STATE OF NEW JERSEY v. W.R.O.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0353-03T40353-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.R.O.

Defendant-Appellant.

_______________________________

 

Submitted December 5, 2005 - Decided March 16, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-11-1332.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant, W.R.O., was convicted of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1), and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. Following the denial of his motion for judgment of acquittal notwithstanding the verdict, and in the alternative, for a new trial on the grounds that the verdict was against the weight of the evidence, defendant was sentenced to a fifteen-year term of imprisonment for the aggravated sexual assault conviction, to a concurrent seven-year prison term for the conviction of endangering the welfare of a child, and ordered to comply with all applicable Megan's Law procedures, including no contact with the victim. Appropriate assessments and penalties were also imposed. Defendant appeals his convictions and sentences. We affirm.

In July 1998, defendant resided in a home owned by his mother in Morris County. Living with defendant were Joyce, his girlfriend; Joyce's eight-year old daughter, C.D.; and defendant's two children from a prior marriage. On July 17, 1998, defendant was sitting on the living room couch with C.D., while Joyce was in another room on the telephone. Defendant reached over and put his finger into C.D.'s vagina, after which she pulled his hand away while feeling "weird." Suspecting something wrong, Joyce telephoned her friend K.R. on July 20, 1998. K.R. is also a friend of Joyce's two sisters, Barbara and Cathy. Because Joyce was "very upset and crying on the phone," K.R. proceeded to Joyce's home and "tried to calm her down." After conversing with Joyce and suspecting "there was abuse from [defendant]," K.R. spoke to C.D. in the kitchen. When K.R. asked C.D. if defendant had hurt her in any way, "[s]he said yes." When asked "where," C.D. "pointed to her vagina." K.R. advised Joyce that the matter should be reported to the police, and then went home.

The following day, K.R. went to the local police headquarters, and advised a sergeant what C.D. had told her. K.R. requested the sergeant not to reveal her name as the informing party. The sergeant immediately undertook an investigation. Upon finding Joyce and her daughter at home with defendant, the sergeant requested that Joyce and C.D. report to headquarters for an interview. To honor K.R.'s request, the sergeant advised Joyce that he had received a report from the New Jersey Division of Youth and Family Services (DYFS) concerning possible sexual touching or abuse of C.D. by defendant. During the interview, the sergeant described Joyce as being more concerned about her living arrangements than with the incident he was investigating because she was worried about her relationship with defendant and if "there were any problems," she might have to leave defendant's mother's house.

The sergeant first interviewed C.D. in her mother's presence after he explained about good and bad touching, as well as the difference between the truth and a lie. C.D. denied any improper touching, and was calm during the interview. The sergeant next interviewed C.D. alone. When asked if anyone had told her to lie to him, C.D. hesitated slightly, but denied it. She admitted that she said "ouch" when she was on the couch with defendant, but stated that it was because defendant's son had bent her finger back. The sergeant then requested a detective from the police department to assist in the investigation. When asked in the presence of the two police officers about improper touching, C.D. became teary eyed, but denied it. When asked if she would feel more comfortable speaking to a female officer about the matter, C.D. responded that "she would." The detective took over the investigation, and notified DYFS.

On the following day, July 21, 1998, the detective requested defendant to come to headquarters for an interview. He arrived in the company of Joyce. After being advised of his Miranda rights, defendant denied improperly touching C.D., and stated that he could not think of anything that had occurred which could have been misconstrued by C.D. as improper touching. Present at the time of the interview was Maureen Brown, of DYFS. The detective next interviewed Joyce after advising Joyce of her Miranda rights. After about thirty minutes, the detective advised Joyce that he found her statement inconsistent, and that he did not believe her. While in the lobby of police headquarters, defendant approached the detective and advised him that he had a possible explanation. He stated that when C.D. was on the couch with him sitting Indian style she yelled "ouch, ouch, ouch," and "he thought that she had a wedgie[,] [a]nd what could have been misconstrued was the fact that he helped her uncross her legs, to help her with that wedgie, and that [is] probably what [the detective] [was] talking about."

On July 31, defendant voluntarily went to police headquarters at 8:30 a.m. and spoke with the detective, who again advised defendant of his Miranda rights, and interviewed him. While he continued to deny any inappropriate conduct, defendant agreed to speak to other investigators, including Sergeant Grant and Detective Nuel of the New Jersey State Police. The two officers arrived at police headquarters at approximately 12:45 p.m., and re-advised defendant of his Miranda rights. When asked why C.D. might have accused him of touching her, defendant expressed surprise stating that he thought a third party, not the child, had made the allegation. He then told the officers the same version of accounts concerning the "wedgie" that he had told the local police detective. At approximately 3:30 p.m., Detective Nuel advised defendant that he did not believe that defendant was being "truthful." It was then that defendant changed his account of events. Defendant informed Detective Nuel that it was C.D. who grabbed his hand, and "rub[bed] his finger in and out of her vagina" for about "thirty to ninety seconds." Defendant stated that C.D. had pulled her shorts to the side because he could not get his hand through the top. After giving a verbal statement, defendant wrote out and signed a statement of the incident which was read to the jury:

I was sitting on the couch. [There] was thunder and [lightning]. I am very scared of it. I was not paying attention to anything going on. [C.D.] asked me to scratch her back. She pulled up her shirt. She had prickly heat. I scratched her for about a minute or so and stopped. I put my hand back between my legs and sat the way I usually do. She turned around on the couch and went to put her head on my legs. I said no, my legs hurt.

She sat up facing the back of the couch and was moving around. She took my hand. She rubbed my middle finger on her vagina. I realized what was going on after about 30 to 90 seconds. I pulled my hand away. She yelled ouch. Now that I think about it, it -- was not my middle finger, it was my first, up to the first joint. She had her shorts pulled to the side, she could not [get] my hand in through the top. I looked back, and she was pulling her shorts back. She gave me a look, like a help look or I did something wrong look. She yelled ouch when I pulled away and two times when she was pulling her shorts back to the side. I thought she had a wedgie, because she said -- she said it two more times.

Upon completing the signed statement, defendant was arrested. After his arrest, defendant was interviewed by Detective Rosato of the Morris County Prosecutor's Office. Defendant told Rosato "that he had been truthful when he had spoke[n] with the State Police and . . . that [is] what happened."

At approximately 9:49 p.m., the local police detective and Rosato interviewed Joyce after advising her again of her Miranda rights. The detective asked Joyce whether she had instructed her daughter to deny the incident. Over objection, the detective responded "[t]hat she had instructed her daughter not to reveal it and to say no, because she told her daughter that if she said yes, that DYFS would take her away and that they would arrest [defendant], and that they would have no place to live." Joyce was arrested, and charged with child endangerment and tampering with a witness.

On February 11, 1999, at the request of the Prosecutor's Office, Margaret Pittaluga, a licensed, clinical social worker, conducted a videotape interview of C.D., during which the child advised her that defendant had touched her in her vaginal area. C.D. pointed to her vaginal area, and referred to it as her "private." She stated that defendant had touched her under her clothing, and inside her vagina. The video was played for the jury, and introduced into evidence.

At trial, C.D., then age ten, testified that while she and defendant were sitting on the couch, defendant touched her "[d]own there," pointing to "[t]he vagina." When asked how defendant had touched her, C.D. responded with his finger "[i]nside" of her body. When questioned whether she told the police officers a lie when she was first interviewed, she stated that she told them "[a] lie" because "[m]y mom told me to lie."

On appeal, defendant raises the following issues:

POINT I.

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL.

A. THE TRIAL COURT ERRED BY ALLOWING CODEFENDANT'S HEARSAY STATEMENT INTO EVIDENCE WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONTATION.

B. THE TRIAL COURT ERRED BY NOT PROPERLY INSTRUCTING THE JURY UNDER CLAWANS THAT THEY COULD DRAW AN ADVERSE INFERENCE FROM THE STATE'S FAILURE TO PRODUCE CODEFENDANT AND THE VICTIM'S AUNT AS A WITNESS.

C. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II.

THE SENTENCE IMPOSED BELOW WAS MANIFESTLY EXCESSIVE.

Defendant argues that the trial court erred by permitting the local police detective to testify over objection that Joyce had initially told her daughter to lie to the police concerning defendant's actions. Defendant contends that the admission of the out-of-court statement by Joyce "violated [his] right [to] confrontation under the Federal Constitution and New Jersey's common law." Defendant asserts that the hearsay exception relied upon by the State, N.J.R.E. 803(c)(25), is not applicable because the rule "applies only to a declarant accused of the crime."

The State concedes that Joyce's out-of-court statement is not admissible as a declaration against penal interest, N.J.R.E. 803(c)(25), for the reasons presented by defendant, that is, that a declaration against interest can be admitted against a criminal defendant only if the defendant is the declarant. Here, Joyce, the declarant, was not the defendant on trial. Notwithstanding, the State counters that the trial judge reached "the correct result" because the statement was not hearsay because it was not offered for the truth of its contents, but only to explain why C.D. "had initially denied the abuse." The State asserts that the admission of the statement did not violate defendant's right of confrontation because "the statement[] [was] offered for reasons other than to prove the truth of [its] content[]." We concur.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). Absent an abuse of discretion, evidentiary decisions of the trial judge should not be disturbed. State v. Sands, 76 N.J. 127, 144 (1978). Our role is not to substitute our judgment for that of the trial judge, but to decide whether the judge pursued a manifestly unjust course. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Because hearsay is deemed "untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), it is "not admissible except as provided by [the Rules of Evidence] or by other law." N.J.R.E. 802. However, "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay, and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002). Where evidence is admissible for purposes other than proving the truth of the matter asserted within the statement, the trial court should in most instances instruct the jury as to its limited use by appropriate instructions. N.J.R.E. 105.

The local police detective was permitted to testify over objection of defendant that Joyce had informed him during his investigation that she had instructed C.D. to deny the abuse because "if [C.D.] said yes, then DYFS would take her away and . . . they would arrest [defendant] and . . . they would have no place to live." The State offered the statement for the purpose of explaining why C.D. had originally denied the incident when first interviewed by the police, contrary to her trial testimony. The court admitted the statement as an exception to the Hearsay Rule under N.J.R.E. 803(c)(25), finding that it constituted a statement against Joyce's penal interest for which she was subsequently indicted for tampering with the witness and endangering the welfare of a child. In admitting the evidence, the judge instructed the jury as to its use:

Members of the jury, with regard to the testimony that you [have] heard from [the detective] concerning the statements of Joyce . . . to him when she was interviewed, I [am] permitting you to receive that testimony for a limited purpose. You can use that testimony only for whatever you feel that it may be - - that it may have to explain why [C.D.] initially gave the police the version of the events that she [has] testified to, that she gave to them.

You cannot use the testimony of the statements of Joyce . . . on the issue of deciding the guilt or innocence of [defendant]. You must - - you must also determine whether this testimony concerning what [Joyce] allegedly told [C.D.] is true. If you find it is not true, you cannot use it for any purpose whatsoever. If, however, you find it is true, you can use it only for the limited purpose that I [have] explained concerning the testimony of [C.D.] and her statements to the police when she was initially interviewed by the police.

At the conclusion of trial, the trial judge again instructed the jury:

Now, during the trial, if you remember, I did give you a couple of limiting instructions. The first limiting instruction that I gave to you concerned statements attributed to Joyce . . . , the mother of [C.D.].

This testimony concerning Joyce['s] . . . statements was admitted for a limited purpose. And that purpose concerned the -- the argument by the State that the statements by the mother, Joyce . . . , about instructing her daughter to lie explained the testimony of the child when she was initially interviewed.

You can use those statements only for whatever relevance you feel it may have to explain why [C.D.] initially gave the police the version of events that she gave them. You cannot use it on the issue of the guilt or innocence of [defendant]. To do so, would constitute a violation of your oath.

You must also determine whether this testimony concerning what [Joyce] initially told her daughter is true. If you find it is not true, you cannot use it for any purpose whatsoever. If, however, you find that it is true, you can use it only for the limited purpose that I [have] explained.

We determine that the mother's statement was not offered for the truth of the matter asserted, and therefore, does not constitute hearsay. N.J.R.E. 801. It was offered solely to explain C.D.'s actions in denying the abuse at the time she was first interviewed. Joyce's statement did not go to defendant's guilt or innocence, and there is no evidence in the record from which the jury could have inferred that Joyce had told C.D. to lie because Joyce herself had seen the incident, or personally knew that defendant was guilty. Because we conclude that the statement is not hearsay, that the trial judge erroneously admitted the statement under N.J.R.E. 803(c)25, was harmless. R. 2:10-2. However, that does not end our inquiry. Defendant also asserts that the admission of the statement, whether hearsay or not, violated his Sixth Amendment right of confrontation, and New Jersey's common law. U.S. Const. amend. VI; State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994). The right of confrontation is similarly guaranteed by Article I, paragraph 10 of our Constitution.

While acknowledging a defendant's right of confrontation in a given case may require exclusion of an out-of-court statement from a non-testifying declarant, Laboy, supra, 270 N.J. Super. at 304-05, we conclude that the principle is not applicable here. Laboy is factually distinguishable. In Laboy, an investigating officer was permitted to testify that a non-testifying co-defendant gave a statement blaming the defendant for the killing and had said in an interview that he blamed most of the violence on the defendant. Id. at 302. This court held that evidence of the co-defendant's statements violated the defendant's right of confrontation. Id. at 304 (citing Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968)) (holding that an out-of-court statement by a co-conspirator must be inculpatory to offend the Confrontation Clause). Here, Joyce's statement was not inculpatory, and was admitted for the limited purpose of explaining C.D.'s state of mind when first interviewed by the police.

Nor does the statement violate the holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the defendant was tried for assault and attempted murder. The Washington State Court allowed the State to play a tape-recorded statement in which the accused's wife, who was otherwise barred from testifying because of a marital privilege, described defendant stabbing the victim. The trial court concluded that the accused's Sixth Amendment right of confrontation did not bar admission of the statement because the statement bore particularized guarantees of trustworthiness. The United States Supreme Court reversed, holding that the Sixth Amendment right to confrontation bars the use of any hearsay "testimonial" evidence, regardless of its reliability where a declarant is unavailable for trial, and defendant has not been afforded a prior opportunity to cross-examine the witness. Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

While the Supreme Court in Crawford left "for another day any effort to spell out a comprehensive definition 'testimonial,'" id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203, it did address the issue at hand. The Court held that "[t]he Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9. See also United States v. Hendricks, 395 F.3d 173, 183 (3d Cir. 2005). Because the statement was admitted for purposes other than for the truth of the matter asserted, we reject defendant's argument that his right to confrontation was violated.

Even assuming that we were to reach a different determination concerning the admissibility of Joyce's statement, we are satisfied that its admission does not constitute harmful error requiring reversal. "Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); R. 2:10-2. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Burton, supra, at 289. The statement does not directly or indirectly implicate defendant in the crimes, and we conclude that the other evidence in the case of defendant's guilt was overwhelming. Ibid. C.D. testified as to defendant's wrongful conduct; K.R. testified as to complaints made by C.D. before she ever went to police headquarters; the jury viewed the videotape of C.D.'s interview with the clinical social worker; and the jury heard defendant's statements given to the police.

Defendant argues next that the trial judge erred by not instructing the jury under Clawans, that it could draw an adverse inference against the State because the State failed to produce Joyce and C.D.'s aunt, Cathy, with whom C.D. now lives, as witnesses. Defendant contends that "there was a fair inference that C.D. never told her mother or her aunt what defendant allegedly did to her due to their nonproduction as witnesses." We disagree.

A Clawans charge allows the jury to draw an inference that the missing witnesses would have had evidence unfavorable to the party who would reasonably have been expected to produce them. Clawans, supra, 38 N.J. at 170-71. An adverse inference for the failure to call a witness is proper only if that witness's "testimony would have been superior" to that already produced with respect to the issue to be proven. Id. at 171. It is not proper if the witness is "available to both parties" or if the witness's "testimony would be cumulative." Ibid.

Both witnesses were under subpoena by the State, and the prosecutor agreed to have the witnesses summoned if defendant desired to have the witnesses testify. As such, the witnesses were equally available to both parties. Also, the testimony of the two witnesses concerning any complaints would have been cumulative to evidence already produced by the State. C.D. testified at trial concerning the actions of defendant; a videotape was played of C.D.'s interview with Pittaluga during which C.D. advised Pittaluga of the actions of defendant; K.R. testified to the complaints made to her by C.D. before C.D. was interviewed by the police; and defendant made both verbal and written statements concerning the incident. The trial judge properly denied the request for the Clawan's charge under the facts of this matter.

Defendant argues next that the verdict was against the weight of the evidence. We conclude otherwise. Pursuant to Rule 3:20-1, after a jury finds a defendant guilty, a defendant is entitled to move to set aside the verdict as against the weight of the evidence and for a new trial. Rule 3:20-1 states:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The object of the new trial motion is to "correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The trial judge is directed to evaluate the tangible factors relative to the proofs and the intangible "feel of the case." Ibid. In such a review, an appellate court must determine whether a jury could have rationally found that the elements of the crime were presented beyond a reasonable doubt. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Where the jury reaches a verdict based on witness credibility, such a verdict must be upheld absent clear evidence of mistake or prejudice. Ibid. A jury is free to accept or reject the testimony of a witness based on credibility. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

Defendant contends "[t]here was ample evidence that the witnesses were not credible," including that "[t]he child repeatedly denied the sexual abuse until February 1999." After a careful review of the record, we are satisfied that the evidence of guilt was overwhelming and the jury had the opportunity to assess the credibility of C.D. C.D.'s testimony, together with her complaints made to K.R. and the statements made by defendant, support the verdict.

Lastly defendant argues that the sentence is manifestly excessive. Defendant contends that he should have been sentenced to a term one-degree lower because this was his first criminal offense, and he was amenable to probation. Defendant asserts that the trial judge failed to properly weigh and balance the aggravating and mitigating sentencing factors.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "'clearly mistaken.'" State v. Krumphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). On review, we look to what is reasonable and fair in light of the factors considered by the court. We are "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent[,] credible evidence in the record.'" State v. Natale, 184 N.J. 458, 489 (2005) (Natale II) (quoting O'Donnell, supra, 117 N.J. at 215).

The judge found as aggravating factors: "The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to . . . extreme youth, or was for any other reason substantially incapable of exercising normal, physical, or mental power of resistance," N.J.S.A. 2C:44-1a(2); that there was a "risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); and that there was a "need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1a(9). The trial judge found as a mitigating factor that "[t]he defendant has no history of prior . . . criminal activity." N.J.S.A. 2C:44-1b(7). We have reviewed the transcript of sentencing, and are satisfied that the judge adequately explained his findings and that they are supported by credible evidence in the record.

Defendant argues that the judge should also have found as mitigating factors that he "has a long history of substance abuse, and although this does not constitute a defense," that it constitutes a "substantial ground[] tending to excuse or justify . . . [his] conduct," N.J.S.A. 2C:44-1b(4), and that "imprisonment of the defendant would entail excessive hardship to himself and dependents." N.J.S.A. 2C:44-1b(11). We disagree. Although defendant has admitted using cocaine and marijuana, according to the pre-sentence report, the last use of the unlawful substances was twelve years earlier. We determine that there is no nexus between the past substance abuse and the crime. As to any hardship to himself or his family, the record is devoid of any facts which would show hardship to the defendant or members of his family which are not cast upon all defendants facing prison. We see no reason to make an exception.

The judge imposed "the middle of the road" sentence for a first-degree offense, fifteen years. We find no error in the judge's application of the aggravating and mitigating factors, or in the sentence imposed. Accordingly, the convictions and sentences are affirmed.

 

N.J.S.A. 2C:7-1 to -11.

Joyce and the names of her two sisters, Barbara and Cathy, are fictitious names. Joyce was charged under the same Indictment as defendant with second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a, and third-degree witness tampering, contrary to N.J.S.A. 2C:28-5a. Joyce pled guilty to both charges prior to defendant's trial.

Defendant's children are from defendant's marriage to Barbara, Joyce's sister.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The interview was sound recorded by Detective Rosato, the sound recording of the interview was played at trial, and a transcript thereof was provided to members of the jury to follow along at the time the tape was played. At the conclusion of Detective Rosato's testimony, the tape itself was marked into evidence, but a copy of the typed transcript thereof was not marked into evidence, and a verbatim record was not made of the content of the audio played during the proceeding, contrary to Rule 1:2-2 which provides in part: "[u]nless a transcript thereof is marked into evidence, a verbatim record shall be made of the content of an audio . . . tape played during the proceedings[,] and the tape itself shall be marked into evidence as a court's exhibit and retained by the court."

"In Washington, this privilege does not extend to a spouse's out-of-court statements admissible under a hearsay exception . . . ." Id. at 40, 124 S. Ct. at 1358, 158 L. Ed. 2d at 185.

State v. Clawans, 38 N.J. 162 (1962).

(continued)

(continued)

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A-0353-03T4

RECORD IMPOUNDED

March 16, 2006