STATE OF NEW JERSEY v. R.B

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5113-05T15113-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.B.,

Defendant-Appellant.

____________________________________

 

Submitted April 15, 2008 - Decided

Before Judges Coburn and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

04-05-00401.

Garces & Grabler, attorneys for appellant

(John D. Caruso and Ana Maria Tent, on the

brief).

Anne Milgram, Attorney General, attorney for

respondent (Leslie-Ann M. Justus, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

In this child sexual abuse case, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. After merging the conviction for second-degree sexual assault with the first-degree aggravated sexual assault conviction, the court sentenced defendant to a term of eighteen years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year term of imprisonment for the second-degree endangering the welfare of a child conviction. The court also imposed the mandatory fines and penalties, and ordered defendant to submit to all statutorily required registration procedures.

Defendant now appeals raising the following arguments.

POINT ONE

THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE.

POINT TWO

AGGREGATE ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN THE SPECIFIC CONTEXT OF THIS CHILD SEXUAL ASSAULT CASE RESTING UPON THE CREDIBILITY OF THE CHILD.

1. FAILING TO DISCLOSE THAT THE CHILD WAS BEING PUNISHED AND FORCED TO SIT IN A CORNER AT THE VERY TIME SHE FIRST CAME FORWARD WITH THE ACCUSATION CONSTITUTED A BRADY VIOLATION AND MANDATES REVERSAL.

2. THE STATE'S FAILURE TO DISCLOSE TAINTED PRE-TRIAL PROCEEDINGS AND RESULTED IN INAPPROPRIATE RULINGS AS TO FRESH COMPLAINT AND TENDER YEARS EVIDENCE.

3. NO LIMITING INSTRUCTIONS CONCERNING PRIOR AND CONTEMPORANEOUS BAD ACTS EVIDENCE CONCERNING THE DEFENDANT'S INCESTUOUS RELATIONSHIP WITH HIS OWN NIECE AND THE MOTHER OF THE CHILD HE WAS ACCUSED OF MOLESTING.

4. THE STATE IMPROPERLY BOLSTERED THE CHILD'S CREDIBILITY THROUGH EXPERT TESTIMONY.

5. THE TRIAL COURT IMPROPERLY QUESTIONED DEFENSE WITNESSES IN THE PRESENCE OF THE JURY IN THE DELICATE CONTEXT OF THIS CHILD SEXUAL ASSAULT CASE.

6. THE ADMISSION OF THE VIDEOTAPED STATEMENT IMPERMISSIBLY EXPANDED THE BASES OF LIABILITY TO INCLUDE DIGITAL PENETRATON WHEN THE CHILD FAILED TO DESCRIBE DIGITAL PENETRATON DURING HER TESTIMONY BEFORE THE JURY.

7. THE COURT'S JURY INSTRUCTIONS IMPROPERLY EXPANDED THE BASES OF LIABILITY FOR AGGRAVATED SEXUAL ASSAULT.

We are satisfied that the arguments raised by defendant in Argument Point One and in all but one subsection of Point Two, are sufficiently without merit as not to warrant discussion in a written opinion. R. 2:11-3(e)(2). The argument raised in Point Two, subsection 1, although ultimately without merit, warrants a detailed analysis, which we will expand upon here.

I

The events giving rise to this case occurred on October 21, 2003. At that time, defendant lived with his girlfriend, S.G., and her teenage son D.S. During the same time period, defendant was romantically involved with his adult niece, T.S. (the daughter of defendant's sister). In fact, defendant fathered one of T.S.'s four children. N.H., the alleged victim here, is one of T.S.'s children who is not defendant's biological child. N.H. was eight years old at the time of the alleged sexual assault; defendant was forty.

On the date at issue, defendant drove T.S. to work, then picked up two of her children: N.H. and her older brother, D.S. (who was thirteen years old at the time). Defendant brought the children to his house so his girlfriend S.G. could look after them while the children's mother was at work.

What occurred next was disputed at trial. Through testimonial evidence, the State maintained that defendant and N.H. were alone in the apartment for a short period of time in the late afternoon. During this time, N.H. fell asleep while watching television in defendant's bedroom. When she woke, defendant was on top of her. In response to the prosecutor's questions, N.H. gave the following account of what transpired next.

[PROSECUTOR]: What did [defendant] do?

[N.H.]: He put his penis inside my cherry.

[PROSECUTOR]: When that happened were your clothes on or off?

[N.H.]: Off. Just my pants was off.

[PROSECUTOR]: Who took your pants off?

[N.H.]: [responded by referring to defendant using his first name].

. . . .

[PROSECUTOR]: And what happened after your pants were down?

[N.H.]: He, he had his penis inside my cherry.

[PROSECUTOR]: Did [defendant] do anything else?

[N.H.]: He was moving back and forth and that's when, when, when the sperm had came out he stopped but I told him to stop and he didn't.

. . . .

[PROSECUTOR]: And you said that you saw sperm? How did you know it was sperm?

[N.H.]: Cause after he was done he said don't worry it's just sperm.

[PROSECUTOR]: Did you actually see the sperm?

[N.H.]: Yes.

[PROSECUTOR]: Where did the sperm go?

[N.H.]: On my legs.

. . . .

[PROSECUTOR]: Did you see [defendant's] penis?

[N.H.]: No.

[PROSECUTOR]: You saw the sperm?

[N.H.]: Yes.

[PROSECUTOR]: And [did defendant] touch you with anything other than his penis?

[N.H.]: No.

According to N.H., immediately after the assault, defendant told her not to tell anyone about what had happened. Defendant then told N.H. to go to the bathroom "[t]o wipe [her]self down." While in the bathroom, N.H. noticed blood in the toilet which may have come from her vaginal area.

N.H. did not report the October 21 alleged sexual assault to anyone until November 2, 2003, eleven days later. On that day, N.H.'s aunt A.B. hosted a "sleepover" for her children and their cousins: including T.S.'s children, N.H. and her older brother D.S. A.B. testified that she and her mother, K.S. (defendant's sister), were suspicious of defendant's relationship with N.H. Specifically, A.B. testified: "I noticed that [defendant] would give [N.H.] money and didn't give to the other kids; and take her out to the store and stuff and didn't do the same thing for the other kids."

Acting on her suspicions, A.B. asked her ten-year-old daughter, B., and N.H. whether either girl had "ever been touched where she felt uncomfortable." Both girls answered "no," and left the room. According to A.B., "not even seconds" later, N.H. returned to the room alone and told A.B. that defendant had sexually assaulted her on October 21.

A.B. immediately took N.H. to defendant's sister (and N.H.'s grandmother) K.S. N.H. repeated her accusation against defendant to her grandmother. The two women then brought N.H. back to A.B.'s house where K.S. called N.H.'s mother T.S. and informed her of the assault. That same evening, K.S. and T.S. brought the child to Trinitas Hospital in Elizabeth.

On a referral from the hospital, N.H. was taken to Dorothy B. Hersh Regional Child Protection Center in New Brunswick on November 7, 2003, where she was examined by Dr. Gladibel Medina. Based on this examination, Dr. Medina concluded that N.H. did not show any signs of: (1) having contracted a sexually transmitted disease; or (2) having experienced a traumatic injury to her genitals.

Three days later, A.B. brought N.H. to the Union County Prosecutor's Office's Child Advocacy Center where Sergeant Joseph Genna of the Union County Prosecutor's Child Abuse Unit performed a twenty-eight minute videotaped interview of N.H. Without objection, the videotaped interview was entered into evidence at trial and played for the jury.

II

The State presented five witnesses in its case-in-chief: (1) defendant's niece A.B.; (2) N.H.; (3) N.H.'s brother D.S.; (4) Dr. Linda Jane Shaw, the State's medical expert; and (5) Sergeant Joseph Genna of the Union County Prosecutor's Child Abuse Unit. As is the case with many child sexual abuse cases, the alleged sexual acts took place outside the presence of third-party witnesses. Thus, the State's case was primarily dependent on the credibility of the alleged victim.

Defendant's defense strategy was predicated on the straight forward notion that N.H. was simply not telling the truth. Thus, the success of this strategy was obviously dependent on discrediting N.H.'s testimony. Toward that end, defendant presented testimonial evidence showing that he was never left alone with the child in the apartment on October 21, 2003.

The next part of the defense strategy consisted of presenting to the jury a plausible explanation or motive for N.H. to deliberately make this serious, but supposedly false accusation. On this point, defense counsel argued that defendant's niece, A.B., had pressured N.H. into wrongly accusing defendant of sexual assault. According to the defense, A.B. disliked defendant because of his incestuous relationship with A.B.'s sister, T.S (N.H.'s mother).

Framed thusly, A.B. explained to the jury the circumstances leading to N.H.'s statements accusing defendant of having sexually assaulted her. Through cross-examination, A.B. admitted that she disliked defendant because of his incestuous relationship with her sister T.S. Defense counsel also offered jealousy as an additional reason for A.B.'s negative influence over N.H. A.B. testified that she had helped defendant obtain a job at "Coach U.S.A," where she also worked, and had, on occasion, gone to night clubs with him and mutual friends or co-workers.

Finally, A.B. testified that she was aware of an incident in which N.H. had observed a pornographic movie that A.B.'s son and N.H.'s brother were watching. To her knowledge, N.H. entered the room and observed the pornography. However, A.B. denied having coerced N.H. or having instructed her to accuse defendant of sexual assault.

For our purposes, the next significant event occurred during N.H.'s testimony. According to N.H., on October 21, 2003, she, her brother, her cousin and defendant were together at defendant's house. At some point, the boys left, leaving her alone with defendant in the apartment. As noted earlier, N.H. testified that she fell asleep while watching television in defendant's bedroom. When she woke, she found defendant on top of her, having removed both his and her pants. Defendant then "put his penis inside [her] cherry," and began "moving back and forth" and "going up and down." Defendant withdrew from N.H. and began masturbating, ejaculating onto her legs.

On direct examination, N.H. said that defendant "did not touch [her] with anything other than his penis." She specifically noted that defendant placed his penis inside her vagina, as opposed to rubbing the surface. Using anatomically correct dolls provided by the prosecutor, N.H. demonstrated for the jury what she claimed defendant did to her.

N.H. also confirmed that it was during the sleepover of November 2, 2003, that she first told someone about what had allegedly occurred between her and defendant. On this point, the prosecutor elicited the following testimony:

[PROSECUTOR]: Why did you tell your Aunt [A.B.] about this?

[N.H.]: So I could get it off my chest.

[PROSECUTOR]: Why didn't you tell your mom what had happened?

[N.H.]: Cause I, cause I think she wouldn't believe me.

In response to the prosecutor's inquiry about whether she had ever seen a pornographic movie, N.H. testified that she had once walked into her cousin's room and found him and her brother watching a pornographic movie. Although she did not see any of the movie, she knew it was pornography because she could hear "nasty sounds." N.H. also saw her cousin and brother with their hands in their pants. At this point, her aunt A.B. entered the room and turned off the pornography. According to N.H., neither her aunt A.B. nor her grandmother K.S. ever told her to make the accusations against defendant.

The following exchange occurred while defense counsel was in the process of cross-examining N.H. about the November 2, 2003 sleepover:

[DEFENSE COUNSEL]: . . . Now on that day did [A.B.] called [sic] you into the room. Right?

[N.H.]: Yes.

[DEFENSE COUNSEL]: Did she call -- I'm sorry. Did she call anyone else into the room?

[N.H.]: She didn't call me in the room. I got in trouble.

[DEFENSE COUNSEL]: What did you get in trouble for?

[N.H.]: Cause I said my cousin father --

[PROSECUTOR]: Objection, your Honor. If we can go to side bar for a moment?

(Side bar.)

[PROSECUTOR]: I believe the answer that's gonna [sic] be said here has to do with someone's father being in jail. So I want to put counsel on notice as to what we're -- what area we're going into.

THE COURT: Okay. Is this a way that counsel can phrase the question: She said she was in trouble, and she was about to say because I said or I told.

[PROSECUTOR]: It's also hearsay what she said at that time.

[DEFENSE COUNSEL]: But if --

THE COURT: What did she get in trouble for?

[DEFENSE COUNSEL]: That's exactly what did she get in trouble for? That's my question.

[PROSECUTOR]: My understanding she was saying someone's father was in jail I believe or I believe I once heard was taking it up the butt or something with that; has sexual connotations. It's hearsay.

[DEFENSE COUNSEL]: That's part of it. Listen, that's got to be some type of tender years if she's going to say that. That means she had clear knowledge of some type of sexual act. She's prone to using these terms.

THE COURT: Well, no, you know, taking it up the butt is not what happened in this case and there's got to be sufficient specificity and, you know, similarity of circumstances in order to get into it and get past the Rape Shield issue.

[DEFENSE COUNSEL]: If she's claiming that she doesn't have any -- she's only a 12 [sic] year old with no knowledge, then she's saying take it up the butt that's relevant to the case.

[(Emphasis added.)]

At this point, the trial judge excused the jury so as to voir dire N.H. on the record as to what she was going to say with respect to being in trouble November 2, 2003. The following took place outside the presence of the jury.

THE COURT: [N.H., defense counsel] asked you if you got called into the room by your Aunt [A.B.] and you said no, I got in trouble. And you were about to say why you got in trouble. Why did you get in trouble?

[N.H.]: Cause I said my cousin's father is in jail gettin' duked in the butt.

THE COURT: Your cousin's father is in jail and he's gettin' what?

[N.H.]: Duked in the butt.

THE COURT: Duked in the butt. And did you know what that meant? [N.H.], did you know what that meant?

[N.H.]: (Witness nods her head in the affirmative.)

THE COURT: You're shaking your head yes. And how did you -- who did you hear say that? How did you know that?

[N.H.]: Cause my brother said it.

THE COURT: Your brother said it?

[N.H.]: Yes.

THE COURT: But you knew -- did you know what that meant?

[N.H.]: Yes.

With the jury again present, N.H. continued her testimony, indicating that her aunt A.B. called her into the room because she had "said something naughty." A.B. punished her by requiring the child to stand in a corner of A.B.'s bedroom until N.H. said she was sorry. N.H. did not recall exactly how long she was required to stand in the corner, but testified that it was "[n]ot a long time." After she apologized for her comment, A.B. told N.H. to sit on the bed. It was at this point in time that A.B. first asked N.H. whether anyone had ever touched her "in the wrong way."

III

Defendant first alleged that the State failed to disclose the circumstances surrounding N.H.'s initial complaint to her aunt A.B. in the context of a motion for a new trial. Represented by a different attorney in this motion, defendant submitted a certification from his trial counsel claiming that the Assistant Prosecutor who represented the State failed to disclose that N.H. had made these allegations against defendant to A.B. potentially to avoid further punishment from her.

Thus, defendant argues on appeal that:

the prosecution's failure to disclose the 'punishment revelation' prior to trial substantially affected the outcome of the proceedings. Defense counsel selected a defense strategy detrimentally relying upon the information he possessed prior to trial provided to him by the State. Unarmed with the knowledge that the allegations were made on the heels of being disciplined, trial counsel had no choice but to proceed on the only case theory available a suicidal incestual relationship revenge theory. Had defense counsel known of the true circumstances surrounding the allegations, a different, safer and less-offensive case theory could have been propounded.

The record does not support defendant's appellate argument. A review of defense counsel's summation to the jury reveals that he squarely raised the manner of A.B.'s role in questioning N.H. as an issue in the case.

Now, let's talk about testimony. You heard testimony from [N.H.] . . . you heard testimony from [A.B.], severely conflicting testimony; extraordinarily conflicting testimony. Now let's talk about the date in which [N.H.] told [A.B.] about the alleged incident.

[N.H.] says, and you heard her, that she, because she said naughty words came into the room, was made to stand in the corner. And then she began to tell [A.B.] what happened. [A.B.] says that she called [N.H.] in the room and her daughter in the room and asked them if anyone touched them.

Then you heard from [N.H.'s brother]. [He] says that [A.B.] called all the children in the room. And then the children left. [N.H.] stayed.

Now let's talk about what happened after that. [N.H.] says the alleged incident occurs. What [A.B.] does is quite telling. [A.B.] does not call the police. [A.B.] doesn't call [N.H.'s] mother. What she does is she calls [N.H.'s] brother in the room. And what she does, and you heard the testimony, what she does is say well [N.H.], tell your brother what happened. Tell your brother what [defendant] did. [The brother] then, after hearing what allegedly happens to his sister, hits the wall; angry. How manipulative.

[(Emphasis added.)]

It is now well-settled that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). "If evidence favorable to the defendant has been suppressed by the State and that evidence is likely to have affected the verdict, a conviction cannot stand." State v. Reddish, 181 N.J. 553, 639-40 (2004). See also State v. Marshall, 148 N.J. 89, 156 (1997) (adopting federal standard that evidence is "material" "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different") (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 484 (1985)).

Here, reversal of defendant's conviction is not warranted, even if defense counsel discovered the complete scope of A.B.'s interrogation of N.H. only after the child spoke about it on the witness stand. The fact remains that at the time this issue arose during the trial, defense counsel was given a complete opportunity to cross-examine N.H. on it. Counsel also argued this issue's significance to the jury at summation. In short, defendant did not suffer a constitutionally cognizable injury based on the manner in which this information came to light. Although the State had a clear obligation to disclose this information to defense counsel prior to the trial, the circumstances here do not warrant any judicial intervention.

Affirmed.

(continued)

(continued)

16

A-5113-05T1

RECORD IMPOUNDED

July 14, 2008