Opinion
DOCKET NO. A-3248-13T1
05-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.D.D., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-06-0673. Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant L.D.D. appeals from an August 2, 2013 conviction, following a five-day jury trial, for second-degree sexual assault, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). L.D.D. was found guilty of assaulting a child who was placed in his care because her parent had abused an older sibling. Defendant was sentenced to an aggregate term of seven years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-1 to -23, and parole supervision for life, N.J.S.A. 2C:43-6.4.
The statutory scheme known as "Megan's Law," requires "prescribed categories of sex offenders register with law enforcement agencies through a central registry maintained by the Superintendent of State Police. N.J.S.A. 2C:7-2(a)(1), 4(d)." In re Registrant N.B., 222 N.J. 87, 89 (2015).
On appeal, defendant principally challenges the scope of "fresh complaint" evidence admitted at trial over his objection, and also argues the video replay of the victims' statements failed to comply with State v. Burr, 195 N.J. 119 (2008). Further, defendant asserts his sentence was excessive because the term imposed was unsupported. More specifically, defendant maintains:
POINT I
THE TRIAL JUDGE IMPROPERLY PERMITTED THE FRESH COMPLAINT WITNESSES TO TESTIFY AS TO THE DETAILS OF THE ALLEGED ABUSE, FAILED TO PROVIDE THE JURY WITH AN ADEQUATE FRESH COMPLAINT INSTRUCTION, PROVIDED THE JURY WITH AN UNNECESSARY AND MISLEADING INSTRUCTION ON THE "TENDER YEARS" HEARSAY EXCEPTION, AND PERMITTED THE STATE TO IMPROPERLY BOLSTER [THE VICTIM'S] CREDIBILITY BY ALLOWING IT TO PRESENT NEEDLESSLY CUMULATIVE EVIDENCE [OF] [THE VICTIM'S] ALLEGATIONS AGAINST [DEFENDANT]. THE COMBINATION OF THESE ERRORS DEPRIVED
[DEFENDANT] OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).
A. The Judge Failed to Limit the Fresh Complaint Testimony to General Information that [the Victim] Told Someone about [Defendant's] Conduct within a Reasonable Amount of Time, and Failed to Provide the Jury with an Adequate Fresh Complaint Charge.
B. The Judge Improperly Provided the Jury with a Jury Charge on Tender Years Testimony that was Likely to have Misled the Jury Regarding the Limited Purpose of Fresh Complaint Testimony.
C. The Judge Permitted the State to Introduce two Hearsay Statements Under the Tender Years Exception, Two Hearsay Statements Under the Fresh Complaint Doctrine, and Testimony of the Three Witnesses who took those Statements, Resulting in Cumulative Evidence that Improperly Bolstered [the Victim's] Testimony.
POINT II
THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE JUDGE IMPROPERLY APPLIED CERTAIN AGGRAVATING FACTORS AND FAILED TO FIND APPLICABLE MITIGATING FACTORS AND INSUFFICIENTLY WEIGHED CERTAIN MITIGATING FACTORS.
Following our review, we conclude the judge erred in instructing the jury regarding the use of "fresh complaint" evidence relating the victim's disclosure of the sexual abuse. The error was the type that would mislead the jury's evaluation of the evidence and lead to an unjust result. Accordingly, defendant's conviction must be vacated and the matter remanded for a new trial. State v. W.B., 205 N.J. 588, 614 n.12 (2011) ("No matter how a test may be stated, the question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." (quoting State v. Macon, 57 N.J. 325, 335 (1971))).
These facts were presented during the five-day trial. The State presented testimony from the lead investigating detective, a New York foster care agency worker and medical assistant, the victim, and an expert child abuse pediatrician. Defendant presented testimony from a resource worker for the Division of Youth and Family Services (the Division), his wife, and he testified on his own behalf. The State offered rebuttal from two investigators employed by the New Jersey Institutional Abuse Investigation Unit, who interviewed the children and defendant.
On June 29, 2012 legislation reorganized the Department of Children and Families and included renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, 320 (amending N.J.S.A. 9:3A-10(b)).
In 2009, a seven-year-old (the victim) and her younger sister and older brother were removed from their parent's care in New York following confirmed abuse of their older sibling. The three were placed in the New Jersey home of defendant, a relative, in September 2009. In addition to defendant, the children's two older male cousins lived in the home. The cousins slept in the basement, defendant slept on the first floor, and the three children slept on the second floor: the girls shared one bedroom and their brother slept in the other. In March 2011, defendant's soon to be wife and her son also moved into the home.
In February 2011, the assigned Division resource worker conducted a home visit when informed defendant was implementing corporal punishment to discipline the children. Defendant denied the allegations. The same resource worker had conducted approximately ten home visits since the children's placement and found no concerns. Defendant told the worker he desired to discontinue as a foster parent and return the children to the Division's care. Interviewing the two girls during the visit, the resource worker recorded they were tearful, complained people in the home were mean, and stated they wanted to go live with their babysitter. The younger girl reported defendant "grabbed [her] ponytails and pushed her head into the door." The victim reported in the past defendant struck her in the face while wearing a ring and threatened her with a belt, shoes, a broom and a stick. Both girls believed defendant would strike them if he learned of their disclosures and both girls stated they did not know who they could trust.
On March 4, 2011, defendant returned the three children to the New York foster agency that had placed them in defendant's care. On March 21, 2011, the victim disclosed to her New York foster agency caseworker defendant had "inappropriately touched" her on many occasions. The victim made similar disclosures to a medical assistant working for the agency. In the ensuing investigation, a video-taped interview of the victim was conducted on April 1, 2011, by Detective Vito Colacitti of the Union County Prosecutor's office. Detective Colacitti took a second statement, which was transcribed.
At trial, the victim, who was then ten years old, disclosed she was sexually assaulted by defendant beginning shortly after her move to his home, which continued until his wife commenced living in the residence. The victim described defendant's conduct in this way. On nights when the victim would use the bathroom, which was located on the first floor, defendant would bring her into his bedroom. While everyone in the house was asleep, he placed her on a white towel on his bed, removed her clothing, removed his clothing and he laid on his side behind her as she watched cartoons on television. Defendant touched the victim's "private areas" both in "front and . . . back." She felt defendant "put his private part in [her] behind" and touched her "front" with his hand. Defendant's fingers were "inside of the [labia minora]" of her vagina; however, his fingers did not "go inside the opening" and no penetration occurred. The victim described "white stuff" ejaculating from defendant's penis, which "makes you have a baby." Finally, she stated when the "white stuff" would go on the white towel, "he would end it," and the victim returned to her own bedroom.
Other encounters between the victim and defendant "happened in a pool" in defendant's backyard. The victim described defendant touched her "front private part" while reaching "under [her] bathing suit" with his hand. The victim stated defendant would engage in this conduct "[e]very time [they] went into the pool." The victim acknowledged other family members were nearby, but was unsure whether anyone observed the events.
In response to cross-examination, the victim stated these encounters were not painful and, when they occurred, she did not recognize they were inappropriate. The victim stated she did not disclose the abuse because she "was scared" of defendant being mad at her and heard her "cousins listening" when she spoke to her Division caseworkers. The victim also asserted she made her disclosure on March 21, 2011, as she "could trust" the case worker because she was no longer in defendant's home. The victim acknowledged she told her mother at that time and made similar statements to the New York agency's medical assistant.
Defendant denied the allegations of sexual abuse and testified he never abused any of the children. He also testified he was impotent.
Defendant objected to various aspects of the State's factual and expert testimony. Following the jury charge, the judge inquired whether counsel had any objections or requests for amendments to the jury charge. Defense counsel requested the judge elaborate on the verdict sheet; otherwise, defense counsel had "no other objections to the [c]ourt's charge."
During deliberations, the jury requested a replay of the victim's April 1, 2011 interview with Colacitti. Following the replay, the court instructed the jury "to consider all the evidence presented and not give undue weight to the testimony and playback that you have just heard and seen."
The jury acquitted the defendant on the charge of first-degree aggravated assault and convicted him of second-degree sexual assault and endangering. Defendant's appeal ensued.
Seeking a new trial, defendant does not challenge the admission of testimony by New York foster agency employees who received the victim's initial disclosure, but rather argues the scope of the fresh complaint evidence was not properly limited, and admitted over defendant's objection. Also, defendant argues the judge failed to issue a contemporaneous limiting instruction explaining the use of the fresh complaint evidence and jury instruction on fresh complaint was erroneous.
The New Jersey Supreme Court has recently reviewed the fresh-complaint doctrine, stating:
That doctrine allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated. See State v. Hill, 121 N.J. 150, 163 (1990); State v. Balles, 47 N.J. 331, 338 (1966), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support. [W .B., supra, 205 N.J. at 616]; Hill, supra, 121 N.J. at 163 (citing State v. Tirone, 64 N.J. 222, 226-27 (1974)); Balles, supra, 47 N.J. at 338-39. These requirements are relaxed when they are applied to juvenile victims. State v. Bethune, 121 N.J. 137, 143-44 (1990). This Court has recognized that children may be "too frightened and embarrassed to talk about" the sexual abuse they have encountered, and therefore, juvenile victims are given additional time to complain, and their complaint may be elicited through non-coercive questioning. Ibid.The Court cautioned on the scope of fresh complaint testimony, instructing: "Only the facts that are minimally necessary to identify the subject matter of the complaint should be admitted; the fresh complaint testimony is not to be used 'to corroborate the victim's allegations concerning the crime.'" Id. at 456 (quoting Bethune, supra, 121 N.J. at 146); see also W.B., supra, 205 N.J. at 617 ("A witness may testify only to the general nature of the complaint, and unnecessary details of what happened should not be repeated.").
[State v. R.K., 220 N.J. 444, 455 (2015).]
To assure the jury understands this limited purpose, trial judges are "required" to give the jury a limiting instruction stating "fresh-complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made." R.K., supra, 220 N.J. at 456 (citing Bethune, supra, 121 N.J. at 147-48); see also State v. P.H., 178 N.J. 378, 392-93 (2004) (requiring Courts give limiting instruction). "[T]he fresh complaint rule was developed to counteract the persistent 'timing myth' that victims of sexual assault would cry out and alert others to the crime." W.B., supra, 205 N.J. at 616 (quoting P.H., supra, 178 N.J. at 392). "The rule allows the State to neutralize this myth by introducing evidence that the victim did indeed make a complaint within a reasonable time after the alleged assault." Ibid.
Furthermore, "to reduce the possibility of duplicative testimony, trial courts have discretion to determine whether multiple fresh-complaint witnesses may testify." R.K., supra, 220 N.J. at 456. "This exercise of discretion depends on the strength of the State's case because the testimony may have already been established by prior witnesses." Ibid.
Guided by these parameters, we relate the objected-to testimony. Two witnesses presented "fresh complaint" evidence: the New York foster care agency caseworker and the agency's medical assistant.
The New York foster care agency caseworker testified as follows:
[PROSECUTOR]: Did [the victim] tell you anything on that day?
[CASEWORKER]: Yes.
[PROSECUTOR]: Can you explain how that came about?
[CASEWORKER]: Basically[,] I was sitting with the girls in the bedroom, just talking to them about their new placement and being back in New York, and [the victim] said . . . she needed to say something to me, but she didn't want to say it in front of her sister. So we asked her sister to leave the room, make sure that her sister wasn't there, and then she proceeded to tell me that while she was in New Jersey that she was inappropriately touched by . . . [defendant].
[PROSECUTOR]: When [the victim] told you that did you ask her questions to ascertain the nature of the - what she was saying?
[DEFENSE COUNSEL]: Your Honor, I'm going to object.
THE COURT: Allow that. Did you ask questions?
[CASEWORKER]: Yes, I just basically asked her —
THE COURT: Just yes[.]
[CASEWORKER]: Oh, yes. Sorry.
[PROSECUTOR]: [D]id [the victim] tell you where she was touched?
. . . .
[DEFENSE COUNSEL]: Objection, again Your Honor. I think we're going beyond the bounds of what's —
[THE COURT]: No, I'm going to allow this. It's sufficient detail but — but not beyond — beyond this get into any great detail, but I'm going to allow some detail.
Q: Did she tell you whether she was touched one time or multiple times?
[CASEWORKER]: She said she was touched multiple times.
Q: Was she able to place a number on it?
[CASEWORKER]: No.
Q: What was her demeanor when she was telling you this?
[CASEWORKER]: She — she was crying and she seemed a little scared.After sidebar discussions, the objection was overruled. The caseworker then stated the victim "was scared, and now that she knows that she's back in New York she just wanted to tell someone."
Q: Did you — did she say whether she had ever told anyone else that before?
[CASEWORKER]: I did ask her. She said she did not.
Q: Did you ask her why she was telling you?
[CASEWORKER]: She said that -
[DEFENSE COUNSEL]: Your Honor, I'm going to object, again. I believe we're still going outside the parameter of —
THE COURT: The question is — the question is did [the caseworker] ask [the victim] why she was being — why she was making this revelation at this time . . . . I'll hear you at sidebar, counsel.
Next, the medical assistant was called. She performed "a transfer body check" as part of the agency's medical department, following the victim's disclosure of abuse. This testimony was elicited by the prosecutor:
Q: Okay. And without going into details of what she told you, did she tell you that she had been touched by [defendant]?
[MEDICAL ASSISTANT]: Yes, she did.
Q: And when I say touched did she - did you get enough information from her to — that indicated she was touched in a sexual manner by [defendant]?
A: Yes, I did.
Q: What was her demeanor when she was telling you that?
A: She was a bit angry, and while telling me what happened she was crying in the process of that.
We discern no error in the admission of the caseworker's basic testimony. Her statements regarding the events were narrow in scope and relayed information already testified to by the victim. We reject as unfounded the assertion the judge abused his discretion in overruling defendant's objections or the argument the caseworker improperly bolstered the victim's testimony. We note the caseworker discussed only "the fact of the complaint, [and] not the details" of the assaults. Hill, supra, 121 N.J. at 163.
Regarding the medical assistant's testimony, no objection was voiced to her initial statement. Therefore, defendant's arguments must be viewed under the plain error rule set forth in Rule 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.").
The medical assistant's testimony, as recited, also did not overstep the limits of the fresh-complaint doctrine. Further, when these statements are viewed alongside the caseworker's testimony, we do not agree with defendant's assertion the aggregate effect exceeds the boundaries of fresh complaint evidence; the testimony essentially addressed the victim's delayed disclosure, not the crime charged. We conclude the evidence was neither improperly admitted nor resulted in excessive prejudice. R.K., supra, 220 N.J. at 460.
The State recalled the medical assistant when trial resumed. Her additional testimony was limited to reciting her record of the victim's statements detailing the abuse prior to the medical examination. Defendant does not specifically attack this evidence and the trial record or briefs do not clarify whether its admission was intended as within the fresh-complaint doctrine, the medical treatment exception of N.J.R.E. 803(c)(4), or the tender years doctrine, N.J.R.E. 803(c)(27). Because we conclude other omissions require a new trial, we do not specifically discuss this issue. --------
Defendant next argues the judge improperly charged the jury regarding the use of the fresh complaint evidence. Defendant repeatedly requested charges matching the model fresh complaint jury charge; however, the instruction failed to explain the evidence was not proof of guilt, requiring reversal. We agree.
The judge did not include a limiting instruction prior to the State's presentation of these two witnesses. The final jury instructions addressed the fresh complaint evidence this way:
Now, in this case you've heard testimony that sometime after the alleged sexual abuse [the victim] complained to [the caseworker] at the first instance and then to other people after that about what had taken place, what she alleged took place. More particularly, there was testimony that [the victim] told [the caseworker] about the sexual interactions that she had with defendant.
Now, the narrow purpose of this testimony is to allow the State to introduce such evidence to negate any inference that [the victim] failed to tell anyone about the sexual offense and that therefore her later assertions at trial could not be believed.
The law recognizes that certain people have stereotypes about sexual assault complainants that may lead some of you to question [the victim]'s credibility based solely on the fact that she did not complain about the alleged sexual abuse sooner. You may not automatically conclude that [the victim]'s testimony is untruthful based only on her delayed disclosure. Rather, you may consider the delayed disclosure along with all of the other evidence, including (the victim's) explanation for her silence or delayed disclosure, when you decide how much weight to afford [the victim]'s testimony.
Glaringly absent from the charge is an instruction "that fresh complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made." R.K., supra, 220 N.J. at 456 (citing Bethune, supra, 121 N.J. at 147-48). This omission is critical.
The model jury charge for fresh complaint evidence includes, in pertinent part:
[a] fresh-complaint is not evidence that the sexual offense actually occurred, or that [alleged victim] is credible. It merely serves to negate any inference that because of (his/her) assumed silence, the offense did not occur. It does not strengthen (his/her) credibility. It does not prove the underlying truth of the sexual offense. A fresh-complaint only dispels any negative inference that might be made from (his/her) assumed silence.See State v. R.B., 183 N.J. 308, 325 (2005) (holding "insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury").
[Model Jury Charge (Criminal), "Fresh Complaint" (2011).]
"[C]lear and correct jury instructions are fundamental to a fair trial." State v. Adams, 194 N.J. 186, 207 (2008).
To warrant reversal, the error must be "clearly capable of producing an unjust result." R. 2:10-2. We have established that
[i]n the context of jury instructions, plain error is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[State v. McKinney, 223 N.J. 475, 494 (2015) (alterations in original) (quoting State v. Camacho, 218 N.J. 533, 554 (2014))].
Because the State's case primarily consisted of the victim's testimony, which was challenged and rebutted by defendant's witnesses and his own testimony, the flawed jury charge had the capacity to lead the jury to a result it otherwise might not have reached. The error mandates reversal.
Next, defendant challenges the jury charge directed to tender years evidence, which we find unpersuasive. The proposed charge was reviewed and approved by counsel. The charge unambiguously described its scope as applying to "certain video recordings and transcripts of two statements" by the victim to police and explain the juror's use when assessing the victim's credibility. Our review discerns no error. State v. Marrero, 148 N.J. 469, 496 (1997) ("[C]ourts are generally reluctant 'to reverse on the grounds of plain error when no objection to a charge has been made.'" (quoting State v. Weeks, 107 N.J. 396, 410 (1987))).
Based on our opinion and conclusion a new trial is necessary, we need not address the remaining arguments, which are unlikely to reoccur upon retrial.
Reversed. Defendant's conviction is vacated and the matter is remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION