STATE OF NEW JERSEY v. A.O

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5305-06T45305-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.O.,

Defendant-Appellant.

_________________________________________________

 

Argued October 2, 2008 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, Indictment No.

05-02-00058.

George T. Daggett argued the cause for

appellant (Daggett, Kraemer, Eliades,

Kovach & Ursin, attorneys; Mr. Daggett,

on the brief).

Gregory R. Mueller, Assistant Sussex County

Prosecutor, argued the cause for respondent

(David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, of counsel and on the brief).

PER CURIAM

Defendant was convicted of two counts each 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 third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. These charges involved defendant's nieces, A.L. and B.L. Defendant was sentenced to an aggregate sentence of thirty years in the custody of the Commissioner of Corrections with ten years to be served before parole eligibility. On this appeal he argues:

POINT I - THE COURT BELOW ERRED REFUSING TO ALLOW THE DEFENSE TO INTRODUCE EVIDENCE THAT B.B. HAD DREAMS ABOUT GHOSTS OVER A PERIOD OF TIME.

POINT II - THE RECORDED STATEMENT TAKEN FROM THE DEFENDANT SHOULD BE EXCLUDED.

POINT III - THE SENTENCE OF A MANDATORY MINIMUM PERIOD OF INCARCERATION WITHOUT PAROLE WAS NOT STATUTORILY AUTHORIZED NOR WAS THE IMPOSITION OF CONSECUTIVE SENTENCES.

We reject these contentions and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).

I

Defendant is the uncle of B.L., who was born in June 1991, and A.L., who was born in November 1996. Defendant and his sister-in-law's family were neighbors and had a close relationship. B.L. and A.L. would often spend time with defendant.

On August 29, 2004, A.L. slept over at defendant's home. The following morning, defendant dropped A.L. off at her house, and A.L. told her mother she did not sleep well the previous night. Upon learning this, B.L. told her mother that defendant "had been touching [her] for the past five years," beginning when B.L. was eight years old, and that defendant "would touch [her]" when she visited his house. B.L. said she would return home early from defendant's home because she was "uncomfortable" and that she "didn't want it to happen to [A.L.]." B.L. repeated her allegations to her father. B.L. indicated that she had kept this information a secret and had only told her best friend, A.G. B.L. did not talk to A.L. about the aforementioned conversation that day.

When A.L.'s parents asked her if anyone ever touched her "where you're not suppose to be touched," A.L. disclosed that defendant had touched her the previous night. When asked where she was touched, A.L. "pointed to her . . . vaginal area" and she said she was touched under her clothes. According to A.L., after finding her while playing hide and seek with defendant and her cousin, defendant "put his hands under [her night]gown," and touched her vaginal area. The children's mother discussed the matter with a friend who worked for a child abuse program and with the children's pediatrician. Thereafter the matter was reported to the Sussex County Prosecutor's Office. Both girls were simultaneously interviewed by different detectives, and the pediatrician and a forensic nurse conducted a physical examination of A.L.

B.L. testified at the trial. She stated that defendant began touching her when she was eight years old. According to B.L., the first time defendant abused her, she was at defendant's house because defendant was taking her bowling. B.L. saw defendant nude through his open bedroom door as he was getting out of the shower. After defendant got dressed, he came out of his room and told B.L. he was going "to teach [her] something that two people that love each other do," but that she couldn't tell anyone or she would get in trouble. Defendant took off B.L.'s shorts and underwear and performed cunnilingus on her. B.L. testified that during that period, defendant was masturbating and he ejaculated. This entire incident occurred at defendant's home on the living room sofa.

B.L. indicated another incident occurred one afternoon at her house after school, when defendant came over and went into her bedroom. Defendant "tried to tear off" her pants, but he finally stopped after she kept saying "no."

An additional incident occurred when B.L. spent the night at defendant's home. B.L. was sleeping in a bed with A.L., and B.L. woke up because defendant had his hand down her pajama pants and was touching and rubbing her vagina for about fifteen minutes. B.L. testified that after defendant left the room she woke up A.L. and then B.L. went into the kitchen two different times to try to call her parents and return home. Defendant stopped her phone call the first time, and the second time his wife came into the kitchen and told her to go to bed. B.L. testified that defendant then tried to "cuddle up next to [her]," but that was the last time defendant ever did anything to her.

On November 14, 2006, Detective Kimberly Unhoch, then of the Sussex County Prosecutor's Office, conducted the videotaped interview of A.L. A.L.'s videotaped statement was played for the jury. A.L. also testified at the trial. She reported that in addition to the events of August 29, 2004 that were reported the next day, defendant assaulted her in the back seat of his car on the way to or from gym class. According to A.L., defendant removed A.L.'s pants and underwear along with his own pants, touched her vagina with his hand and penis, performed cunnilingus on her, and put his penis in A.L.'s vagina.

On August 31, 2004, after the initial interviews, Detective David White of Hardyston Township Police Department went to defendant's residence around 5:30 p.m. to 5:45 p.m. and requested defendant come to the police station. Defendant and his wife went to the station.

Detectives White and Unhoch interviewed defendant. Defendant was given his Miranda warnings and signed and dated the "Miranda card." Defendant was thereafter questioned about his nieces' allegations of abuse. The interview began at 6:07 p.m. and concluded at 7:48 p.m. Only the portion between 7:35 p.m. to 7:48 p.m. was tape recorded. Defendant was offered water breaks during the interview.

Detective White took extensive handwritten notes during the interview while Detective Unhoch took only "minimal" notes. Both detectives incorporated their notes into their final written reports and then destroyed their handwritten notes according to what they called department "practice" or "policy" at the time. According to Detective White, during the unrecorded portion of the interview, defendant admitted to removing A.L.'s pants and underwear and touching her vagina with his mouth in the backseat of his car, as well as to once touching B.L.'s vagina with his mouth. He reported he once "touched [the] vagina" of each girl "with his mouth." Detective White testified that defendant denied ever penetrating A.L. However, according to White, defendant stated, several times, "the girls were telling the truth."

During the recorded portion of defendant's interview, which was admitted into evidence before the jury, defendant stated "I was just . . . I guess sexually touching and stuff. . . . I'm guilty for everything." Defendant went on to say, "[t]hose girls are telling the truth. Just let em. Just fucking kill me."

With regard to B.L., defendant indicated in his statement that he used "[his] hand" to touch B.L.'s vaginal area, but only did it once. Defendant admitted to touching A.L. on August 29, 2004, but indicated that "[he] didn't penetrate. [He] didn't do any of that." Defendant admitted to "[o]ne other" incident with A.L. where he "just touched her . . . [i]n her vaginal area" with his hand and "probably" his mouth. Defendant stated he "pulled [A.L.'s] pants down" and he "[j]ust touched her and that's it." He further stated "I didn't do anything bad." When asked why defendant did these acts to the girls, he stated "I don't know why I did it. Cause I'm a jerk I guess. I don't know (sounds of crying) I'm done. I'm finished." Defendant concluded his statement by apologizing and stating "I'm ashamed."

Defendant testified at trial that during the unrecorded portion of the interview, he stated that if he touched the girls below the belt, it was "accidentally" done while "[w]restling around." Defendant testified that Detective White then told defendant that it did not matter whether the touching was accidental, "[i]t could be considered inappropriate touching." At trial defendant indicated that he "[n]ever" touched the girls "[i]n any sexual manner." Defendant also testified that the night B.L. stated she woke up when defendant had his hands down her pajama pants, B.L. came into his bedroom "[y]elling that she had seen someone. Had been a ghost or something," and "wanted to go home."

II

Defendant argues that the trial court committed reversible error by "refusing to allow the defense to introduce evidence that B.L. had dreams about ghosts over a period of time." He argues it was relevant to the issues and admissible under N.J.R.E. 403. Defendant argues that the evidence is also admissible evidence of "habit" under N.J.R.E. 406(a). He asserts that such evidence confirms his explanation of what happened, as compared to B.L.'s version of the facts. We reject both contentions. The judge allowed defendant to pursue questions about ghosts, over the State's objection, during defendant's own testimony and was allowed to ask A.L. on cross-examination if B.L. told her about seeing ghosts.

According to defendant, the judge precluded defendant from cross-examining B.L. about ghosts after she testified that "she woke up in the middle of the night" at defendant's home when defendant "was loosening her pajama pants." Defendant asserts he was also precluded from asking questions of Detective Don Peter on the subject although it was discussed during his interview with B.L. Defendant argues that the evidence about being awakened by the fear of ghosts was relevant because "B.L. [testified] that she was awakened by the [d]efendant and the [d]efendant testified that she screamed that she was awakened by a ghost." Defendant also thought the testimony was relevant as to why A.L. was awakened. Defendant argues that the excluded evidence warrants a new trial.

A.L. testified that her sister had told her "about the ghosts." Subsequently, on cross-examination, defendant asked B.L. if she saw a therapist prior to August 2004. When she indicated yes, defendant asked whether B.L. saw that therapist because she saw ghosts. The State objected and argued that testimony regarding B.L.'s communications with her counselor were privileged.

The court precluded the cross-examination about B.L.'s communications with her counselor because even if it was probative that B.L. was seeing a counselor at the time, the probative value was "outweighed by the prejudicial effect." The judge also stated that "I don't know if there's any children that don't sometimes think they see ghosts or get scared by ghost stories. I find it to be very collateral here." Finally, the judge stated there was no justification to delve into the mental health of B.L. The judge felt it inappropriate to permit "an excursion into the mental health of the child" who, according to defense counsel, had "been seeing a therapist for years."

The judge permitted defendant to develop what B.L. said about seeing ghosts. Defendant testified that on a night when B.L. asked to go home early, "[B.L.] came in. Yelling that she had seen someone. Had seen a ghost or something. I have no idea. But she came in yelling and screaming. That she wanted to go home." The court ruled that his testimony was admissible "to the extent that it was [defendant's] version of what was done and said at that time." Further the court noted that it had previously precluded "a discussion that there was something wrong with the mental health of the child underlying that." Thus, the State's objection was overruled and the defendant was permitted to testify that B.L. said she saw a ghost the night she was screaming.

The defense also called Detective Peter regarding what B.L. told him in the taped interview. Defendant wanted to ask Detective Peter whether B.L. ever told him she saw ghosts or thought her room was "haunted by ghosts" and if she went to therapy because of ghosts. Defendant argued he was trying to show "that [B.L.] told the detectives that she saw ghosts. That corroborates the defendant's testimony." However, the judge held he would allow anything to be developed regarding "what happened" but not "an attack on the child's mental health capacity." The judge again believed "the prejudicial effect outweighs any probative value." According to the judge:

[T]he reference to therapy, starts to raise an issue of the child's capacity to perceive reality and report it. That's not appropriate in this case.... And in addition, there's no, as I understand it, specific expert testimony, suggesting that she really has difficulty with perceiving and recording reality. And I consider about with ghosts and childhood, not to be an indication of abnormality.

The trial court did not abuse its discretion in precluding defendant from questioning B.L. and Detective Peter about ghosts. A judge may exclude relevant evidence on the grounds of undue prejudice or confusion of the issues, or an undue delay or waste of time. N.J.R.E. 403. Furthermore, the right to "cross-examine accusing witnesses is not absolute," State v. B.M., 397 N.J. Super. 367, 380 (App. Div. 2008), and "[i]t is well- established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown." State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990) (citing Gaido v. Weiser, 227 N.J. Super. 175, 189, (App. Div. 1988), aff'd, 115 N.J. 310 (1989); Cestero v. Ferrara, 110 N.J. Super. 264, 273-74 (App. Div. 1970), aff'd, 57 N.J 497 (1971); see also State v. Gaikwad, 349 N.J. Super. 62, 86-87 (App. Div. 2002). We defer to the trial judge's exercise of discretion in this case, particularly because defendant never made an expert proffer regarding B.L.'s mental health or that she had trouble perceiving reality. In fact, defendant conceded the opposite when he stated he was "not suggesting that" B.L. had trouble perceiving reality.

Thus, we have no basis for disturbing the trial court's finding that testimony concerning whether B.L. dreamed of ghosts had a greater prejudicial effect than its probative value. See N.J.R.E. 403. The recently decided State v. Schnabel, 196 N.J. 116, 121-22 (2008), is distinguishable because the sexual assault victims in that case had previously been sexually abused by their brother and the defendant's proffered testimony would explain how the victims would be aware of the impact of sexual abuse. Schnabel does not help defendant's cause.

Defendant also argues that "[i]f B.L. were to on a routine basis talk to her classmates about, not dreams, but the fact that there were ghosts that came into her room at night. That evidence would in fact be admissible under [R.] 406." Defendant further argues "that the fact that B.L. saw ghosts in her dreams should not be any different [than] whether she told her friends that there were in fact ghosts in her room since the dreams were of such regularity as to require therapy." However, N.J.R.E. 406 was not asserted in the trial court as a basis for the admission; the judge precluded evidence of therapy and the record does not support a claim that B.L. talked to her friends about seeing ghosts or dreaming of ghosts. In any event there was no evidence that B.L.'s dreams or nightmares about ghosts were a "routine practice" causing her to wake up and scream or manufacture stories. See Showalter v. Barilari, Inc., 312 N.J. Super. 494, 512 (App. Div. 1998) (citing State v. Kately, 270 N.J. Super. 356, 363 (App. Div. 1994)).

III

Defendant argues that the recording of his statements to the police should have been excluded because the tape recorder was only turned on for the last thirteen minutes, after over an hour of interrogation, and the police destroyed their written notes of the unrecorded part of the interview. Specifically, defendant argues that, because the detectives incorporated the notes into their final reports, "depriv[ing] the defense of knowing exactly . . . what the notes stated," defendant was precluded from determining "how accurate the [final police] report was." Defendant argues "he was led to believe that his accidental touching of the girls in playing games was in fact not criminal behavior" and "that his confession was not a confession but rather an admission to accidental touching during the playing of games" which the police confirmed.

However, this claim was not asserted in the trial court and under the plain error rule, we will not reverse a conviction based on an error not brought to the trial court's attention unless it was "clearly capable of producing an unjust result." R. 2:10-2. Indeed, there must be "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1970). We reject defendant's contention. See Killian v. United States, 368 U.S. 231, 242, 82 S. Ct. 302, 308, 7 L. Ed. 2d 256, 264 (1961) (no due process violation when an FBI agent destroyed his written notes because the notes "were made only for the purpose of transferring the data thereon" and "after having served that purpose, [the notes] were destroyed . . . in good faith and in accord with their normal practice"). See also California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). ("[W]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense."); State v. Dreher, 302 N.J. Super. 408, 481-85 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943 (1998), overruled in part, State v. Brown, 190 N.J. 144, 159 n.1 (2007) (destruction of police notes did not preclude "investigators' testimony that used final reports that incorporated information contained in the [destroyed] field notes").

In State v. Cook, 179 N.J. 533, 542-45 (2004), defendant was charged with murder and subjected to four custodial interrogations, all of which were unrecorded. The Supreme Court found no constitutional due process violation when defendant's unrecorded statements were admitted. Id. at 560. However, reacting to concerns over the police practice of not recording custodial interrogations, and "as part of [its] supervisory authority over the criminal justice system," the Court established "a committee to examine and make recommendations on the use of electronic audio and video recording of custodial interrogations." Id. at 539. In Cook, none of the four interrogations, totaling almost fourteen hours, were recorded; whereas here, the last thirteen minutes of an almost two-hour interrogation were recorded. See id. at 542-45.

In any event, the Special Committee on the Recordation of Custodial Interrogations appointed by the Supreme Court did not file its report until April 15, 2005, almost seven months after defendant's statement was taken.

See www.judiciary.state.nj.us/notices/reports/cookreport.pdf.

Next, R. 3:17 was adopted to implement Cook on October 14, 2005, to be effective January 1, 2006 with respect to homicide cases, and not until January 1, 2007 with respect to other covered non-homicide cases. Pressler, Current N.J. Court Rules, comment on R. 3:17.

The Rule requires electronic recording of all custodial interrogations, subject to certain exceptions. R. 3:17(b). Failure to record a custodial interrogation "shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement." R. 3:17(d). If there is no electronic recordation pursuant to this rule, "the court shall, upon request of the defendant, provide the jury with a cautionary instruction." R. 3:17(e). The Rule does not apply here, however, because defendant's statement was made and partially recorded even before the Committee made its recommendation. Here, the jury heard testimony that the detectives' notes were destroyed, and that only the final portion of the defendant's statement was recorded. Moreover, defendant cross-examined both Detectives White and Unhoch extensively about the destroyed notes and the partially taped interview. The defendant did not seek to exclude the statements on the basis he now asserts, but rather sought to capitalize on the fact the detectives destroyed their notes and recorded only what they selectively chose to have recorded at the end of the interview.

IV

We find no basis for disturbing the sentences imposed. There were two victims, and the judge expressly noted that as the reason for imposing consecutive sentences. See State v. Yarbrough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014 (1986); State v. Molina, 168 N.J. 436, 442-43 (2001); State v. J.G., 261 N.J. Super. 409, 414, 426-27 (App. Div. 1993), certif. denied, 133 N.J. 436 (1993). See also State v. Roth, 95 N.J. 334, 363-64 (1984). The judge also noted the "traumatic consequences" to both victims.

Defendant also attacks the parole ineligibility terms imposed. The State does not cross-appeal from the absence of a sentence under the No Early Release Act, N.J.S.A. 2C:43-7.2. We remand for reconsideration of the period of parole ineligibility on both first-degree convictions.

While the parties have not provided us with a copy of the presentence report, there is no dispute he had no criminal record and was a "first offender," as stated by the judge. Nevertheless, in sentencing the defendant, the judge said:

And the law, as the law evolves and based on the dates involved here, I don't think it's a result that's much off the mark, but in thinking about parole ineligibility I've reached the conclusion that even though I don't move to the top of the range of the two consecutive First Degree sentences, that is to 40 years, I do think it is appropriate to impose some period of parole ineligibility. And I look at the fact, significantly, that [defendant] continues to deny his involvement in the face of a jury verdict, his own admission, and ultimately what I think is fairly compelling evidence. He is in denial. And that makes him an enhanced danger to the community. And it would be inappropriate, in my view, for there to be not some period of absolute parole ineligibility, after which the Parole Board can consider whether or not he is appropriate and safe to be back in the community. So there will be five years of parole ineligibility on each First Degree count, for an aggregate of ten years parole ineligibility.

[Emphasis added.]

If the trial judge's comments reflect concern because of defendant's failure to perceive the criminality and harmful effects of his actions, the judge was justified in finding both a risk that defendant will commit another offense and the need to deter him. N.J.S.A. 2C:44-1a(3), (9). However the judge may have penalized defendant and imposed parole ineligibility terms for maintaining his innocence something he cannot do. See N.J.S.A. 2C:44-1c(1); Grayson v. United States 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed 2d 582 (1978); State v. Poteet, 61 N.J. 493 (1972). The judge's reasons for imposing a parole ineligibility period must be clear and permissible.

Accordingly, the judgment of conviction is affirmed. The matter is remanded for reconsideration of the parole ineligibility term based on all appropriate criteria.

A.L. testified via closed circuit television and was permitted to hold her stuffed bear. See State v. Crandall, 120 N.J. 649 (1990).

As will be hereinafter developed, this interview occurred before recordation was required by State v. Cook, 179 N.J. 533 (2004).

The transcript notes that there were "sounds of crying" on several occasions.

The transcript reflects that B.L. said "no" before the objection was raised and the "side bar" conference was conducted. However, the judge ultimately sustained the objection and directed the jury to disregard any "conversations with [her] counselor."

In his brief before us, defendant states that "[t]he transcript indicates that one sister, B.L. had told A.L. about the ghosts she had seen. So A.L. was also aware of the presence of imaginary ghosts." Defendant does not link that fact to the relevance of the proffered evidence.

The convictions relating to B.L. were merged into the aggravated sexual assault as to her, and the convictions involving A.L. were merged into the aggravated sexual assault as to her. The two sentences for aggravated sexual assault were made consecutive.

Defendant may well have benefited from the exclusion of evidence about B.L.'s therapy.

The indictment on each count referred to dates "on and between" 1999 and 2004, and the jury was not given a special verdict as to the dates. As a result, there was no jury finding of an offense after June 29, 2001. See N.J.S.A. 2C:43-7.2. Defendant may well have also benefited from this fact.

(continued)

(continued)

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A-5305-06T4

RECORD IMPOUNDED

February 3, 2009