Opinion
DOCKET NO. A-2106-10T4
01-03-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.M.S., Defendant-Appellant.
John P. Morris argued the cause for appellant. Michael J. Forte, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-04-0280. John P. Morris argued the cause for appellant. Michael J. Forte, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant appeals from his 2010 conviction of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was sentenced to an aggregate ten-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law. The jury found defendant performed cunnilingus on his then six-year-old daughter, Z.S. (Zelda), and had her perform fellatio on him. We affirm.
We utilize pseudonyms for the children.
I.
Prior to trial, the court conducted a hearing pursuant to State v. Michaels, 136 N.J. 299 (1994), to exclude Zelda's recorded statements to a Massachusetts social services worker and a Salem County, New Jersey prosecutor's office investigator. The court also held a pre-trial Rule 104(a) hearing on the admissibility of statements by Zelda to her mother, A.D., and to her half-sister, S.F. (Suzy), as fresh complaints. The witnesses at trial included Zelda, Suzy, A.D., the investigator, and an expert on child sexual abuse accommodation syndrome (CSAAS). Defendant testified in his own defense, along with his wife.
We discern the following facts from this record.
During the school year, including 2008-2009, Zelda resided in Massachusetts with A.D., her step-father, and Suzy. Defendant lived in New Jersey, with his wife, T.S., a step-daughter, and a son. He exercised parenting time with Zelda in the summer.
During the Rule 104(a) fresh complaint hearing, A.D. testified that late one afternoon between January 6 and 9, 2009, Zelda disclosed incidents of cunnilingus by her father. A.D. explained that she was supervising shower-time for Zelda and Suzy, and briefly left the girls in the bathroom while she went to get their clothes. While outside the bathroom door, A.D. overheard Zelda mention her father's name, and then Suzy respond, "Oh, my daddy doesn't do that." A.D. then entered the bathroom and asked the girls what they were talking about. Using a slang word, Suzy explained that Zelda told her that her father had "licked" her vagina. Asked if this was true, Zelda initially denied she had said that, but Suzy insisted she had.
A.D. asked the children if one of them was lying. A.D. testified, "I told them that I want to know the truth and I know that something was wrong there[] [b]ecause one was saying one thing and the other one was saying no." She told the children she would get her belt if the children were not truthful. A.D. explained that she did not use a belt as a usual form of punishment, and that her threat was designed to convey that she was serious and to impel the children to speak.
Asked if Massachusetts police or social service reports accurately stated that she actually retrieved the belt and placed it before the children in the bathroom, A.D. asserted she did not remember doing so and denied reporting she did so. The police reports are not in the record.
Zelda said she would tell her mother the truth and A.D. escorted Zelda alone to the living room. After talking "awhile[,]" Zelda told her mother that "when she was with her dad, they laid on the couch at nighttime to watch TV. And she had [her] nightgown on. And that he pulled her underwear to the side and licked her private area." A.D. questioned Zelda for an hour or more, exploring how defendant treated the other children at home.
On January 15, 2009, a Massachusetts social services worker conducted a recorded interview of Zelda. Zelda said that her mother told her "to talk because my dad did something to me[,]" and her mother said it is "not what . . . people are supposed to do." Zelda reported, "He licked my privacy[,]" clarifying, with the use of an anatomical drawing, that she meant her vagina. Zelda stated that this happened, "[s]ometimes, more than one time[,]" the first time when she was four years old. As she had told her mother, Zelda said her father would "pull down" her underwear "a little bit[,]" while she wore a nightgown as she prepared to sleep. Zelda reported that she told a friend, K. (Kelly), as well as Suzy. She denied that she ever saw an adult's private body part, and said, "I never licked his . . . he licks mine sometimes, and that's how I know that's wrong."
A Salem County, New Jersey prosecutor's office investigator conducted a second recorded interview on March 5, 2009, in Massachusetts. Unlike in the first interview, Zelda stated her father had her perform fellatio on him. Zelda initially equivocated and made the allegation in response to leading questions. However, before interviewing Zelda, the investigator had interviewed Suzy, who stated that Zelda disclosed the fellatio to her and Kelly. Consequently, the investigator asked Zelda, "[D]o you remember ever telling your friends that you had to lick your dad, too?" Zelda then stated she told her mother, Suzy, and Kelly. The investigator asked, "And you said that you had to . . . lick your dad, too. Did you tell them that, or am I wrong?" Zelda answered, "You're right." In another line of questions, Zelda insisted, "I didn't say that I was licking his." Asked again if she licked her father, Zelda nodded affirmatively. The investigator later asked "if anything came out of his private part[,]" and Zelda answered, "One day pee[,]" and solemnly indicated that it went into her mouth and down her chin. Using anatomically correct dolls, Zelda demonstrated how she kissed her father's private area.
Asked repeatedly how frequently it occurred, Zelda answered variously, she did not know, it happened once, and it happened "more than one summer." She also said she thought his penis had hair. During the interview, Zelda was rambunctious and energetic, and sometimes inattentive, but she often appeared solemn when providing details of the assaults.
Notwithstanding the importance of the video-recording in this appeal, and the trial judge's own observation that the recording conveyed substantially more than a "cold transcript," neither party included the video in the appendix on appeal. We obtained the video and agree with the trial judge's assessment. For example, where the transcript indicates simply "inaudible response," the child can be viewed nodding in the affirmative or negative, or her mien can change noticeably. We remind counsel that they are obliged to include in the appendix "such other parts of the record . . . as are essential to the proper consideration of the issues[.]" R. 2:6-1(a)(1)(I).
A Salem County grand jury returned an indictment in April 2009. On February 5, 2010, the court heard argument on defendant's Michaels motion to exclude the two out-of-court recordings. The trial judge had viewed the recordings in camera in advance of argument. Defense counsel focused on the interview techniques the social worker and investigator used, contending they were suggestive. He was particularly critical of the investigator's manner of questioning. However, defense counsel did not argue that Zelda's statements were the product of her mother's threatening behavior after she overheard Zelda and Suzy in the bathroom.
Although the Rule 104(a) hearing on fresh complaint followed the Michaels hearing, defense counsel was evidently already aware of the threat to use the belt as a result of pre-trial disclosures.
The court found that defendant failed to demonstrate "some taint" sufficient to trigger a showing by the State that the recorded statements were reliable. See Michaels, supra, 136 N.J. at 321-22. With respect to the first interview, the court found there to be "absolutely no evidence of . . . impropriety under the Michaels standard[,]" and suggested that it was a "model . . . of how they should be conducted."
The court agreed that the second interview was somewhat more difficult to evaluate, given that (1) Zelda was much more energetic than in the first interview and (2) Zelda stated for the first time, in an interview, that her father did force her to lick his genitalia. However, in light of Zelda's somewhat "disjointed, overactive" behavior during the interview, the court found the investigator's attempts to circle back to the question of whether Zelda was forced to perform fellatio on her father to be "confirmatory" in nature, not "coercive or suggestive." Further, the court found that the investigator "had to broach" whether Zelda performed oral sex on her father, in order to explore seeming inconsistencies between her first and second interview. In addition, the court found the fact that the investigator wore a black "Police" sweatshirt and possessed her service weapon did not intimidate or coerce Zelda or her sister. The court therefore denied defendant's motion to exclude the two recordings.
On February 5, the court also entered a pretrial memo that identified as remaining evidential issues: "Crawford Issues, Tender Years testimony, Fresh Complaint, Child Sexual Abuse Accommodation, and Expert testimony on taint issue." No remaining motions were identified. A second pretrial conference was held on August 16, 2010. A new attorney appeared in place of defendant's original attorney, who apparently had health issues. Defendant's new attorney sought a hearing on whether to admit Zelda's statement to her mother and to Suzy as fresh complaint.
Although the judge initially opined that defendant was obliged to file a motion and to identify the motion in the pre-trial conference, he agreed to conduct the hearing.
At the subsequent fresh complaint hearing, A.D. testified to the events of early January in 2009, as outlined above, when she overheard her daughters conversing in the bathroom. The court agreed with defense counsel that Zelda's statement to A.D. was inadmissible as fresh complaint, because A.D.'s threat to use a belt was "very coercive."
In a separate fresh complaint hearing, Suzy testified that when she was five years old, Zelda disclosed the assaults during a playdate that also involved two other girls. Suzy asserted, "I think [Zelda] said well at midnight that her dad was licking her private and that somehow she — he made her lick back." Suzy said that Zelda asked her to keep it a secret, but she "had to tell my mom . . . ." The court held that Zelda's statement to Suzy was admissible as fresh complaint, notwithstanding the absence of details and Suzy's inability to recollect precisely when Zelda made the disclosure.
At trial, Zelda testified that her father performed cunnilingus on her, and that "more than once" she performed fellatio on him. She stated it occurred on the couch in the living room, under a blanket. Zelda stated she slept on the couch most of the time, although she had a bunk-bed in her step-sister's bedroom. She also contended that her siblings slept with her step-mother, T.S. Zelda testified that she told Suzy and A.D. about the assaults, without mentioning any disclosure to her two playmates. Cross-examination was apparently intended to demonstrate that defendant had little opportunity to engage in the assaults, based on the habits of the family members in the small, one floor house.
After Zelda testified, the State proposed to offer the recording of the second interview through the investigator. Defense counsel noted that the court had ruled on the issue of suggestiveness, but then began to argue that the court should order redacted "certain things in which it's really not a question and answer, [the investigator's] making comments in relation to things." The judge cut off counsel, stating he had ruled on the admissibility of the recording. Defense counsel then contended that he believed the recording would be introduced only if Zelda did not testify. The court responded that, under State v. Nyhammer, 197 N.J. 383, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), the recording could come in only if Zelda did testify. Defense counsel expressed his unfamiliarity with Nyhammer. After a break, the court stated, on the record, that the recorded statement was admissible under N.J.R.E. 803(c)(27), concluding, "I've already held the 104 [h]earing and determined that the statement was trustworthy." The court also held that the State provided notice to the defense that it intended to use the statement.
The State had redacted discussion of certain events that occurred in the summer before 2008, when the charged assaults occurred.
The transcript of the court's ruling begins in mid-sentence. Consequently, the record does not reflect the judge's prior comments, nor whether there was additional argument preceding his ruling.
After the investigator briefly testified, to lay a foundation for the introduction of her recorded interview of Zelda, Suzy testified the next day as a fresh complaint witness. She repeated the statement she made in the Rule 104(a) hearing. Afterwards, the judge provided a fresh complaint limiting instruction, advising the jury that it should consider the testimony only to rebut a possible negative inference from her "assumed silence." The State also called Dr. Julie N. Lippmann, who described CSAAS. The State rested. Thereafter, the court denied a defense motion for acquittal.
Defendant's wife, T.S., testified about the family's home life and usual routines, to demonstrate the implausibility of Zelda's assertions. She insisted that her house was "really small and you can see and hear everything in my home." T.S. stated that Zelda would fall asleep on the couch while watching television with the other children and that defendant would lift her into her bunk bed. She also said the couch was too narrow to accommodate defendant and Zelda in the manner that Zelda described. T.S. stated that defendant usually played video games in his bedroom during the evening. Also, contrary to Zelda's testimony, T.S. asserted that none of the children slept in her bedroom. T.S. was always the last to go to sleep and defendant always went to bed with her. T.S. also testified that defendant called A.D. in October 2008 to request a reduction in his child support payments because he was about to be laid off at the automobile assembly plant where had had worked for many years.
Defendant testified next. Like his wife, he testified to the ebb and flow of his daily routine, including when and where the children would typically sleep. His testimony was consistent with his wife's. The evident purpose of this testimony was to demonstrate to the jury that it would have been virtually impossible for defendant to assault Zelda without being noticed. Defendant denied ever engaging in any "improper sexual behavior" with his daughter.
Defendant said that the last time he spoke to Zelda was in October 2008, the same month he broached the subject of a child support reduction with A.D. Defendant testified that he filed an application with the court the following month, but that a hearing was never held. Defendant also stated that he had to resort to litigation to gain parenting time with Zelda.
The State expressed the intention to call A.D. as a rebuttal witness to address child support and visitation issues. Defense counsel objected on relevance grounds, which the court rejected, since defense counsel had raised those issues. The judge then stated, "I'm going to limit it to that. I'm not going . . . into other areas. . . . And, in particular, just so we're clear, certainly none of the areas that we dealt with in the 104 Hearing. Okay?" Defense responded, "Right." A.D. then testified regarding child support and the frequency of defendant's interactions with Zelda, outside of their scheduled summer visitation.
The trial judge then conducted a brief charge conference. The court outlined the charges he intended to utilize, along with revisions he proposed to make in the charge on expert witnesses. He then asked counsel if there was "[a]nything missing that either of you want?" Both counsel responded, "No."
In summation, defense counsel highlighted inconsistencies in the statements of Suzy and Zelda, the lack of plausible details in Zelda's assertions, and the absence of opportunity for the assaults to take place, based on T.S.'s and defendant's testimony. He contended that the investigator suggested answers in her interview of Zelda. He also insinuated that the child support dispute was connected to Zelda's allegations.
The prosecutor characterized the trial as a credibility contest and asserted the girls were credible. He argued that defendant's and T.S.'s claims that defendant was never alone with Zelda were implausible. He also noted that defendant did not present a photograph of the couch, though he presented other family photographs. He also ridiculed the insinuation that A.D. planted the idea of the assaults as retaliation for a potential child support reduction. The prosecutor invited the jury to review the video if they had any lingering doubts, stating, "I'm not afraid of it." Defense counsel objected on the ground that the prosecutor's statement constituted an impermissible personal opinion. The judge overruled the objection.
The judge instructed the jury in accord with his previous outline. At the end of the charge, the judge explained to the jury that it would not have the DVD containing the recorded statement in the jury room, "[s]o in the event that you're deliberating and you want to see all or part of it again, if you'll let us know, we'll set that up for you. Okay?"
The jury then retired to deliberate. Shortly after beginning deliberations, the jury requested a playback of Zelda's testimony and her DVD statement. They watched Zelda's testimony that afternoon in the courtroom and her prior recorded statement the following morning, after which they retired to continue deliberations.
As the trial was conducted in a "video-courtroom," all testimony was video-recorded.
On the afternoon of the second day of deliberations, the jury sent out a note stating they were at an impasse. The judge advised counsel that he was inclined to administer the further deliberations charge. Neither attorney objected. Thereafter, the judge instructed the jury: "Candidly, you have not been deliberating for a very long period of time and at this juncture, I am going to further instruct you regarding further deliberations." The judge proceeded to deliver the model charge. He then added,
Madam Foreperson, I'd be happy to either provide further instructions if there are specifics that the jury wants; or replay any evidence if that's what the jury wishes. If there is anything else you think I could do to help, if you'd send me out a note, I will do my best to do that.
But at this juncture, I am going to ask . . . the jury to return and to continue with its deliberations with the hope of . . . reaching a verdict.
Thereafter, the jury requested a replay of defendant's testimony, which the court accommodated at the end of the afternoon. The jury resumed deliberations the next day and reached a verdict before the lunch hour, finding defendant guilty of all counts.
Defendant moved for a new trial contending: (1) the verdict went against the weight of the evidence, (2) Zelda's recorded statement should have been deemed tainted and therefore excluded, (3) the state improperly shifted the burden of proof to the defense "by making reference to the fact that [it] failed to produce some type of picture[] [of the couch] when [it] had no obligation to do anything[,]" and (4) the state improperly "challeng[ed] the jury as far as going into a videotape a number of times."
Defendant framed this allegation of error as a "denial" of the Michaels hearing, rather than seeking reconsideration of the judge's evidentiary ruling at that hearing.
The court found "no support . . . in the record" for defendant's contention that the verdict went against the weight of the evidence. The judge also found "nothing improper about the [p]rosecutor's comments regarding the jury's right to review testimony . . . . particularly since [he] told them the same thing . . . in [his] charge." Further, the judge found the testimony regarding the photo to be appropriate, given the "extensive testimony by [defendant] and his wife with regards to th[e] couch, as well as the victim." Finally, with respect to defense counsel's argument that the court failed to hold a Rule 104 hearing, the judge was "at a loss[.]" The court framed defendant's argument as follows:
At trial he asked for a 104 [h]earing with regard to the victim's statement. And the argument, as I understand it, is that the Michaels [h]earing is not the same as a 104 [h]earing to determine whether the child victim's statement to the officer should have come in.
They are the same hearing. They were the same hearing here.
I believe I made a specific ruling that the statement of the victim to Investigator Martin was admissible pursuant to Rule of Evidence 803(c)27 in my findings.
My understanding of the Michaels [h]earing, the purpose of it is to establish that the statement made to the investigator is tainted and therefore is not credible.
I found the statement was credible and also that the State had met the requirements of the Rule, and therefore the statement was admissible so long as the victim testified.
. . . .
So this isn't an argument that the Court failed to conduct a 104 [h]earing of a different witness. I just find no merit in the argument with regards to the 104 hearing.
The court also rejected defendant's argument that "somehow if [the judge] had reheard argument on the victim's statement, [he] might have ruled that a different statement would have come in as opposed to the statement that came in."
This appeal followed. Defendant raises the following issues for our consideration:
Although defendant filed a timely appeal, the court ultimately dismissed it in June 2012 after defendant failed to file a timely brief. Upon defendant's motion almost three years later, the court reinstated the appeal.
POINT I
THE SECOND INTERVIEW OF Z.S. WAS IMPROPERLY ADMITTED AS A "TENDER YEARS" STATEMENT WITH NO EXPLANATORY INSTRUCTION AT TRIAL. THE JUDGE NEVER CONDUCTED A N.J.R.E. 104 HEARING ON THE ADMISSIBILITY OF EITHER OF THE TWO INTERVIEWS OF Z.S. CLAIMED TO BE "TENDER YEARS" STATEMENTS. NO TRANSCRIPT OF EITHER INTERVIEW OF Z.S. WAS PREPARED FOR USE IN THE PRETRIAL OR TRIAL PROCEEDINGS. THERE WAS NO NOTICE TO THE DEFENSE THAT ONLY THE SECOND INTERVIEW WOULD BE PROFFERED BY THE STATE. [ONLY N.J.R.E. 104 HEARING FAILURE ASPECT RAISED BELOW].
POINT II
THE REPLAY OF THE "TENDER YEARS" HEARSAY INTERVIEW OF Z.S. DURING DELIBERATIONS WAS IN VIOLATION OF THE PRECAUTIONARY PROCEDURE OUTLINED IN STATE VS. BURR, 195 N.J. 119 (2008). THAT ERROR WAS COMPOUNDED BECAUSE THIS JURY NEVER SAW AND HEARD THE CONTRADICTING FIRST INTERVIEW BY THE MASSACHUSETTS SOCIAL WORKER. ALSO, NO LIMITING INSTRUCTION WAS PROVIDED TO THIS JURY AS TO ITS CONSIDERATION OF THE REPLAY IN THEIR LATER DELIBERATIONS. THOSE PLAIN
ERRORS PREJUDICED THIS DEFENDANT. [NOT RAISED BELOW].
POINT III
THE PROFFERED FRESH COMPLAINT TESTIMONY OF THE MOTHER WAS PROPERLY EXCLUDED. HOWEVER, THE DEFENSE WAS PRECLUDED FROM INTRODUCING THE MOTHER'S THREATS TO ALLOW THIS JURY TO CONSIDER THOSE "STATEMENTS" OF Z.S. IN CONTEXT AND TO EXPLAIN, IF NOT PROPERLY EXCLUDED UNDER N.J.R.E. 403, THE FRENETIC ACTIVITY OF Z.S. EXHIBITED IN THE DVD PLAYING OF THE SECOND INTERVIEW. THE BELATED INTRODUCTION BY THE STATE [AND ACCEPTANCE BY THE COURT] OF THE 5 YEAR OLD HALF-SISTER (S.F.) AS A "FRESH COMPLAINT" WITNESS WAS PREJUDICIAL ERROR AS, INTER ALIA, THE ALLEGED DISCLOSURE OF Z.S. WAS NOT A "COMPLAINT" TO A CONFIDANTE BUT RATHER CAME ABOUT IN A "PLAYTIME" DISCUSSION AMONG FOUR YOUNG GIRLS [S.F. BEING ONE] AND THIS DECEMBER "COMPLAINT" WAS NOT ESTABLISHED AS BEING MADE WITHIN A "REASONABLE TIME" AFTER THE ALLEGED JUNE-SEPTEMBER SEXUAL ASSAULTS OF Z.S. [NOT RAISED BELOW].
POINT IV
THE JURY'S NOTE [C-7] REPORTED ITS INABILITY TO REACH A VERDICT. THE JUDGE'S COMMENTS ALONG WITH HIS IMMEDIATE REACTION TO THEN SEND THIS JURY BACK INTO DELIBERATIONS TO ALLOW HIM TO RETURN TO HIS OTHER TRIAL IGNORED THE CAUTIONARY COURSE REQUIRED BY STATE VS. FIGUEROA, 190 N.J. 219 (2007) AND CONFIRMED BY STATE V. ADIM, 410 N.J. SUPER. 410 (APP. DIV. 2009). ADDITIONALLY, THIS JUDGE'S MISTAKEN IMPRESSION OF THE TIME SPENT DELIBERATING AND HIS REBUKE TO THIS JURY ALONG WITH HIS "HELPFUL" SUGGESTIONS IMPELLED THIS JURY'S LATER REQUEST TO VIEW THE DEFENDANT'S TESTIMONY. THAT JURY REQUEST ALSO WAS NOT ANALYZED NOR WAS THIS JURY CAUTIONED AS TO ITS CONSIDERATION IN THEIR DELIBERATIONS OF THAT REPLAY ALONG
WITH THE EARLIER REPLAY OF THE Z.S. STATEMENTS. [NOT RAISED BELOW].
POINT V
THE FAILURE TO COMPLETE A CHARGE CONFERENCE ON THE RECORD, AS REQUIRED BY R. 1:8-7(b), PREJUDICED THIS DEFENDANT'S RIGHT TO A FAIR TRIAL. THE JUDGE'S INSTRUCTIONS AS TO THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME [CSAAS] INCORRECTLY SUMMARIZED THE TESTIMONY OF DR. LIPPMANN AND WERE IN VIOLATION OF THE ANALYSIS AND MODEL JURY INSTRUCTION EXCISION OF STATE VS. W.B., 205 N.J. 588 (2011). THE GENERIC UTILIZATION OF THESE CSAAS INSTRUCTIONS AND THE FRESH COMPLAINT INSTRUCTIONS PREJUDICED THIS DEFENDANT BY FAILING TO DELINEATE AND DIFFERENTIATE AN APPROPRIATE CONSIDERATION OF THOSE POTENTIALLY CONTRADICTORY INSTRUCTIONS IN LIGHT OF THE EVIDENCE OF DISCLOSURE INTRODUCED AT TRIAL. [NOT RAISED BELOW].
POINT VI
LEAVE OF COURT WAS NOT GRANTED TO AUTHORIZE SUBSTITUTION OF COUNSEL FOR THIS DEFENDANT. ADDITIONALLY, R. 1:11-2(a)(2) WAS VIOLATED AS THE SUBSTITUTION OF DEFENSE COUNSEL WITHOUT LEAVE OF COURT WAS INVALID SINCE THERE WAS: MOST IMPORTANTLY, NO SIGNED WRITTEN CONSENT BY THE DEFENDANT TO THE PROPOSED SUBSTITUTION AS WELL AS NO SIGNED SUBSTITUTION BY THE DEFENSE ATTORNEYS; NO WRITTEN WAIVER BY THE COUNTY PROSECUTOR; NOR CERTIFICATION FROM BOTH DEFENSE COUNSEL THAT THERE WOULD NOT BE ANY DELAY. THAT IMPROPER SUBSTITUTION WITHOUT THIS DEFENDANT'S CONSENT, ALONG WITH THE CUMULATIVE EFFECT OF THE OTHER TRIAL ERRORS BY SUBSTITUTED COUNSEL, DEPRIVED THIS DEFENDANT OF A FAIR TRIAL. [NOT RAISED BELOW].
II.
A.
Defendant's most substantial argument pertains to the admission into evidence, pursuant to N.J.R.E. 803(c)(27), of Zelda's recorded statement to the investigator. Defendant contends the court failed to conduct a Rule 104(a) hearing and to make specific findings pursuant to the Evidence Rule. In particular, defendant argues that the court conflated the requirements of N.J.R.E. 803(c)(27) with the standards under Michaels.
We agree that the court failed to distinguish the standards and principles applicable to a motion to exclude statements and testimony under Michaels, from the prerequisites to admissibility of a child's out-of-court statement under N.J.R.E. 803(c)(27). Nonetheless, we conclude that the court's error does not warrant reversal because it was not "clearly capable of producing an unjust result." State v. Maltese, 222 N.J. 525, 543 (2015) (quoting R. 2:10-2), cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016). "The possibility of an unjust result must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Stubbs, 433 N.J. Super. 273, 287 (App. Div. 2013) (internal quotation marks and citations omitted), certif. denied, 224 N.J. 527 (2016).
1.
We begin with a review of Michaels and N.J.R.E. 803(c)(27). The Court in Michaels established the standard and procedure for determining whether a trial court should exclude an alleged child victim's out-of-court statement and in-court testimony due to the suggestiveness of "pretrial events" and "the investigatory interviews and interrogations." 136 N.J. at 320. The defendant bears the initial burden to trigger a "Michaels hearing" by showing "'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." Ibid. (citation omitted). The proffered evidence must be sufficient "to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing." Id. at 321.
Only after the defendant "establishes that sufficient evidence of unreliability exists" does the burden shift to the State to prove reliability by clear and convincing evidence. Ibid. The issue then becomes whether, "despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques." Ibid.
The alleged child victims in Michaels faced an array of coercive or suggestive practices, including: "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions[.]" Ibid. The Court recognized that where a child's statements or testimony retain sufficient reliability, it is left to the jury to consider the impact of the interviewing techniques on the child-witness's credibility. See id. at 323. The Michaels Court affirmed the principle that, generally, a child victim is "presumed no more or less reliable than any other class of witnesses[.]" Id. at 320.
The test for determining whether a child's out-of-court statement is admissible under N.J.R.E. 803(c)(27) overlaps with the test for determining reliability of a child's out-of-court statement and in-court testimony under Michaels. N.J.R.E. 803(c)(27) provides that "[a] statement by a child under the age of [twelve] relating to sexual misconduct . . . is admissible in a criminal . . . proceeding" so long as (1) opposing counsel is given notice that the statement will be used, (2) the court holds a Rule 104(a) hearing to determine, "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[,]" and (3) the defendant's constitutional right to confrontation is assured. N.J.R.E. 803(c)(27); see also State v. D.G. 157 N.J. 112, 128 (1999). Five nonexclusive factors may be considered in assessing trustworthiness under N.J.R.E. 803(c)(27): "(1) the circumstances under which the same statement was made to [the parent]; (2) its spontaneity; (3) the mental state of the declarant; (4) the terminology attributed to the declarant; and (5) the declarant's lack of motive to fabricate." State v. Delgado, 327 N.J. Super. 137, 147 (App. Div. 2000) (internal quotation marks and citation omitted). A trial judge must also consider "the totality of the circumstances" in which the statement was made. See State v. P.S., 202 N.J. 232, 249 (2010) (internal quotation marks and citation omitted).
A trial court's analysis under N.J.R.E. 803(c)(27) may be informed by Michaels principles and the related social science regarding the suggestibility of child victims. For example, in P.S., the Court applied Michaels principles in declining to require a tape recording as a pre-condition to admissibility under N.J.R.E. 803(c)(27). See id. at 253-54. Similarly, in D.G., supra, 157 N.J. at 130-34, the Court applied Michaels principles in determining that a videotaped statement was not sufficiently reliable to be admitted under N.J.R.E. 803(c)(27).
Given the overlap, trial courts may certainly consider a Michaels motion and the State's offer to introduce a statement under N.J.R.E. 803(c)(27) in a single proceeding, so long as the respective burdens are clearly assigned.
However, unlike under Michaels, where the defendant bears the burden to make an initial showing of taint, the State, as the proponent of the hearsay statement under N.J.R.E. 803(c)(27), bears the burden to establish the prerequisites of admissibility. See State v. Miller, 170 N.J. 417, 426 (2002) (discussing "the burden on the proponent of the hearsay evidence"); see also State v. James, 346 N.J. Super. 441, 457 (App. Div.) (stating that the proponent of hearsay must establish prerequisites of admissibility), certif. denied, 174 N.J. 193 (2002). The standards of proof also differ. Under Michaels, if a defendant makes a threshold showing of suggestiveness or coercion, then the State must prove reliability by clear and convincing evidence. Michaels, supra, 136 N.J. at 321. However, the proponent of hearsay must satisfy the prerequisites of admissibility by a preponderance of the evidence. See James, supra, 346 N.J. Super. at 457.
We do not perceive it to be a defendant's burden to move in advance of trial to exclude a "tender years" statement offered under N.J.R.E. 803(c)(27). Rather, it is the proponent's burden to satisfy the prerequisites, including providing notice, see N.J.R.E. 803(c)(27)(a), and establishing, in a Rule 104(a) hearing, that the statement is trustworthy. See N.J.R.E. 803(c)(27)(b). Even if the State establishes the statements' admissibility in advance of trial, pursuant to Rule 3:9-1(e) (stating the hearings to resolve admissibility of sound recordings shall be held before the pretrial conference), the trial court must be prepared to revisit its finding in light of the trial evidence. See State v. Jones, 308 N.J. Super. 15, 46 (App. Div. 1998) (stating, with respect to in limine rulings, "the trial court must be sensitive to the need to revisit its pre-trial rulings in light of the developing record at trial.").
If the State fails to satisfy the prerequisites for admissibility yet offers the statement, the defendant may object. See D.G., supra, 157 N.J. at 128 (stating that "without a pretrial hearing on notice to defendant the testimony [about the out-of-court statement] should not have been admitted."). Yet, if the defendant fails to object, the hearsay is evidential. See State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring) (stating that hearsay subject to a well-founded objection is generally evidential if no objection is made). The admission of unobjected-to-hearsay in a criminal trial is subject to a plain error analysis. See State v. Frisby, 174 N.J. 583, 591 (2002). In that regard, a defendant's ability to confront the out-of-court declarant at trial may be "relevant on whether the admission of evidence under the tender years exception constituted harmless error[.]" D.G., supra, 157 N.J. at 130.
2.
Applying the foregoing principles, we agree that the State failed to satisfy the prerequisites for admission of Zelda's video-recorded out-of-court statement to the investigators, under N.J.R.E. 803(c)(27). At the Michaels hearing, defense counsel relied solely on what he contended were the suggestive or coercive interrogation techniques of the interrogators, particularly the prosecutor's office investigator. On that sole basis, defense counsel argued he satisfied the threshold showing under Michaels. The court disagreed, and defendant does not contest that decision on appeal.
As we noted, defendant did not contend or offer evidence that A.D.'s threat to get her belt and her extended interrogation of Zelda constituted "some evidence" that Zelda's recorded statements, made a week and several weeks later, "were the product of suggestive or coercive interview techniques." Michaels, supra, 136 N.J. at 320. Even after the fresh complaint hearing, in which details of A.D.'s threat were disclosed, defense counsel did not ask the court to revisit its initial Michaels ruling.
However, in advance of admitting the recorded statements into evidence pursuant to N.J.R.E. 803(c)(27), the State was obliged to demonstrate that it gave notice of its intent to use the statement and to address, in a Rule 104(a) hearing, the broader issues of the "content and circumstances" of Zelda's statement. We agree the state gave notice. But, the oral argument based solely on the video-recordings did not suffice as the requisite Rule 104(a) hearing.
We recognize that the "notice requirement is a critical element of N.J.R.E. 803[sic](27)(c) and courts should be very reluctant to admit evidence under the tender years exception unless proper and timely notice has been given." D.G., supra, 157 N.J. at 129. Yet, we reject defendant's argument that the State failed to provide notice of its intention to use the statement. Although a formal written statement would have been preferable, it is evident from the Michaels hearing, and the subsequent pretrial conference, that the State intended to offer one or both of the recorded statements.
Yet, defendant did not object to admission of the recorded statement on that ground. As best we can understand, defense counsel restricted his objection to embedded hearsay in the investigator's interview of Zelda, and to comments the investigator made about her own responsibilities. The court overruled the objection and recited, in conclusory terms drawn from the Evidence Rule, that the statement was trustworthy. The objection to the embedded hearsay was well-founded, as it related to instances in which the investigator quoted Suzy and A.D. Also, except where needed for context, the officer's statements about her own responsibilities were not relevant. Nonetheless, we are persuaded that none of those statements were capable of producing an unjust result. "A defendant is entitled to a fair trial, but not a perfect one." State v. Feaster, 156 N.J. 1, 84 (1998) (internal quotation marks and citations omitted), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
For example, she said, "I came here from New Jersey, 'cause I need to talk to you about what happened with your dad to make sure you stay safe[.]"
On appeal, defendant broadens his challenge to the court's admission into evidence of the recorded statement, and contends the court was obliged to conduct a Rule 104(a) hearing and to set forth more detailed findings of trustworthiness. Subjected to a plain error analysis, we find an insufficient basis to reverse. Based on the record before us, we are unprepared to find that Zelda's out-of-court statement to the investigator was not trustworthy, or that its admission into evidence was capable of producing an unjust result.
Defendant places undue emphasis on the investigator's periodic resort to leading questions. Although such questions are certainly capable of being suggestive, they are not unacceptable per se. See State v. Smith, 158 N.J. 376, 390 (1999). "Indeed, the use of leading questions to facilitate an examination of child witnesses who are hesitant, evasive or reluctant is not improper." Ibid.
Furthermore, Zelda testified at trial and was subjected to cross-examination. Although the recorded statement was corroborative, it also highlighted Zelda's equivocation that was not present in her trial testimony. The State offered only one such statement. Cf. D.G., supra, 157 N.J. at 128 (noting that a trial court should consider the prejudicial impact of "repetitive corroborative statements under the tender years exception").
The defense chose not to confront Zelda with her own prior inconsistent statements, such as her emphatic denial of fellatio to the social service worker. The defense also chose not to confront Zelda with the fact that she only disclosed the assault to her mother after she was threatened with her belt. --------
B.
We briefly address defendant's remaining points worthy of comment. Defendant contends he was prejudiced by the State's failure to introduce Zelda's recorded interview with the social services worker in which she denied performing fellatio. However, we perceive no violation of N.J.R.E. 803(c)(27). The rule requires the State to provide notice before it uses a tender years statement; nothing in the rule requires the State to provide notice when it does not. Defendant was free to introduce Zelda's initial recorded statement as a prior inconsistent statement. Defendant chose not to do so.
We also reject defendant's contention that the court violated the procedures set forth in State v. Burr, 195 N.J. 119 (2008), in permitting the replay of the video-recording of the out-of-court statement, and the video-recorded testimony of Zelda and defendant. All playbacks were conducted in open court. See State v. Miller, 205 N.J. 109, 123 (2011) (citing Burr, supra, 195 N.J. at 135). Burr was concerned with the undue weight a jury might place on recordings, as contrasted with read-backs of stenographically recorded testimony. Burr, supra, 195 N.J. at 132-35; see also Miller, supra, 205 N.J. at 123-25. That danger was not presented here, inasmuch as the out-of-court statement and the trial testimony were both recorded. See Miller, supra, 205 N.J. at 125 (finding no error where "the recorded testimony replayed for the jury was of the same type as all other trial testimony").
Nor did the judge induce the jury to review the video-recordings. He appropriately informed the jury, in his final instructions, that it would not have the recordings in the deliberation room, but could view them in court if they wished. After giving the further deliberations charge, he helpfully mentioned that the court was available to respond to questions, or to accommodate requests to review evidence or testimony.
We also find no merit to defendant's argument that Zelda's statement to Suzy did not constitute a "fresh complaint." See R. 2:11-3(e)(2). Nor did the court bar defense counsel from questioning A.D. about her threat to use the belt. The clear import of the judge's comments, in advance of the State's announcement to call A.D. as a rebuttal witness, was that the State would be limited to an exploration of the issues of child support and visitation that were raised in the defense case. The court would not permit the State to elicit fresh complaint testimony that the defense had succeeded in suppressing. See State v. Cook, 330 N.J. Super. 395, 418-19 (App. Div.) (stating that rebuttal evidence is appropriate to address new subject raised on examination of defense witnesses), certif. denied, 165 N.J. 486 (2000). Defense counsel made no effort during the trial to explore A.D.'s threats.
Finally, the trial court did not err in its further deliberations instruction. A trial court has discretion to order a jury to continue deliberating after it has announced a deadlock. State v. Czachor, 82 N.J. 392, 407 (1980). The judge delivered the model charge. His added observation that the jury had not been deliberating very long was an accurate observation, it was not coercive, and did not constitute error.
Defendant's remaining arguments, to the extent not addressed, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION