STATE OF NEW JERSEY v. K.E.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4422-07T44422-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.E.,

Defendant-Appellant.

__________________________________________

 

Argued October 5, 2009 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-00543.

Jeffrey C. Zucker argued the cause for appellant (Zucker, Steinberg, Sonstein & Wixted, P.A., attorneys; Mr. Zucker, of counsel; Jack L. Weinberg, on the brief).

Mary E. McAnally, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. McAnally, of counsel and on the brief).

PER CURIAM

Defendant K.E. appeals from his conviction by a jury of three counts of sexual assault, N.J.S.A. 2C:14-2(c)(1) (second- degree); one count of attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c)(1) (second-degree); and two counts of harassment N.J.S.A. 2C:33-4 (disorderly persons offenses) as the lesser included offense of terroristic threats. Defendant also appeals his sentence. He received a five-year sentence of imprisonment on each of the sexual assault counts and the attempted sexual assault count, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The harassment counts were merged with the criminal assault counts. The sentences on counts one and two were consecutive, and the balance of the counts were concurrent with count two, so that defendant received an aggregate sentence of ten years, subject to NERA.

We reverse the conviction due to the introduction into evidence of certain highly prejudicial and inadmissible evidence.

I

The conviction arose out of defendant's sexual conduct with E.A., his wife, who was living with him at the time of the offenses. The parties were married in Egypt on September 13, 2005, having met for the first time only a month earlier. At the time of her marriage, E.A. was twenty-seven years old, a university graduate living with her parents, and working for a computer company in Egypt. She had been seeking admission into the United States prior to that time. Defendant, thirty-eight years old at the time of the marriage, was also a native of Egypt, but he had become an American citizen and was living in New Jersey. He had earned a bachelor's degree in Egypt and a bachelor's degree in the United States. In August 2005, he traveled to Egypt to seek a wife. He had been placed in touch with E.A. and her family through his sister. After their marriage in Egypt, E.A. and defendant came to the United States to live in defendant's apartment in New Jersey. E.A.'s married sister also lived in New Jersey with her spouse and children.

E.A. testified that she and defendant had normal sexual relations until January 2006, about four months after their marriage. At this time, defendant became controlling, bossy and demanding, and would threaten to put her out on the street and report her to the police. She also complained to others because he had not enrolled her in driving lessons and English lessons as he had promised. She asserted that on two occasions in January 2006, defendant sexually assaulted her, one time vaginally and the second time anally. After the anal assault, she contended that defendant refused her request to go to a doctor, saying that she would be okay and did not need a doctor. While she did not advise her father of these incidents, she did complain to him by telephone about defendant's conduct in a general way. As a result, her father spoke to defendant, and E.A. went to live with her sister for a couple of weeks. In addition, a meeting was held between the parties, their families and the Imam of their mosque regarding the marital situation.

E.A. reported that defendant's conduct initially improved upon her return to their apartment. However, in February, after the parties had consensual sex and she had showered, she testified that defendant approached her again and forcibly had vaginal sex with her. In another incident in early March, E.A. testified that defendant demanded that she perform oral sex on him, which she did. When it was not done to his satisfaction, he pushed her, causing her head to strike the faucet, and she lost consciousness.

According to E.A., on March 10, 2006, defendant attempted to force anal sex upon her and when she ran away and screamed, a neighbor came to the door and then called the police. When the police arrived, defendant told them that his wife had screamed because of bad news she had received from home. The police spoke directly to E.A., and she told them that she was all right.

E.A. testified that on April 6, 2006, when she told defendant in a phone conversation that he had a weak personality, he became angry and told her three times that he divorced her. He then threatened that if he found her in the apartment when he returned home, he would hurt her. When E.A.'s sister went to the apartment and saw E.A. upset, she arranged to have E.A. taken by ambulance to the hospital. At this time, E.A. told her sister about the sexual assaults. This was the first time she had reported them to anyone. She explained that she did not report them earlier because they were something that should be kept between spouses and would be shameful to talk about with others. On April 24, 2006, E.A. reported the sexual assaults to the authorities. The parties received an Egyptian divorce on May 7, 2006. Despite her complaints that the anal assault continued to effect her bowel movements, E.A. never sought medical treatment for the problem.

Defendant testified and presented a much different version of events. He denied having any forcible sexual relations with E.A. He further denied ever having anal sex with her and explained that such sex was prohibited by his religion. He acknowledged that he had promised E.A. English and driving lessons, and that his working hours and financial constraints prevented him from providing those classes to her. He stated that in December they began arguing about these issues, as well as about E.A.'s failure to wear a hijab which she had agreed to do at the beginning of the marriage.

With respect to the March 10, 2006 incident, he explained that E.A. had been rude to his sister that day. After his sister and her family left, he complained to E.A. about her behavior, and E.A. started screaming at him. He confirmed that when the neighbor and police came to the door he said that E.A. had received some bad information from home, which he acknowledged was not true.

Defendant also expressed his belief that E.A. married him for financial reasons. He set forth his understanding that by proving domestic abuse she would be able to obtain a permanent green card and stay in the United States even though their marriage had not lasted the requisite two years. He explained that this information was obtainable from the U.S. Citizenship and Immigration Services' website. On cross-examination, the prosecutor confronted him with information from the website that while confirming this statement, also indicated that the spouse of an American citizen was eligible for permanent residency if the marriage was in good faith and was terminated by divorce.

Defendant's sister's testimony confirmed that E.A. complained during her marriage that defendant was not providing her with English lessons or helping her obtain a driver's license, and that defendant wanted his dinner ready when he came home from work. E.A. told her that on March 10, 2006, she had an argument with defendant and flipped the table over and screamed, causing the neighbor and then the police to arrive.

The upstairs neighbor testified that he heard yelling, crying, and screaming on March 10, 2006. He first went to defendant's apartment and spoke to defendant. He then called the police because defendant's explanation and conduct seemed suspicious. He had not heard this kind of noise in the apartment before then.

Catherine E. Warrick, an assistant professor of political science at Villanova University, testified for the State as an expert in Egyptian culture, comparative law, and gender issues as it relates to the Middle East. She provided testimony on the role of virginity in Egyptian culture, the severe social condemnation of a woman who experiences sexual intercourse outside of marriage, the effect of a woman's sexual misconduct on her social status and safety and that of her family, and the existence of honor killings. She explained that very few women in Egypt report sexual assaults because of the dishonor and shame to her and her family. A sexual assault by a husband is also not likely to be reported because it is considered shameful to discuss things that happened within the marital relationship in public. Under Egyptian law, forced sexual penetration by a husband against his wife is not considered a criminal sexual assault, although a severe assault could be prosecuted as a battery. Anal sex is considered shameful. Divorced women are at a social disadvantage in Egyptian society, and if the divorce resulted from abuse or marital discord, the woman might find it difficult to remarry. Warrick also described the differences in treatment of sexual assault victims in Egypt as contrasted to the United States, explaining the absence in Egypt of the organized support system available to victims here.

June Treston, a nurse practitioner in the Emergency Department at Cooper Hospital University Medical Center, testified for the State. The parties agreed that she did not testify as an expert witness but as a fact witness. She testified that she had substantial domestic violence training and lectured to nursing students on domestic violence. In the course of her work she conducted examinations of sexual assault victims, otherwise known as SANE exams.

The Prosecutor's Office had sent E.A. for an examination by Treston on September 26, 2006, over six months after the last alleged sexual assault. Treston testified that E.A. first complained about pain in her knee and then told Treston about the sexual assaults. In her testimony, Treston repeated the statements E.A. made to her about the sexual assaults and other behavior by defendant during the marriage. Notably, Treston's testimony alleged more sexual assaults than reported by E.A in her testimony. Treston said that E.A. told her that she had been vaginally and anally assaulted multiple times. Treston stated that E.A. told her "she was not allowed to seek medical attention, that she was told that - he had told her church group lies about her so she was embarrassed to seek support from, I think a mosque that she went to that I had documented, so there was more than just the physical and verbal altercation abuse." However, E.A. did not testify about defendant's statements at the mosque. Treston opined that the abuse started before E.A. had come to the United States in November 2005, although E.A. testified that the problems began in January 2006.

Treston also testified that E.A. was "extremely distraught" and went on to state: "you could see that, in my professional opinion, after doing this for twenty years, she was just battered, beaten down, tearful. There was poor eye contact. She just - you know, to me, it just appeared that she was almost like, you know, a broken woman."

Treston's physical exam of E.A. revealed no evidence of coercive sex, but she explained that due to the passage of time, she did not expect to find any. She was not qualified to do the type of exam that would reveal the source of E.A.'s complaints with respect to her bowel movements.

Treston also gave additional expert opinion as follows:

Q. . . . The complaint that [E.A.] had blood in her anus and pain upon contact with the anus and issues with the bowel movements, in your training and experience in dealing with sexual assault examinations, is that consistent or inconsistent with contact to her anus?

A. . . . in my opinion, those are complaints that would be tied to multiple anal assaults. So, in other words, we often see in patients who have been - had, you know, anal sex against their will over multiple periods of time that eventually they will develop problems such as, you know, having difficulty controlling their bowels and bleeding and chronic pain.

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT FAILED ITS GATEKEEPING RESPONSIBILITIES IN PERMITTING DR. WARRICK TO TESTIFY AS A CULTURAL EXPERT. DR. WARRICK'S TESTIMONY DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND VIOLATED HIS SIXTH AMENDMENT CONFRONTATION CLAUSE RIGHTS. [Not raised below.]

POINT II

THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE STATE INTRODUCED INADMISSIBLE HEARSAY TESTIMONY THROUGH THE TESTIMONY OF NURSE PRACTITIONER JUNE TRESTON. THE COURT ERRED WHEN IT PERMITTED MS. TRESTON TO OFFER EXPERT OPINION TESTIMONY WITHOUT QUALIFYING HER AS AN EXPERT WITNESS. [Partially raised below.]

POINT III

VARIOUS ACTIONS AND BEHAVIOR DURING THE COURSE OF THE TRIAL, EITHER INDIVIDUALLY OR IN THEIR AGGREGATE, DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN VIOLATION OF HIS FEDERAL

AND STATE CONSTITUTIONAL RIGHTS. [Partially

raised below.]

POINT IV

THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL. THIS CLAIM IS SELF-EVIDENT IN THE RECORD AND THEREFORE COGNIZABLE ON DIRECT APPEAL.

POINT V

THE COURT IMPOSED AN EXCESSSIVE SENTENCE THAT DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

II

We first address defendant's contention that the testimony of Treston contained inadmissible, prejudicial evidence. After a careful review of the record, we agree, concluding that Treston's testimony was replete with inadmissible hearsay statements, expert testimony, and other-crimes evidence which unfairly prejudiced defendant.

In her testimony, Treston recounted numerous complaints that E.A. made against defendant, describing his emotional and physical abuse. The statements that E.A. made to Treston were hearsay. See N.J.R.E. 801(c) (defining hearsay 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"). In order for a hearsay statement to be admissible, it must fall within one of the multiple exceptions to the hearsay rule. N.J.R.E. 802. No exception applies here.

We note that N.J.R.E. 803(c)(4) allows the admission into evidence of hearsay statements made for purposes of medical diagnosis or treatment regarding the cause of the condition "to the extent that the statements are reasonably pertinent to diagnosis or treatment." N.J.R.E. 803(c)(4). However, this exception does not apply to the medical history where the examination was conducted for forensic purposes rather than treatment. State v. Pillar, 359 N.J. Super. 249, 289 (App. Div.), certif. denied, 177 N.J. 572 (2003). E.A. was referred to Treston by the Prosecutor's Office. Further, even if this exception applied, defendant's identity would not be pertinent to the treatment and diagnosis. See Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2009) (stating that "[n]o reported New Jersey case has yet determined that the identity of an assailant is relevant to the diagnosis and treatment of the resulting injuries").

Treston was allowed to provide expert opinion testimony harmful to the defendant, although she was not qualified by the court as an expert witness. Treston expressed her opinion, based on her observations of E.A. and her years of experience, that E.A. had been "battered [and] beaten down." She expressed her opinion that E.A.'s complaints about blood and pain in her anus and problems with her bowel movements related to multiple anal assaults. She opined that the abuse began before E.A. came to the United States.

Treston was not proffered by the State as an expert witness, she was not qualified by the court as an expert witness, and the court did not give the jury the standard charge on expert witness testimony.

Treston's testimony was not lay testimony but rather provided expert opinion. While lay witnesses may provide lay opinion testimony under certain circumstances, N.J.R.E. 701, the lay opinion must be based on common knowledge and observation. State v. Bealor, 187 N.J. 574, 586 (2006). Expert opinion, on the other hand, is allowed when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" provided the witness is "qualified as an expert by knowledge, skill, experience, training or education." N.J.R.E. 702. The content of Treston's opinion testimony was not based on a lay person's common knowledge and observation, but rather rested on her training and experience with victims of domestic violence and sexual assaults. Indeed, Treston by her own testimony, indicated that she was relying on her years of training and experience when reaching her opinion. Her opinion testimony was thus expert opinion.

However, the mistaken allowance of expert opinion does not necessarily require reversal of a conviction. In State v. Kittrell, 279 N.J. Super. 225 (App. Div. 1995), a police officer testified that beepers are used by drug traffickers. Id. at 235. Although he had not been formally offered as an expert witness, we concluded that the error was harmless because his testimony clearly established that his specialized knowledge, based on experience, training and education, laid a foundation for the testimony. Id. at 236. Similarly, here the record sets forth Treston's substantial training and experience in dealing with victims of domestic violence and sexual assaults. Nonetheless, this topic and her opinion testimony were more complex than the simple factual information provided by the officer in Kittrell that, based on his training and experience, beepers are used by drug traffickers. Id. at 235.

In her expert opinion and at other points in her testimony, Treston expressed her opinion that E.A. had sustained multiple anal assaults. This testimony was contrary to E.A.'s testimony that there had been only one such assault. Treston also testified that in her opinion the abuse began before E.A. entered the United States, although E.A. testified that the abuse started after that. In addition to the hearsay and expert testimony problems noted above, this testimony also constituted inadmissible other-crimes evidence under N.J.R.E. 404(b).

Other-crimes evidence is recognized as having the "unique tendency to turn a jury against the defendant." State v. Reddish, 181 N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289, 302 (1989)). "The 'inflammatory characteristic of other-crime evidence . . . mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.'" State v. Cofield, 127 N.J. 328, 334 (1992) (quoting State v. Stevens, supra, 115 N.J. at 303).

The State argues that the testimony about the other acts was not other-crimes evidence but rather was res gestae evidence, relying upon State v. L.P., 338 N.J. Super. 227 (App. Div.), certif. denied, 170 N.J. 205 (2001). Generally, however, proof of repeated sexual assaults upon the same victim is regarded as other-crimes evidence. Id. at 236-37. In L.P., in a sexual assault case involving a child victim, we made an exception from that rule for the following reasons: (1) the difficulty a young child has in terms of dates and time spans and the difficulty the victim would have in differentiating between the numerous and regular assaults that occurred; (2) the likelihood that the young victim would most vividly remember the earlier assaults; and (3) the victim's inability to disclose the earlier assaults was critical to understanding the facts and context of the crime. Id. at 238-39. None of these factors are present here. Accordingly, the testimony was inadmissible as res gestae evidence.

We must determine if these errors in admitting Treston's testimony were clearly capable of producing an unjust result. See R. 2:10-2. In a criminal trial, a mistake in admitting material into evidence is harmless "if no fundamental rights of the defendant are impaired and the weight of the evidence against the defendant is great." Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2010). When considering whether the evidentiary error is harmful, "we focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits.'" State v. Kempt, 195 N.J. 136, 149 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)). We must determine whether the inadmissible portions of Treston's testimony might have affected the jury's verdict and denied defendant a fair trial. See State v. Miraballes, 392 N.J. Super. 342, 361-62 (App. Div.), certif. denied, 192 N.J. 75 (2007).

In this case, there were no independent witnesses to the assaults and there was no physical evidence of forcible penetration. As a result, the conviction rested in large part on the credibility of E.A. Treston improperly bolstered that credibility by repeating E.A.'s story through inadmissible hearsay and then expressing her opinion that E.A. was "battered" and "beaten." Further, the inadmissible other-crimes evidence regarding the other assaults, and physical and emotional abuse prior to January 2006 also unfairly prejudiced defendant. If the jury was doubtful whether or not to believe E.A., the testimony of Treston that repeated and augmented E.A.'s testimony, that tended to bolster the credibility of E.A., and that denigrated defendant with inadmissible other-crimes evidence, had the grave potential to impermissibly influence the jury resulting in a miscarriage of justice. Accordingly, we reverse the conviction.

III

Defendant also complains about prosecutorial misconduct throughout the trial. We will not comment on every asserted improper statement the defense asserts, since a retrial will not involve a verbatim repeat of the last trial. However, two instances of prosecutorial conduct require some comment from us.

In her opening statement the assistant prosecutor made the following point:

I think [that] in order to understand what happened in this case and in order to be fair and impartial to everyone - and that was your oath, that you will be fair and impartial - you have to muster up as much empathy as you can. I am not talking about sympathy, ladies and gentlemen. Please don't get me wrong. Empathy. And Webster's Dictionary defines empathy as . . . the projection of one's own personality into the personality of another in order to understand that person better.

The assistant prosecutor then implied that the jurors must look at the evidence through the eyes of E.A. and her culture in order to understand the case. These references to empathy and to looking at the evidence from the point of view of E.A. were improper. Jurors are supposed to decide a case fairly and impartially. See State v. Osorio, 199 N.J. 486, 492 (2009) (stating that "[o]ne of our most cherished rights is the right to trial by a fair and impartial jury"). They should not put themselves into the shoes of the victim of the crime and decide the case from that perspective. The statement was a veiled attempt to improperly garner sympathy for the victim. See State v. W.L., Sr., 292 N.J. Super. 100, 111 (App. Div. 1996) (stating that "[i]n a close and sensitive case . . ., emotional appeals by the prosecutor calculated to arouse sympathy for the victim and hate and anger against the defendant have a strong potential to cause a miscarriage of justice").

When the assistant prosecutor was cross-examining defendant, she improperly asked defendant to comment on the truthfulness of another witness's testimony in the following line of inquiry:

Q. You are contradicting the testimony of any other witnesses who have testified in court who have said that you say it three times and then you are divorced?

A. I did not say it three times.

. . . .

Q. You have heard the testimony of the witness previously correct?

A Which?

Q. Specifically [E.A.]?

A. Yes.

Q. And you have also heard Dr. Warrick's testimony, correct?

A. Yes.

Q. Okay. Now, when [E.A.] said that you said, 'I divorce you, I divorce you, I divorce you,' three times, you are saying she lied about that?

[emphasis supplied.]

This line of inquiry was improper. "[C]ross examination [that] compels a witness to characterize the testimony of another witness . . . is . . . argumentative and highly improper." State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).

IV

We briefly address one other issue raised in this appeal that may emerge again on retrial.

Dr. Warrick was presented as an expert witness by the State as an expert in Egyptian culture, comparative law, and gender issues to provide a framework for the jury's consideration of the victim's delay in reporting the sexual assaults. Defendant notes that this testimony was offered to bolster and substantiate the credibility of E.A. by offering an explanation for her delay in reporting the alleged sexual assaults.

Although these issues were not raised before the trial court, defendant now argues that New Jersey law has no precedent for the use of a cultural expert in this context; that the testimony invaded the province of the jury to determine the credibility of E.A.; and that it violated defendant's right to Sixth Amendment confrontation because it contained hearsay testimony. Defendant also contends that there is no scientific basis for Warrick's opinion, unlike the scientific basis for the Battered Women Syndrome and Child Sexual Assault Accommodation Syndrome used to explain the failure of a victim to report an assault. Further, defendant maintains that the testimony did not target the situation at hand, namely an educated Egyptian woman living in the United States. He asserts that because Warrick testified that Egyptian women would talk about such matters with intimate friends and close female family members, her testimony did not explain why E.A. did not report the assaults to her sister.

Because these issues were not raised before the trial court, we do not have a complete record before us regarding these objections nor the benefit of the trial court's resolution and analysis of defendant's concerns. See State v. Robinson, 200 N.J. 1, 21 (2009) (stating that the failure of a party to raise an issue below "denied any reviewing court the benefit of a robust record within which the claim could be considered"). Accordingly, these are issues that may be explored on retrial. We merely note at this juncture that the trial court's "gatekeeper function" requires it to determine "'whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be.'" State v. Miraballes, supra, 392 N.J. Super. at 361 (quoting State v. Nesbitt, 185 N.J. 504, 514 (2006)).

Trial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be. Consistent with Evidence Rule 702, a trial court must be satisfied that the expert's knowledge and experience is reasonably required to inform the jury on a matter that may be beyond the jurors' ken and will help jurors understand the evidence or determine a fact in issue.

[State v. Nesbitt, supra, 185 N.J. at 514.]

If Warrick's testimony is allowed, care must be taken that it does not go beyond the bounds of relevant evidence. At the trial, Warrick's testimony encompassed virginity, honor killings, and other issues having little to do with the circumstances confronting a married victim of a spousal sexual assault. On retrial, if Warrick's testimony is allowed, efforts must be made to assure that the testimony remains within the confines of relevant evidence under N.J.R.E. 401.

Since the case is remanded for a new trial, we need not address the sentencing issues raised in this appeal.

Reversed and remanded for a new trial.

(continued)

(continued)

2

A-4422-07T4

RECORD IMPOUNDED

December 22, 2009