STATE OF NEW JERSEY v. W.S

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3891-06T43891-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.S.,

Defendant-Appellant.

________________________________________________________________

 

Argued October 28, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-08-1434.

John G. Koufos argued the cause for appellant (Koufos & Norgaard, attorneys; Mr. Koufos, Veronica R. Norgaard and Laura J. Neville, on the brief).

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel; Jacqueline A. Farrell, Legal Assistant, on the brief).

PER CURIAM

Defendant W.S. appeals from an order entered on January 9, 2007 denying his petition for post-conviction relief (PCR). We affirm.

A judgment of conviction was entered on February 25, 2000, after a jury found defendant guilty 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. The trial court denied the State's motion to sentence defendant to an extended term. After the appropriate mergers, defendant was sentenced to a term of twenty years and community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19.

On direct appeal, we ordered a limited remand for the trial court to rule on defendant's claims of ineffective assistance of trial counsel. State v. W.G.S., No. A-4093-99 (App. Div. July 2, 2001). After that hearing was conducted, the trial court found that trial counsel was not ineffective and on January 3, 2002, we affirmed defendant's conviction. State v. W.G.S., No. A-4093-99 (App. Div. Jan. 3, 2002) (Slip Op. at 4). The Supreme Court denied certification on May 22, 2002. State v. W.G.S., 172 N.J. 359 (2002). Defendant filed his PCR petition on September 26, 2006.

The charges against defendant arose out of allegations by his daughter, P.S., that he sexually abused and assaulted her between September 1991 and December 1992 when she was six years old. The abuse was not reported, however, until 1997, when the child saw a video in school and realized that her father's conduct when she was younger was wrong.

The child reported the incidents in March 1997, after which defendant was advised of his Miranda rights before he was interviewed by Sergeant Peter Weinrich. He waived his Miranda rights a second time before giving a sworn statement. Defendant admitted sexual contact with the child three or four times. He claimed, however, that the contacts were accidents.

When defendant gave his sworn statement to the police, he refused to sign it, although he agreed that it accurately reflected the questions he was asked and the answers he gave. Defendant never denied the truth of his statement.

After defendant's conviction, P.S. made allegations of sexual abuse against two other men. In December 2001, P.S. reported that her mother's boyfriend, D.G., sexually assaulted her over a period of three years from March 1997 to June 2000. D.G. was charged with aggravated sexual assault upon a juvenile of whom he was a guardian, N.J.S.A. 2C:14-2; and endangering the welfare of a child over whom he was a guardian, N.J.S.A. 2C:24-4. When the matter was presented to the Grand Jury, it returned no bill of indictment.

In August 2002, P.S. reported that R.S., a juvenile with whom she worked at a deli, sexually assaulted her at work. Because R.S. was a juvenile, there is no available information as to the outcome of the matter.

In his PCR petition, defendant raised a number of issues which had been litigated and adjudicated on direct appeal. The trial court correctly found that those claims were precluded by Rule 3:22-5. Defendant also argued that he is entitled to a hearing pursuant N.J.R.E. 104 to determine the girl's credibility in light of those allegedly false allegations.

The trial court found that argument lacking merit because:

Defendant asks this court to believe that somehow defendant's trial was constitutionally flawed because of the failure to introduce facts that did not exist at the time of trial. The reports attached to defense counsel's petition note an allegation . . . on December 10, 2001, thirty-two months after the defendant was convicted. A second allegation was made against a different individual . . . on August 28, 2002, forty months after this defendant was convicted.

The court noted that the two cases upon which defendant relied, State v. Carter, 85 N.J. 300 (1981), and State v. Bray, 356 N.J. Super. 485 (App. Div. 2003), related to "newly discovered evidence" of events that occurred prior to the defendants' trials, not alleged facts that arose after the defendants' trials.

In this appeal, defendant argues:

POINT ONE

THE LOWER COURT ERRED IN DETERMINING THAT A COMPLAINING WITNESS' SUBSEQUENT FALSE ACCUSATIONS DO NOT MANDATE A RULE 104 HEARING FOR THE FIRST-ACCUSED.

A. THE TWO OTHER FALSE ALLEGATIONS WARRANT A RULE 104 HEARING WITHIN BRAY-GUENTHER.

B. BRAY-GUENTHER MUST EXTEND RELIEF TO THE FIRST-ACCUSED.

1. Concurrent and subsequent false allegations justify an admissibility hearing in this and other jurisdictions

2. Equal Protection demands that this Court afford the first-accused the same relief as the subsequently-accused

3. Appellant's Confrontation rights, as well as fairness of process, handily trump any concerns regarding judicial economy

POINT TWO

THE LOWER COURT ERRED IN DETERMINING THAT GUENTHER DOES NOT APPLY "RETROACTIVELY" TO THIS MATTER.

Defendant initially argues that State v. Guenther, 181 N.J. 129 (2004), and Bray, supra, 356 N.J. Super. 485, entitle him to an evidentiary hearing on whether his daughter made false allegations of sexual assault against two other individuals. Defendant contends that his daughter's purportedly false accusations go to her credibility in accusing him of sexual assault.

Guenther and Bray were both decided after defendant's appeals were exhausted. In Bray, we held that "prior false allegations of sexual abuse cannot be characterized as 'sexual conduct,' proof of which is barred by the Rape Shield Law [N.J.S.A. 2C:14-7], and that 'proof of the probably false allegations themselves would be admissible to impeach the victim's credibility.'" 356 N.J. Super. at 494 (emphasis added) (quoting State v. Ross, 249 N.J. Super. 246, 252 (App. Div.), certif. denied, State v. V.R., 126 N.J. 389 (1991)). In Bray, we noted that these principles were initially articulated in Ross. Id. at 494. We held in Bray that where a defendant seeks to introduce a victim's prior allegations at trial,

the trial court must conduct an evidentiary hearing pursuant to N.J.R.E. 104 outside the presence of the jury to determine, inter alia, whether the allegations were made, when they were made, the substance of the allegations, and the attending circumstances. Either of two results from such a hearing is possible. The court could conclude that the prior allegations of sexual misconduct were "probably true," in which instance the criteria for admission or use of such evidence are dictated through application of the principles set forth in our Rape Shield Law, N.J.S.A. 2A:14-7, and the case law interpreting same. See [State v.] Budis, [ 125 N.J. 519, 532-40 (1991)] (outlining the procedures and criteria for determining and weighing the probative value of evidence of prior sexual abuse of a child against its prejudicial effect through application of the Rape Shield Law).

On the other hand, the trial court could conclude that the prior allegations were "probably false," in which case the provisions of the Rape Shield Law are inapplicable because those prior allegations, being false, do not constitute "previous sexual conduct." However, a finding of the probable falsity of the allegations is not determinative of admissibility or use of that evidence on cross-examination of the victim. The proffered evidence is still subject to all other applicable evidentiary requirements and considerations, including an analysis of relevancy, probative value, and prejudicial effect of such evidence. See N.J.R.E. 401, 403, 606 and 608.

[356 N.J. Super. at 495-96.]

Our decision in Bray is consistent with our earlier decision in Ross, in which we indicated that the evidentiary hearing "should precede opening statements." Ross, supra, 249 N.J. Super. at 252.

In Guenther, the Supreme Court addressed the issue of allegations that the victim-witness made eight prior false accusations of sexual abuse in the context of N.J.R.E. 608. 181 N.J. at 131. "N.J.R.E. 608 embodies the common law rule that generally forbids admission of specific instances of conduct to attack a witness's character for truthfulness." Id. at 131-32. In examining the history of Rule 608, the Court noted:

Several centuries ago, courts began to prohibit the use of prior instances of conduct to attack the credibility of a witness for two essential reasons: to prevent unfairness to the witness and to avoid confusion of the issues before the jury. [3A] Wigmore on Evidence 979 at 823, 827 (Chadbourn rev. 1970). Those reasons remain the present justification for the exclusion of specific conduct. Id. at 823. The use of prior instances of misconduct to impeach credibility was considered to be unfair to the witness because "it would be practically impossible for the witness to have ready at the trial competent persons who would demonstrate the falsity of the allegations that might range over the whole scope of his life." Id. at 826. Thus, the rule was designed to prevent unfair foraging into the witness's past, as well as unfair surprise.

The second rationale for the bar on specific conduct evidence was the concern that such wide ranging collateral attacks on the general credibility of a witness would cause confusion of the true issues in the case. Ibid.

[Id. at 141-42.]

The Court carved out "a narrow exception to the common law rule embodied in N.J.R.E. 608 for the purpose of permitting the jury to consider relevant evidence - in clearly defined circumstances - that may affect its estimation of the credibility of a key witness." Id. at 159. The Court affirmed our decision in Guenther and implicitly in Bray and Ross. The rule, therefore, is that evidence of prior false allegations of sexual abuse by the victim-witness may be admissible in a criminal trial subject to a Rule 104 hearing.

Here, a summary chronology is helpful in analyzing this issue. In March 1997, P.S. first reported defendant's sexual abuse to the police. P.S. was eleven years old at the time and alleged that the abuse occurred between September 1991 and December 1992. Defendant was indicted in July 1997, tried in April 1999 and sentenced on February 25, 2000.

In December 2001, P.S. reported that D.G. had sexually assaulted her over a period of three years from March 1997 to June 2000.

In August 2002, P.S. reported that R.S. had sexually assaulted her that month.

Defendant's PCR petition was filed in September 2006.

In reviewing this chronology, it is apparent that the allegations against both D.G. and R.S. were made after defendant was tried and sentenced. Consequently, the question before us is whether subsequent allegedly false accusations come within the Guenther and Bray/Ross requirement that an evidentiary hearing be held pursuant to N.J.R.E. 104 to determine whether the purportedly false allegations should be admissible to impeach the victim-witness's credibility.

Defendant argues that Bray and Guenther must be extended to the "first accused defendant" under the equal protection clause of the United States Constitution. Defendant relies upon an unpublished decision rendered in 2007 in support of his position that Guenther and Bray should apply to allegations made a short time after the accusation against defendant.

In the published opinion, State v. A.O., 397 N.J. Super. 8 (App. Div. 2007), we reversed the defendant's conviction for first degree aggravated sexual assault on a child and remanded for a new trial because the trial court precluded defendant from presenting evidence that the victim-witness "had accused defendant of molesting her and then recanted, later accused another man of molesting her and then recanted that accusation." Id. at 11. Under those circumstances, we concluded "that prior to the retrial, the judge must conduct further proceedings to determine whether defendant is entitled to question witnesses about a subsequent incident in which [the victim-witness] accused another man of molesting her and then recanted that accusation" in accordance with Guenther. Id. at 27-28.

We note initially that the factual predicate for A.O. differs significantly from the facts in this case. Here, the victim-witness never recanted her testimony against defendant, D.G. or R.S. With respect to the accusations against D.G., the only evidence we have is that the Grand Jury declined to indict him, but we do not have the Grand Jury transcript to determine what evidence was presented, what questions the Grand Jury may have asked or why they declined to indict D.G. With respect to R.S., we do not know the outcome because the juvenile record is sealed.

Defendant cites a number of cases from other jurisdictions in support of his position that he is entitled at least to a Rule 104 hearing on the admissibility of the subsequent allegations. We do not find those cases relevant, however. In State v. Botelho, 753 A.2d 343 (R.I. 2000), the victim-witness had made prior complaints of excessive discipline against her father and her mother's boyfriend. The Rhode Island Supreme Court found that those complaints were "fundamentally different from a complaint of sexual molestation." Id. at 347.

In State v. West, 24 P.3d 648 (Haw. 2001), the Supreme Court of Hawaii held that if a defendant in a sexual assault case proposes to cross-examine a victim-witness about a prior false sexual assault or sexual abuse allegations, he must file a written notice of intent and introduce corroborative evidence. Id. at 458.

In Commonwealth v. Nichols, 639 N.E.2d 1088, 1089 (Mass. App. Ct. 2001), an adolescent girl made allegations against her step-father after a violent argument with her parents. The girl told her cousin that the quarrel occurred when her mother observed her involved in sexual misconduct with a boy. Ibid. The girl told her cousin that her step-father had been molesting her. Ibid. After those allegations were made, the girl was removed from the home and placed with her cousin's family where she experienced greater freedom until the family became more strict with her. Id. at 333-34. At that point, she complained that her uncle "had been playing 'sexual games' with her." Id. at 334. The girl recanted those allegations within a few days after she was placed in a foster home and indicated she wanted to return to her cousin's home. Ibid. The girl told the social worker that "she had lied but did not know why, suggesting the charges against [the friend's father] were flashbacks of what she had experienced with [her step-father] or that she had dreamed it because she was testifying against [her step-father]." Ibid. The Appeals Court of Massachusetts held,

In the instant case, the independent evidence of the falsity of the collateral allegation is clear, even stark. The complaining party has admitted making false allegations, and the evidence is available from the [Child Protective Services] records. To that degree, there is a solid basis for cross-examining the complaining witness about her false allegations against the uncle.

[Id. at 335.]

In State v. Crabtree, 296 N.W. 79 (Wis. 1941), where the defendant was found guilty of carnal knowledge and abuse of a sixteen year old, which he denied, the Supreme Court of Wisconsin determined that where there are elements of unreliability in the testimony of the victim-witness, "there should be corroboration by other evidence as to the principal facts relied on to constitute the crime." Id. at 21-22.

In each of these cases from other jurisdictions, additional factors weighed in the courts' allowance of cross-examination of the complaining witness with respect to other allegations. Here, P.S. has never recanted her allegations against defendant, D.G. or R.S. There is no evidence to support defendant's assertion that the allegations against these individuals were false. Under these circumstances, we find no basis for remanding the matter for a Rule 104 hearing on the truth or falsity of the child's subsequent allegations against two other individuals. In short, there is no reason to lift the protections of the rape shield law here with respect to these allegations.

 
We have carefully considered the record in light of defendant's arguments and the applicable law and we are satisfied that there is insufficient merit to defendant's remaining arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

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A-3891-06T4

RECORD IMPOUNDED

January 21, 2009