor objected to the questions on the grounds of relevance. The judge overruled the objection, stating that defense counsel was
[A]llowed to have wide discretion in cross-examination, particularly since [the court was] dealing with the 803(c) portion of the case and all of the factors that can be considered. I'm not sure whether the part of that argument is going to be overflowing
into a Michaels argument, but he's entitled to raise those questions.
State v. Michaels, 136 N.J. 299, 320-24 (1994) (establishing guidelines for determining whether investigatory interviews of children were unduly suggestive or coercive, thereby creating a substantial risk that the elicited statements and testimony are not sufficiently reliable to justify their admission at trial).
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After Campanella testified, defense counsel moved to strike a portion of the interview. The judge denied the motion, stating while he had viewed the entire videotape, he had not determined whether the tape would be entered into evidence "because that's the purpose of the 803(c)(27) hearing."
The proceedings continued on August 8, 2012, and defense counsel indicated that he did not intend to present any testimony or evidence on the 803(c)(27) issues. The attorneys then presented arguments on whether R.H.'s statements to R.S. and Campanella should be admitted.
II.
The judge placed his decision on the record. He ruled that R.S.'s videotaped statement would not be admitted because it lacked "inherent trustworthiness." The judge said that R.S.'s recollection as to when R.H. made the statement was "severely questionable." The judge noted that R.H.'s statement was not consistent with the State's theory of the case. R.H.'s statement also was not substantiated or corroborated in any way.
The judge overruled the State's objection to consideration of the Michaels issues. The State had argued that these issues should not be considered because the defense had not filed a motion to exclude the forensic interview of R.H. on this basis. The judge stated that the defense's failure to file a motion was not fatal because "things are a little different" in a juvenile proceeding. The judge then reviewed in detail Campanella's interview of R.H., and considered the relevant factors under Michaels.
The judge ruled that the first part of the forensic interview was admissible because the questioning was sufficiently non-coercive to permit its admission. The judge determined, however, that at a certain point in the interview, Campanella wanted R.H. to answer "in a certain way" and the lines established by Michaels had been crossed.
Defense counsel pointed out that, in the first part of the interview which the judge had ruled admissible, R.H. had only described sexual contact, not the charged act of fellatio. Defense counsel stated that it was "too late" for the State to amend its complaint to charge a new offense.
The assistant prosecutor again objected to the manner in which the Michaels issues had been raised. He requested "a period of time" to file a brief on the Michaels issues and to seek reconsideration of the judge's ruling. Defense counsel objected to this request because the parties were "in the middle of a trial."
Defense counsel noted that he wanted the court to consider the 803(c)(27) issues earlier but the judge indicated that "this is the way" they were "going to do it." He said he had disagreed with the procedure prescribed by the judge, but tried the matter the way the judge "set it up." He said, "This is it. Fish or cut bait." Defense counsel said that the State did not "have a crime left." He moved for a directed verdict.
The judge listened to the tape of the July 31, 2012 proceedings, and stated he was satisfied that the parties had started the trial in the case, rather than a N.J.R.E. 104 pre-trial hearing on the 803(c)(27) issues. The judge also noted that the attorneys made opening statements and testimony had been taken "that was both for the trial and for the 803(c)(27)" determination.
The judge commented that he had opted to have the 803(c)(27) issues decided in the context of the trial because he did not "want to have to listen to the testimony twice." The judge stated that, based on his review of the tape of the prior proceedings he decided to "go ahead with everything." Defense counsel asserted, "We're now in the middle of trial." The judge agreed, stating, "We're in the middle of the trial and the 104 hearings."
Defense counsel again moved for a directed verdict. The judge denied the State's motion for reconsideration of the Michaels determination, and ruled that sexual contact under N.J.S.A. 2C:14-2(b) was not a lesser included offense to the offense charged in the complaint. The judge thereupon granted J.T.'s motion for a directed verdict and dismissed the complaint. This appeal followed.
III.
The State argues that double jeopardy principles do not bar it from appealing the judge's evidentiary rulings and its dismissal of the complaint. The State contends that, while the judge indicated he was conducting a trial in which the N.J.R.E. 104 hearing would be held to determine the admissibility of the videotaped interviews of R.S. and R.H., the proceeding terminated after the N.J.R.E. 104 hearing, and J.T. was never placed in jeopardy. We do not agree.
Rule 2:3-1(b)(1) allows the State to appeal from a judgment in a criminal case provided the United States Constitution or New Jersey Constitution do not preclude it from doing so. "Under both the state and federal double jeopardy clauses, an appeal from an acquittal is impermissible if 'the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" State v. Widmaier, 157 N.J. 475, 490 (1999) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651 (1977)). Double jeopardy principles bar the State from appealing a final verdict of acquittal even if the trial court's determination rests upon an "'egregiously erroneous foundation.'" Ibid. (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962)).
The double jeopardy provisions of the state and federal constitutions protect individuals against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and, multiple punishments for the same offense. State v. Schubert, 212 N.J. 295, 304 (2012) (citing Jones v. Thomas, 391 U.S. 376, 380-81, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322, 331 (1989)). These protections apply in juvenile proceedings. Breed v. Jones, 421 U.S. 519, 528-29, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346, 355 (1975); State in the interest of L.D., 174 N.J. Super. 263, 267 (App. Div.), certif. denied, 85 N.J. 122 (1980).
The protection against double jeopardy is "implicated only when the accused has actually been placed in jeopardy." Martin Linen Supply Co., supra, 430 U.S. at 569, 97 S. Ct. at 1353, 51 L. Ed. 2d at 650; State in the interest of J.O., 242 N.J. Super. 248, 253 (App. Div.), certif. denied, 122 N.J. 385 (1990). This occurs when an accused is subject to the risk of conviction. Serfass v. United States, 420 U.S. 377, 391-92, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265, 276 (1975).
Thus, jeopardy attaches when the trial begins. United States v. Jorn, 400 U.S. 470, 480, 91 S. Ct. 547, 555, 27 L. Ed. 2d 543, 554 (1971). In a bench trial, jeopardy attaches when the first witness is sworn or the judge begins to hear evidence concerning the guilt of the accused. Serfass, supra, 420 U.S. at 388, 95 S. Ct. at 1062, 43 L. Ed. 2d at 274.
Here, the record shows that the judge commenced the trial in the matter on July 31, 2012, and indicated that he would conduct the N.J.R.E. 104 hearing during the trial to determine whether R.H.'s statements to R.S. and Campanella should be admitted under 803(c)(27) and Michaels. The assistant prosecutor did not object to the procedure. The assistant prosecutor and defense counsel made opening statements, which indicate that they understood the trial had begun.
As we stated previously, the State presented testimony from R.S. and Campanella, who were witnesses for the trial and the 803(c)(27) issues. Jeopardy attached when these witnesses were sworn. Even if jeopardy did not attach at that point because the witnesses initially testified on the 803(c)(27) and Michaels issues, it undoubtedly attached when the judge admitted Campanella's testimony as to what R.H. told him during the first part of the interview. Campanella's testimony addressed the guilt of the accused.
Furthermore, the judge's ruling on J.T.'s motion for a directed verdict indicated that he was assessing the sufficiency of the evidence. The judge concluded that the State had not presented sufficient evidence in support of the charges in the complaint. The judge's decision represents a resolution of those charges. See State v. Collette, 257 N.J. Super. 557, 562-63 (App. Div. 1992) (holding that where trial judge assessed the State's evidence against the statutory elements of the charged offenses, the resulting judgment of acquittal represented an adjudication on the merits, which could not be appealed), certif. denied, 133 N.J. 430 (1993).
In support of its contention that jeopardy did not attach here, the State relies upon State v. Barksdale, 224 N.J. Super. 404 (App. Div. 1988). In that case, the defendant was charged with possession of a controlled dangerous substance (CDS), and possession of CDS with intent to distribute. Id. at 407. A juvenile was charged with the same offenses. Ibid. Motions to suppress were granted in both cases, and the Family Part judge dismissed the juvenile delinquency complaint. Ibid. We affirmed the suppression orders, but reversed the Family Part's order of dismissal. Id. at 416-17.
We rejected the juvenile's contention that double jeopardy principles barred reinstatement of the complaint. Id. at 416. We stated, "Our careful study of the record convinces us that the dismissal was procedural only because trial on the complaint never commenced. All of the evidence taken on [the juvenile's motion to suppress] related exclusively to the suppression motion." Id. at 416-17. We therefore concluded that "double jeopardy is not implicated." Id. at 417.
The State's reliance upon Barksdale is misplaced. In that case, the Family Part conducted a hearing on the juvenile's motion to suppress and, as we indicated in the opinion, the trial in the matter "never commenced." Id. at 416. In this case, the trial commenced. The Family Part judge made clear that he was conducting a trial on the charges in the complaint and in the context of that trial, he would conduct a hearing to address the 803(c)(27) and Michaels issues.
The State also relies upon State v. Golotta, 354 N.J. Super. 477 (App. Div. 2002), rev'd on other grounds, 178 N.J. 205 (2003). There, the defendant was charged with driving while intoxicated. Id. at 480. The defendant moved to suppress the results of a breathalyzer test. Ibid. The municipal court denied the motion. Ibid. The defendant entered a conditional guilty plea and filed an appeal to the Law Division, which granted the suppression motion, vacated the guilty plea and entered a judgment of acquittal. Ibid. The State appealed. Ibid.
We rejected the defendant's contention that double jeopardy principles barred the State's appeal. Id. at 484. We stated that the State is precluded from seeking review of an acquittal only if the judge's ruling, regardless of its label, represented a resolution of some or all of the factual elements of the charged offense. Ibid. (citing Widmaier, supra, 157 N.J. at 490; Martin Linen Supply Co., supra, 430 U.S. at 571, 97 S. Ct. at 1354-55, 51 L. Ed. 2d at 651). We said that the disposition of the motion to suppress was not "a resolution of the merits of the charged offense." Ibid.
Golotta does not support the State's position in this case. In Golotta, the trial court only addressed the motion to suppress. Id. at 483-84. In this case, the judge commenced the trial, resolved an evidentiary motion in the context of that proceeding, and then addressed the merits of the State's case when it considered and granted J.T.'s motion for a directed verdict. Double jeopardy principles bar the State from appealing from the judgment of dismissal.
In view of our decision, we need not consider the State's contention that the judge erred by denying the admission of R.H.'s statements to Campanella in the second part of the forensic interview and by precluding R.H. from testifying at trial concerning the matters addressed in that part of the interview.
Appeal dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION