STATE OF NEW JERSEY, IN THE INTEREST OF C.H.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1264-04T41264-04T4

STATE OF NEW JERSEY,

IN THE INTEREST OF

C.H.,

Juvenile-Appellant.

 
___________________________________________________________

Submitted March 7, 2006 - Decided

Before Judges Hoens and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, FJ-04-4612-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Gregory H. Audino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial in the Chancery Division, Family Part, Camden County, the juvenile defendant, C.H., was adjudicated delinquent, based upon acts that, if committed by an adult, would constitute fourth degree sexual contact, N.J.S.A. 2C:14-3b, and harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4a. His motion for a new trial was denied and C.H. was sentenced to two years probation on each count. In his appeal, C.H. raises the following arguments:

POINT I: THE ACTION OF THE TRIAL COURT IN CONSIDERING THE TESTIMONY OF THE CO-JUVENILE FROM A PRIOR PROCEEDING, IN WHICH C.H. WAS NOT A PARTY, WAS REVERSIBLE ERROR AS C.H. WAS DENIED FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION AND TO PRESENT EXCULPATORY EVIDENCE, AS WELL AS HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI AND XIV; N.J. CONST. 1947), ART. I, PARS. 1, 9 AND 10. (NOT RAISED BELOW)

POINT TWO: THE TRIAL COURT VIOLATED THE JUVENILE'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY SHIFTING THE BURDEN OF PROOF FROM THE STATE TO THE JUVENILE. (U.S. CONST. AMENDS. V, IV AND XIV; N.J. CONST. ART. 1, PARS. 1, 9 AND 10) (NOT RAISED BELOW)

POINT THREE: THE ADMISSION OF TESTIMONY BY THE VICTIM THAT THE JUVENILE HAD PREVIOUSLY, ON SEVERAL OCCASIONS, COMMITTED ACTS OF CRIMINAL SEXUAL CONTACT AGAINST HER, DEPRIVED THE JUVENILE OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT FOUR: THE TRIAL COURT ERRED IN DENYING THE JUVENILE'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

We reverse C.H.'s convictions and remand for a new trial.

On March 17, 2004, C.H. and S.M., a sixteen-year-old female, were in their English class during eighth period, the last period of the day. A substitute teacher was supervising the class of six or seven students. The atmosphere in the classroom was relaxed. The assignment to the students was to complete crossword puzzles.

S.M. testified that during class, C.H. walked over to her desk and whispered to her "when are you going to let me and my boy f---?" S.M. stated the remark was upsetting and made her feel uncomfortable, but she did not report it to the substitute teacher. After she finished her class assignment, S.M. gave it to the teacher and walked to the back of the classroom to join in a conversation with three other students: S.O., D.J. and another she could not recall. Upon finishing her conversation with those students, S.M. walked to the front of the classroom to gather her belongings from her desk. As she did, according to S.M., C.H. approached her from behind and grabbed her buttocks. She testified that she knew it was C.H. who touched her because she immediately turned around and he was the only person standing near her. She reacted by hitting him and she told him to stop touching her and to leave her alone.

S.M. then walked to the front of the class. This time, D.J., who had "grabbed [S.M.'s] private parts" earlier during the period while she was standing near him in the back of the classroom, exposed himself to her. S.M. waited for the bell to ring ending class, approximately two minutes, and as soon as it did, she went to the Assistant Principal's Office and reported the incidents. The Assistant Principal called the police.

S.O., one of the students with whom S.M. had conversed during the English class, testified she did not see any type of interaction between S.M. and defendant. She did, however, see D.J. pull up his shirt, appear to pull out some pubic hairs and sprinkle them in S.M.'s hair. S.O. also testified that, D.J. "was just saying a lot of profanity and things that [were] just perverted . . . ." On the other hand, according to S.O., there was no contact between C.H. and S.M. S.O. never observed C.H. grab or touch S.M. in any manner throughout the class period.

C.H. testified on his own behalf. He denied making any sexual innuendo or statements to S.M. on March 17, 2004. He denied touching her buttocks or her breasts. Further, he denied that he ever inappropriately touched S.M. or made any type of improper statements to her at any time in the past. C.H. did, however, witness D.J. sprinkle pubic hairs in S.M.'s hair on the date in question. As far as C.H. could tell, S.M. did not realize what D.J. had done and she did not react to it.

As the judge articulated his findings, he noted that S.M. had accused both C.H. and D.J. of committing delinquent acts against her in the English class. The judge took judicial notice that earlier, in a separate proceeding, D.J. had admitted his conduct and was adjudicated delinquent for the acts he committed against S.M. The judge stated "I have to give the victim a substantial amount of credibility based on that particular aspect [D.J.'s admission] and the juvenile[] defendant [has not] come up with any explanation for why. Why would this have occurred? Why would this have been made up[?]" Thus, the judge found the credibility of S.M. far outweighed defendant's credibility. He found S.M.'s "testimony to be uniquely credible," whereas he found defendant "to be a liar." He found S.O. was not an independent witness and had no credibility because she claimed she had "an ability to know what occurred exactly for a period of forty minutes involving seven individuals." The judge adjudicated defendant a juvenile delinquent on both charges in the complaint. On September 10, 2004, defendant was sentenced to two years probation on each count.

C.H. moved for a new trial based on newly discovered evidence, which the judge denied. That motion was based upon various letters written by fellow members of the gospel choir to which S.M. belonged. The choir members allege that S.M. stated in their presence that she was angry with C.H. for laughing at her when D.J. threw pubic hairs on her head and she vowed to "teach [C.H.] a lesson."

In this appeal, defendant makes four assertions of error. He asserts that the court (1) improperly took judicial notice of evidence from D.J.'s proceeding; (2) diluted the State's burden of proof; (3) improperly admitted evidence of prior bad acts; and (4) erred by not granting a new trial based on newly discovered evidence. We find the second assertion, that the State's burden was shifted or diluted, is so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Although the judge openly wondered why the defense did not present evidence to show why the victim would have fabricated her allegations against the juvenile, we do not equate that wondering with a shifting or lessening of the State's burden. We do, however, agree with defendant that the remaining assertions of error warrant a reversal and remand for a new trial.

First, the judge expressly acknowledged that he was taking judicial notice of another juvenile's statements implicating himself in a separate proceeding and that he utilized that fact to enhance or bolster the credibility of S.M. in this case. New Jersey Rule of Evidence 201(b), governing the use of judicially noticed facts, provides that:

Facts which may be judicially noticed include (1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute, (2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute, (3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and (4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.

The facts as to which the judge took judicial notice do not come within any of the permissible categories. In his findings, the judge stated that:

So we have to listen to the testimony of the victim and the testimony of the juvenile defendant. The one focus that comes to the Court's mind is why would this victim, who sure is a victim, because we had testimony for a co-defendant who says that she was a victim, make a substantial crude allegation of criminal sexual contact about two individuals where one individual she has the -- the information correct because he admits to it, and the second individual she gets completely wrong. . . . she tell[s] us about something happening to her by two individuals, one of those individuals admitted to the Court, and the Court does take judicial notice of the admission that occurred earlier here in this courtroom. I have to give the victim a substantial amount of credibility based on that particular aspect . . . .

(emphasis added).

C.H. was not a party or participant in D.J.'s trial and D.J. is not alleged to have made any statement inculpating C.H. It was not proper for the judge to take notice of facts or findings from a separate proceeding to which C.H. was not a party and to rely upon those facts as the basis for a credibility determination adverse to defendant or to establish a fact or facts against defendant. Plainly, N.J.R.E. 201 does not authorize such a result. Compare, e.g., N.J.R.E. 804(b)(1)(B) (describing the requirements for the admissibility of prior testimony when the declarant is unavailable).

Moreover, the judge's act of taking judicial notice does not comport with the basic premise of N.J.R.E. 201, which grants "judicial control and trial expedition" to "declare as settled all facts that are indisputable." Graham C. Lilly, An Introduction to the Law of Evidence 7 at 13 (1978). C.H.'s guilt does not flow inevitably or indisputably from D.J.'s admissions of guilt. There was no claim that the actions of the two juveniles were joint or dependent, and it was error for the judge to assume that if one juvenile admitted he did as S.M. accused, then the second juvenile must also be guilty. That is a blatant non sequitur. Although the utilization of D.J.'s admission to enhance S.M.'s credibility is a sufficient error to warrant a new trial, we address the remaining assertions of error.

S.M. testified that C.H. had inappropriately touched her on three or four prior occasions. She stated that on two occasions he grabbed her buttocks and on two or three occasions, he had touched her breasts. S.M. also testified that C.H. had made vulgar or profane remarks to her on approximately four different occasions. She did not remember the specific days but remembered the incidents. All of the incidents she described were alleged to have taken place in English class and occurred between January 2004 when she joined the class and March 17, 2004, the date she went to the Assistant Principal. S.M. had not reported C.H.'s alleged prior sexual comments or touching incidents to the Assistant Principal. S.M. stated that the regular English teacher merely told the boys to stop but took no other effective action such as informing the school administration or the police. Inquiry concerning these prior instances of misconduct was allowed over the objection of defense counsel. R. 1:7-2. The court ruled such evidence was admissible to show a course of conduct. The charges against C.H., however, related to his comment and conduct on March 17, 2004. He was not charged with a series of acts alleged to constitute a pattern or course of harassment. Course of conduct was therefore not an element of the charged offense. Its relevance would depend on meeting an exception to N.J.R.E. 404(b).

"Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith." State v. G.V., 162 N.J. 252, 257 (2000). N.J.R.E. 404(b), however, permits such evidence to be admitted under certain circumstances "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Evidence of this type is subject to being excluded under N.J.R.E. 403 if the prejudicial value substantially outweighs the probative value.

The admissibility of relevant evidence falls largely with a trial court's discretion. State v. Nelson, 173 N.J. 417, 470 (2002). A trial court's ruling regarding N.J.R.E. 404(b) whether to admit other crime evidence is reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 266 (1987). Nevertheless, in order to assist trial judges in avoiding the "over-use of extrinsic evidence of other crimes or wrongs," the Supreme Court has held that the application of N.J.R.E. 404(b) requires a consideration of each of the following factors:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

The State concedes the evidence of defendant's alleged prior bad acts cannot be used in sexual assault cases to demonstrate absence of mistake or accident. See G.V., supra, 162 N.J. at 260-61. Instead, the State asserts that the evidence was admissible to show motive or intent or admissible to demonstrate defendant's continuing plan. The State's argument, however, is the equivalent of absence of mistake and amounts to inappropriate bootstrapping. We will not "play a name-game" as the State suggests, in order to circumvent decisional law precluding the use of evidence to demonstrate the absence of mistake.

It is disputed whether any prior incident was ever the subject of a complaint and there was no corroborative evidence proffered to establish that the incidents occurred. Therefore, the evidence failed to meet the third prong of the Cofield test, since S.M.'s allegations of defendant's other bad acts were not shown by clear and convincing evidence. On the contrary, the evidence amounted to undesirable general propensity evidence of unsubstantiated assertions of a type long held to be inadmissible. See, e.g., Biunno, New Jersey Rules of Evidence comment 7 on Rule 404 (N.J.R.E. 404(b) is a rule of "'exclusion' rather than 'inclusion,' and is intended to preclude admission of . . . bad acts when the evidence is offered solely to establish a party's propensity or predisposition.").

Lastly, defendant moved for a new trial based on newly discovered evidence, and the judge denied that motion. Pursuant to Rule 3:20-1, the trial court, on defendant's motion, may grant the defendant a new trial if required in the interest of justice, but newly discovered evidence, must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted. State v. Ways, 180 N.J. 171, 187 (2004) (citing State v. Carter, 85 N.J. 300, 314 (1981)). All three tests must be met before the evidence can justify a new trial. Ibid.

"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure it is not the product of fabrication, and, if credible and material, it is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Ways, supra, 180 N.J. at 187-88. See, e.g., State v. Buonadonna, 122 N.J. 22, 51 (1991) (finding "sketchy" evidence insufficient to warrant a new trial).

The newly discovered evidence in this case consisted of letters from four girls who participated in gospel choir with S.M. The girls did not come forward until after the trial. Each girl alleges in her letter that S.M. admitted at a gospel choir event that she wanted to get even with C.H. for laughing at her when D.J. put pubic hairs on her head. Such evidence is material since it supports defendant's claim that he was falsely accused and it may provide the motive about which the judge had wondered. Although the date of the gospel choir event, at which this disclosure was made, is not clear on the record, the evidence was not readily discoverable since the four girls did not come forward prior to or during the trial. It is not unreasonable or surprising that these witnesses were not discovered prior to their coming forward of their own volition. Finally, the evidence, if determined credible at trial, would change the verdict since it demonstrates that S.M. fabricated her accusations of sexual misconduct by C.H.

In summary, we find that three of defendant's assertions have sufficient merit to warrant a new trial.

Reversed and remanded for further proceedings.

 

N.J.R.E. 804(b)(1)(B) provides:

Subject to Rule 807 [requiring advance notice], the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

. . . .

(B) In a civil action or proceeding, and only when offered by the defendant in a criminal action or proceeding, testimony given in a prior trial, hearing or deposition taken pursuant to law to which the party against whom the testimony is now offered was not a party, if the party who offered the prior testimony or against whom it was offered had an opportunity to develop the testimony on examination or cross-examination and had an interest and motive to do so which is the same or similar to that of the party against whom it is now offered.

S.M. testified she told her regular English teacher, but that teacher's September 9, 2004 letter, submitted on defendant's motion for a new trial, states "[a]t no point during the school year did [S.M.] notify me that [C.H.] had touched her inappropriately or harassed her in any way."

(continued)

(continued)

14

A-1264-04T4

RECORD IMPOUNDED

April 13, 2006

 


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