STATE OF NEW JERSEY v. NATHANIEL JEFFERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 1702-04T3A-6578-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHANIEL JEFFERSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 2, 2005 - Decided April 5, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Burlington County,

Indictment No. 01-11-1377.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Susan Brody, Assistant Deputy

Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Jennifer B. Paszkiewicz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The principal issue in this appeal is whether a thirty-two- year-old autistic, mentally retarded woman was competent to testify at the trial of the defendant accused of sexually assaulting her. This issue inevitably presents us with the need to strike the appropriate balance between safeguarding the constitutional rights of the accused and protecting the constitutional rights of victims, especially those who are particularly vulnerable to attack.

Defendant Nathaniel Jefferson appeals from a judgment of conviction entered on March 26, 2004 and amended on April 15, 2004 after a jury found him guilty of three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7). He was sentenced to an aggregate term of seventeen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was acquitted on one count of aggravated sexual assault.

Defendant was employed as a day program instructor at Willow Glen Academy (Willow Glen), notwithstanding his fairly extensive criminal history which included convictions for "offensive touching," contempt of a family court protective order, "aggravated menacing - displaying a deadly weapon - knife," resisting arrest and several violations of probation with an ultimate State prison sentence, as indicated in the adult Pre-Sentence Report.

The charges arose out of several incidents involving R.M., a thirty-two-year-old autistic, mentally retarded resident. Defendant's job responsibilities included transporting residents, assisting with daily functions and dispensing medications.

On July 13, 2001, Priscilla Neyor was working as a residential care provider in R.M.'s residence. She had arrived at work at about 3:45 p.m. and began preparing dinner for the five female residents under her care. Defendant and another staff member, Janet Lewis, were on duty when Neyor arrived. Lewis left at 4:30, apparently walking out of the residence with defendant. Neyor heard the alarm on the door signaling that they had left, but she did not actually see them leave. While Neyor was preparing dinner, defendant came into the kitchen and startled her because she did not hear the alarm indicating that he had re-entered the building. When Neyor asked defendant what he was doing there, he said he returned to sign the "med" book, a log employees sign after dispensing medications to the residents.

After defendant left the kitchen, Neyor called R.M. to come downstairs and do her laundry. R.M. did not respond, and defendant asked Neyor if he could get her. Neyor refused defendant's request because Willow Glen policy did not allow male staff members upstairs in a female residence.

A little while later, when R.M. had not come downstairs, Neyor went to the bottom of the stairs to call her again. R.M.'s room was at the top of the stairs and Neyor saw defendant leave R.M.'s room. Neyor asked defendant what he was doing in R.M.'s room and he told her that he went to help R.M. bring her laundry downstairs. He was not carrying any laundry, however, and Neyor noticed that he looked nervous.

Neyor was familiar with the behavior R.M. exhibited when she was upset or something was bothering her, and Neyor thought R.M. looked very upset when she came out of her room. When R.M. sat in the dining room, she leaned over to one side. Neyor called her into the kitchen to ask what was wrong, and R.M. told her, "My butt hurts" and "Nate stuck his penis in my butt."

At about 5:00 p.m., Cynthia Downes-Ray, the house supervisor, arrived. She observed that R.M. "was not herself," and that her facial expression and body language indicated that something was wrong. When Downes-Ray spoke to R.M., she repeated what she had told Neyor. Downes-Ray then took R.M. to Kennedy Hospital in Cherry Hill where she was interviewed by a sexual assault nurse examiner, Brandi Nice. R.M. indicated to Nice that defendant had put his penis in her vagina, as well as her "butt." She ultimately indicated that further sexual contact had occurred on a number of occasions. A full rape kit assessment was performed but no evidence of sexual assault or physical trauma was found.

The matter was reported to the police and on July 27, 2001, Medford Township Police Sergeant Gary Lang and Detective Richard Henry interviewed defendant. Defendant was advised of his Miranda rights and signed a card acknowledging them. The officers presented him with a search warrant for buccal swabs to obtain DNA samples.

Defendant initially indicated he did not recall R.M. He then claimed that he went to her room to help her look for a newspaper and that she grabbed him by the arm, pulled down her pants, unzipped his pants and began to perform fellatio on him. He said he stopped before ejaculating and went downstairs where he spoke to Neyor. He later admitted that he returned to R.M.'s room and penetrated her anally and acknowledged several sexual incidents with R.M.

At a hearing to determine whether R.M. was competent to testify, defendant presented Mark Barry Siegert, Ph.D., as an expert in forensic psychology. Siegert testified that he reviewed R.M.'s background information, observed a videotape of her and interviewed her in order to determine her competency to testify. He indicated that her verbal I.Q. is fifty-six, meaning that she has little understanding of language and "does not grasp the meaning of many simple sentences and phrases." He concluded that she was not competent to testify.

After observing R.M., hearing Siegert's testimony and the arguments of counsel, the trial judge found that R.M. "knew where she was. She knew who [the judge] was. She knew she was in a court. She knew right from wrong. She knew she wasn't supposed to tell a lie. She met all the basics." He indicated that her testimony "is probably the best evidence in this case" and "[i]ts probative value is substantial, has the potential to be substantial, and I think it outweighs any prejudice as to any confusion that she may engender or whether in fact she's going to be an . . . undue[ly] sympathetic individual." The judge concluded that the State had satisfied the two-prong test of N.J.R.E. 601 and allowed the testimony.

On its direct case, the State presented the testimony of Elliot Atkins, Ph.D., as an expert in clinical and forensic psychology, to testify before the jury with respect to R.M.'s verbal capabilities and ability to consent to sexual advances. He reviewed R.M.'s records and the discovery materials relevant to the case. He interviewed her parents and examined R.M. for approximately three hours before determining that she "is capable of functioning . . . like a seven or eight year old at best. When it comes to requiring the skills necessary to communicate or deal effectively with social situations, her level is significantly lower than a seven or eight year old." In Atkins' opinion, "her communication skills - by communication, I mean expressive language, her ability to let others know what she's thinking or how she's feeling were much more like a three-year-old child," although she functioned as an "eight or nine-year-old as far as receiving and understanding." He further testified that with respect to someone in a position of authority over her, she would be unable to effectively refuse a sexual advance or distinguish between right and wrong.

In this appeal, defendant argues:

POINT ONE

THE COURT'S ERRONEOUS RULING THAT [R.M.] WAS COMPETENT TO TESTIFY DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL

POINT TWO

THE COURT ERRED IN ADMITTING ALL THREE OF [R.M.'S] PRIOR STATEMENTS TO HER CAREGIVERS AND TO A HOSPITAL NURSE AS FRESH COMPLAINT AND/OR EXCITED UTTERANCES, AND COMPOUNDED THAT ERROR BY FAILING TO PROVIDE THE JURY WITH THE REQUISITE LIMITING INSTRUCTIONS. (Partially Raised Below.)

POINT THREE

IN LIGHT OF ALL OF THE APPLICABLE CIRCUMSTANCES, THE 17-YEAR TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE AND MUST BE VACATED. DEFENDANT SHOULD BE RESENTENCED TO A TERM NOT EXCEEDING 15 YEARS

The standard for determining the competency of a witness is set forth in N.J.R.E. 601:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

The determination of whether a person is competent to testify lies within the discretion of the trial court. State v. R.W., 104 N.J. 14, 19 (1986); State v. Krivacska, 341 N.J. Super. 1, 36 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

[P]eople who suffer from insanity or mental disability could be disqualified under N.J.R.E. 601 only if the trial court makes the finding that they are incapable of either communicating adequately or understanding the obligation of a witness to tell the truth. If a witness's mental disability would make a judge conclude that no trier of fact could reasonably believe that the witness perceived the matter about which he wishes to testify, then the witness could be prohibited from testifying about that particular matter under N.J.R.E. 602. If the testimony of a mentally disabled witness might be too misleading or confusing, or of unduly limited probative value, it might be excluded by the trial court under N.J.R.E. 403.

[Biunno, Current N.J. Rules of Evidence, comment 6 to N.J.R.E. 601 (2005).]

In order to testify, a "witness must understand the difference between right and wrong, that to tell the truth is right and that in some way he will be punished if he lies to the court." State v. Davis, 229 N.J. Super. 66, 78 (App. Div. 1988). "The same rules apply in determining the competency of individuals afflicted by mental retardation or mental illness." Krivacska, supra, 341 N.J. Super. at 36 (citing State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997)).

Defendant argues that the trial court erred in finding R.M. competent because, although she demonstrated an ability to tell "the truth," she did not demonstrate a sufficient awareness of what "the truth" actually was. Defendant maintains that R.M.'s "capacity to understand questions and to formulate appropriate answers was so severely limited by her multiple disabilities that she was not mentally equipped to testify at trial." We disagree.

Here, the trial judge had the opportunity to observe R.M. and consider the testimony of defendant's expert witness. As with a credibility determination, a competency determination is based upon factors not necessarily amenable to preservation in the written record, such as demeanor. We have carefully reviewed the record, and we find no basis upon which to disturb the trial judge's exercise of discretion. R. 2:11-3(e)(2).

Defendant next argues that the trial court erred in admitting R.M.'s prior statements to her caregivers and a hospital nurse under the "fresh complaint" rule. The "fresh complaint" rule is based on common law and has not been codified in New Jersey. The rule "permits proof that the . . . victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice." State v. Balles, 47 N.J. 331, 338 (1966) (citing State v. Gambutti, 36 N.J. Super. 219, 225 (App. Div. 1955), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)). Fresh complaint evidence may be admitted as part of the so-called res gestae or as an excited utterance under N.J.R.E. 803(c)(2). State v. Simmons, 52 N.J. 538, 541-42 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969). Under the res gestae theory, the statements may be admitted as substantive evidence if they are admissible under 803(c)(2). State v. Hill, 121 N.J. 150, 166 (1990).

The statement may also be admitted where it does not qualify under 803(c)(2), to "dispel[] the inference that the victim was silent," and it is not admitted for the truth of the matter stated. State v. Bethune, 121 N.J. 137, 148 (1990). "Fresh complaint in this [] category consists of statements made to some person recognized under usual circumstances as a natural confidant, e.g., a relative, a close friend or a professional counselor." Biunno, supra, comment 2 to N.J.R.E. 803(c)(2) (citing Balles, supra, 47 N.J. at 338-339; see State v. Bicanich, 132 N.J. Super. 393 (App. Div. 1973), aff'd o.b., 66 N.J. 557 (1975); State v. Kozarski, 143 N.J. Super. 12 (App. Div.), certif. denied, 71 N.J. 532 (1976); State v. Hummel, 132 N.J. Super. 412 (App. Div.), certif. denied, 67 N.J. 102 (1975); 4 Wigmore, Evidence, sec. 1135 (Chadbourn rev. 1972)).

Here, R.M.'s statements to Neyor and Downes-Ray fall within the res gestae category and met the criteria of N.J.R.E. 803(c)(2), in that they were excited utterances made "under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." The statements were made to both women shortly after the incident occurred and while R.M. was still in a state of distress over the assault, and both woman were in a confidant relationship with R.M. given their respective positions at Willow Glen.

R.M.'s statements to the sexual assault examining nurse do not qualify under either category of fresh complaint evidence, nor are they admissible under N.J.R.E. 803(c)(4) (statements for purposes of medical diagnosis) or (27) (statements by a child relating to sexual abuse, often referred to as the tender years exception). The nurse's testimony, encompassing the detailed questions and answers prescribed by the sexual assault evaluation protocol, exceeded the scope of fresh complaint testimony, which is limited to the general nature of the complaint. State v. Hill, 121 N.J. 150, 163 (1990); Bethune, supra, 121 N.J. at 146-47 (holding that the "rule is to prove that the alleged victim complained, not to corroborate the victim's allegations); Balles, supra, 47 N.J. at 339. The statements to the nurse do not qualify under the medical diagnosis or treatment exception because they were made for forensic purposes rather than for treatment or diagnosis. In re C.A., 146 N.J. 71, 99 (1996). Indeed, the nurse found no evidence nor did she find anything to treat or diagnose. The statements did not qualify under the tender years exception because R.M. is thirty-two years old and the exception is limited to statements made by a child under twelve. Consequently, the admission of the nurse's testimony was in error. We find that it is harmless error, however, in light of the weight of the evidence and defendant's confession. R. 2:11-3(e)(2).

Defendant argues that even if the statements were properly admitted as fresh complaints, the trial court erred in failing to give the jury a "limiting instruction to prevent it from applying the testimony to bolster [R.M.'s] credibility." We disagree. Under the res gestae theory, the statements may be admitted as substantive evidence on the State's case. Hill, supra, 121 N.J. at 166. The court gave the model charge on credibility and the jury had the benefit of the psychologist's testimony to assess the credibility of R.M.'s prior statements, as well as her in-court testimony.

With respect to defendant's sentencing argument, we agree that the imposition of a seventeen-year term, two years above the presumptive term for a first degree crime, exceeds the sentence that may be imposed by a judge. State v. Natale, 184 N.J. 458 (2005). We, therefore, remand for resentencing consistent with the principles articulated in Natale.

 
The conviction is affirmed and the matter is remanded for amendment of the judgment of conviction.

Willow Glen is a residential facility for disabled individuals.

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

"'Res gestae' means literally things or things happened and therefore, to be admissible as exception to hearsay rule, words spoken, thoughts expressed, and gestures made, must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening . . . . The whole of the transaction under investigation and every part of it . . . is considered as an exception to the hearsay rule." Black's Law Dictionary, (5th ed. 1979).

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A-6578-03T4

RECORD IMPOUNDED

April 5, 2006