STATE OF NEW JERSEY v. M.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2747-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

 

______________________________

November 9, 2012

 

Argued December 7, 2011 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1970.

 

Glenn A. Garber argued the cause for appellant.

 

Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

PER CURIAM

On August 31, 2007, a Monmouth County grand jury returned a five-count indictment charging defendant M.M. with (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (Count One); (2) second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); (3) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; (4) third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Four); and (5) third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Five). The victim in all of the offenses was defendant's daughter, N.M. A jury convicted defendant of all counts. At sentencing, the court imposed an aggregate ten-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, along with parole supervision for life pursuant to the Registration and Community Notification Laws ("Megan's Law"), N.J.S.A. 2C:7-1 to -11. While we conclude no single error standing alone warrants reversal, we are satisfied in cases such as this where substantial physical evidence is lacking, the errors, when considered collectively, warrant reversal because the evidence largely turned upon the jury's assessment of the witnesses' credibility. We therefore reverse and remand for a new trial.

Prior to trial, the prosecution moved before the court for an order permitting N.M. to testify by way of closed-circuit television pursuant to N.J.S.A. 2A:84A-32.4. The trial court conducted a hearing on October 2, 2008, during which N.M.'s psychiatrist, Richard Kleinmann, testified that he was the director of High Focus, where N.M. was admitted for in-patient treatment from January 2008 until late June 2008. Although the court had ordered that the records from High Focus be delivered to the court for review, in advance of the hearing, the records had not been delivered by the time of the hearing. The court determined it would proceed with the hearing because Dr. Kleinmann was present and prepared to testify. He then testified that N.M. did not present as a "stable young lady" when admitted to High Focus and that she left "still very seriously impaired." He expressed that he had "grave doubts" that N.M. could testify directly in front of defendant. He then opined that "subject to the caveat that she's been outside of my treatment now for three months . . . it would be extremely destabilizing for her, not only to testify in front of her father, but I have concerns about the whole courtroom." He based his opinion on the fact that N.M. would "have periods of dissociation while she was in treatment with us, as well as suicidal thoughts and serious cutting that she would engage in." He expressed concern that her testimony in a courtroom "could trigger to her the trauma that she reports having gone through, which could result in another hospitalization or suicide attempt."

Dr. Kleinmann was aware that N.M. testified before the grand jury in August 2007, and three months later was hospitalized at Carrier Clinic before being transferred to High Focus. Under cross-examination, however, he could not recall whether he had reviewed any medical records, including those from Carrier Clinic. He indicated that "normally" he would have reviewed records from Carrier Clinic. Nor did he have any recollection that N.M.'s testifying before the grand jury adversely impacted her or whether any of that information was included in N.M.'s chart. Although he never had a specific discussion with N.M. about her grand jury testimony, the doctor nonetheless concluded that the "whole environment of the courtroom is going to be very stressful for her. This is a very vulnerable child, and when she was under our care, she was sometimes holding on by a very slim thread."

At the outset of Dr. Kleinmann's testimony, defense counsel had reminded the court that N.M.'s psychological records had been requested so the defense expert could review those records, interview N.M., and present testimony in opposition to the State's motion. At the conclusion of Dr. Kleinmann's testimony, defense counsel reserved "the right to recall the doctor for further cross-examination after the records are provided."

There is no indication that defense counsel sought further questioning of Dr. Kleinmann or that there was a continuation of the pretrial hearing during which the defense produced its expert to rebut the opinions expressed by Dr. Kleinmann. Rather, when N.M. appeared for her trial testimony on October 1, 2009, the court denied the State's application for her closed-circuit testimony, but, over defendant's objection, advised that a 4' x 4' screen would be placed in the courtroom to shield N.M. from spectators during her testimony. The screen did not shield N.M. from defendant's view or from the jury's view. In ruling that the screen would be utilized, the court stated:

I'm not barring anybody from the courtroom, but I'm keeping a barrier between the witness and other people, and there may be other people who come in the courtroom too. We could have people walk in from the hallway that have no interest in the case, and the best way to protect everybody and give them the opportunity to hear the witness, without actually seeing the witness and hav[ing] the witness see them, is by putting up the screen and cutting off the one side. So, that's what I thought was appropriate to balance the interest of both sides.

 

The evidence presented at trial revealed that N.M. s allegations of abuse first came to light when she was fourteen and near the end of eighth grade. She spoke to her school guidance counselor and told him that a friend was being abused by a family member. The counselor referred N.M. to the school social worker, to whom N.M. repeated the same story. As a result, school officials contacted the Division of Youth and Family Services ("Division"). The Division conducted an investigation, interviewing N.M. and other members of her family. N.M. maintained that her friend, not herself, was being abused and refused to give her friend's name.

The next incident where N.M. made statements that provoked suspicion of abuse occurred during an eighth-grade class trip to Washington, D.C., when N.M. told her vice-principal that she did not want to go home because "[she] didn't like [her] dad." Over defense counsel's objection, the vice-principal testified: "N.M. said to me that she was happy being on the trip, but was withdrawn because she was concerned[,] thinking about going home and would rather be where she was." Although school officials considered contacting the Division again, they did not do so. Instead, N.M. was referred to a psychologist and counselor.

During the next school term, an incident occurred in N.M.'s ninth-grade biology class. She threw a Post-it note pad at her teacher and then tried to wrestle it away. On the Post-it note, N.M. had written "rape is a good thing" three or four times. After class, the teacher asked N.M. if there was anything about which he should be concerned. N.M. walked out the door without responding. The biology teacher testified that later in the day, he overheard a conversation between N.M. and another student. The student was complaining about having a lot of homework. N.M. responded, "'You wouldn't want my life.'" Defense counsel objected to the statement as hearsay. The objection was overruled and the court permitted the statement on the basis that "It is a statement. It's not [offered] to prove the truth of anything. She just says it. . . . No, it's not offered for the truth of the matter. I will permit it."

The school contacted N.M.'s counselor and informed the counselor about the Post-it note incident. The counselor met with N.M. later that week and questioned her about the incident. In response, N.M. told her counselor that her father had sexually molested her. The counselor conveyed this information to N.M.'s mother, Mrs. M., who, along with N.M. and the counselor, then went to the Holmdel Police Department to report N.M.'s allegations.

As part of its case in chief, the State, without objection from the defense, introduced instant messages (IMs) between N.M. and her cousin, J. The IMs were from February 1, 2007 to June 6, 2007, when N.M. was fifteen years old and in the ninth grade. N.M. testified that on February 3, 2007, she sent a message to J. in which she said: "'Yeah look, about that whole ''rape'' thing, I looked it up on RAIN and according to that (a trusted source) it is rape.'" N.M. explained that she was discussing whether her father inserting his finger into her vagina was rape. She testified about a March 4, 2007 conversation in which she said, "'I'm turning into my father'" and "'J., I'm not going to let myself molest people.'" N.M. further testified about a conversation on April 5, in which she asked J., "'If you go to the hospital for like STD [sexually transmitted disease] testing, do you need a guardian/can it be anonymous/confidential?'" In the same conversation, N.M. told J. she "'woke up the other day and [she] ''was in a lot of pain,''" and her vagina "'looked nasty.'" She also told him that the following day she "'found his like shorts inside out under [her] bed.'" N.M. also testified about an April 16 message in which she told J., "'Now if my daughter is ever raped (Lord hopefully not) I will now know how to be there for her.'"

The prosecution also introduced, without objection from the defense, N.M. s poetry journal, which she created for a ninth- grade English assignment. The jury heard the following excerpts:

"Every country, every age, every day of the year, people suffering, girls being mothers, diseases infecting the young and the old, mountains of regret, wave after wave of painful memories, no more life gone, loss of innocence."

 

["Eight Line Poem [-] Loss of Innocence".]

 

. . . .

 

"Genocide cruel, ruthless raping, torturing, killing, plowing forward with no mercy, mass murder."

 

["Five Line Poem".]

. . . .

 

"Loss of innocence is a teenager's slit wrists, a dirty needle, a broken condom, an empty beer bottle, a smoking gun."

 

["Free Verse".]

 

. . . .

 

"Why did this happen to me? And what did I do to deserve this? Why can t I just break free, and bury this tragic abyss? But how can I escape and forget all that has happened, when my mouth seems to be bound with tape, and my whole life I ve felt abandoned? I could run away to a far away land and forget this dismay, but no, I must make others understand about what has happened, I must spread the word and find a way for others like me to be heard."

 

[From the book entitled "Sonnet".]

 

. . . .

 

"This was a night to remember, a night never to forget, the first time it happened, when the shadow she met. She blames it on herself and kept it a dark secret, but it only got worse[,] and that man still hasn't quit."

 

["Rhymed Verse".]

 

The theme of the prosecution s summation was that defendant's statement to police that his daughter "was not a liar" and "had a break with reality" was indicative of his guilt. The prosecutor told the jury that "his daughter was not lying . . . those words are absolutely true. His daughter was not lying when she went to the police." Asserting that "this case does come down to credibility," the prosecutor argued that each of her witnesses had no motive to lie. A police officer was among the witnesses who testified for the State, and the prosecutor asked the jury what motive the officer, who was a twenty-eight-year veteran of the police force, had to lie. Defense counsel posed no objection to the prosecutor's summation either during or after summation.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL WAS TAINTED BY MULTIPLE EVIDENTIARY ERRORS THAT INDIVIDUALLY AND CUMULATIVELY VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

 

POINT II

THE PROSECUTOR'S IMPROPER REMARKS AND ARGUMENTS RENDERED THE TRIAL UNFAIR AND VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHTS.

 

POINT III

THE TRIAL COURT'S ORDER PLACING A SCREEN THAT SHIELDED THE COMPLAINANT FROM THE VIEW OF SPECTATORS, PARTLY CLOSING THE COURTROOM DURING HER TESTIMONY AND POSITIONING THE COURT REPORTER TO BLOCK THE WITNESS'S VIEW OF THE DEFENDANT, VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR AND PUBLIC TRIAL AND DUE PROCESS OF LAW.

 

POINT IV

THE CUMULATIVE IMPACT OF THE NUMEROUS ERRORS AND MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

POINT V

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERRONEOUS BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

I.

Defendant challenges a number of evidentiary rulings. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard, meaning we will defer to a trial court's evidentiary rulings unless the ruling "'was so wide [of] the mark that a manifest denial of justice resulted.'" State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999))).

A. Biology Teacher and Vice-Principal Testimony

Defendant argues the vice-principal's testimony and biology teacher's testimony recounting statements made by N.M. contained hearsay statements improperly admitted by the court. The State counters that these statements, along with other statements and actions of N.M., were not admitted to prove the truth of the matters contained in the statements, but instead to demonstrate the effect each statement had on the hearer.

Hearsay is defined 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." N.J.R.E. 801(c). The hearsay rule applies when a statement "is offered to prove the truth of the statement attributed to the declarant." State v. Long, 173 N.J. 138, 152 (2002). Therefore, it follows that "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." Ibid. (citing N.J.R.E. 802). However, "if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule." Ibid.

The State argues that N.M.'s statement that she did not want to go home was not offered to show she wanted to stay in Washington, D.C., but instead to show that the conversation occurred and the effect the statement had upon the hearer, in this instance, her vice-principal. Similarly, the State contends the statement overheard by the biology teacher was not offered to show that the student to whom N.M. was speaking did not want her life, but to show that N.M. made the comment and its effect upon the vice-principal. The State emphasizes that the statement caused concern for N.M. and led school officials to address their concerns by reporting the matter to the Division and questioning N.M.

The effect N.M.'s statement had upon the hearers, however, was not relevant to any material fact in the trial. Thus, the trial court erred in admitting this testimony. We are satisfied, however, that admission of this evidence, standing alone, was not capable of producing an unjust result. R. 2:10-2.

B. Excluded Testimony

Defendant contends the trial court wrongfully excluded testimony the defense attempted to elicit from defendant during his testimony concerning whether Mrs. M. ever commented to the children that he had different relationships with his children. Defendant contends this evidence was not being offered for the truth of the matter asserted but that it was relevant to put before the jury N.M.'s motive to lodge the false allegations against him. However, when the prosecutor objected to this testimony, defense counsel offered no response, after which the judge sustained the objection, ruling that line of questioning was hearsay.

While N.M.'s motive to fabricate her testimony was highly relevant, the court's failure to permit this testimony was not capable of causing an unjust result. R. 2:10-2. Mrs. M. testified about the strained relationship she had with her husband, and N.M. testified she believed her eldest sister was her father's favorite and she was less favored. Because the jury was able to hear similar evidence from other witnesses, the exclusion of this evidence during defendant's testimony was not capable of producing an unjust result. See State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984) (finding "admission of the complained of evidence was harmless error in view of the other similar proofs before the jury"), aff'd, 103 N.J. 169 (1986).

C. Statements In the IMs and Poetry Journal

Defendant next contends N.M.'s prior statements contained in the IMs to her cousin and the poetry entries in her English class journal were hearsay statements offered for the sole purpose of bolstering her credibility as a witness. Defendant did not, however, object to the statements. We therefore review the claimed error under the plain error standard, namely, whether the error raised a reasonable doubt as to whether the error led the jury to a result it would otherwise not have reached. State v. Taffaro, 195 N.J. 442, 454 (2008); State v. Kemp, 195 N.J. 136, 149-50 (2008); State v. Burns, 192 N.J. 312, 341 (2007). Measured under this standard, we do not conclude the court erred in permitting this testimony, let alone committed plain error.

First, as a general rule, where an objection is not made, the court may "infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971). Second, by not objecting to this testimony, it is reasonable to conclude that trial counsel's failure to do so was a strategic decision. State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999). The record supports this conclusion. For example, defense's theory of the case was that N.M. was troubled. Defense counsel, utilizing the IMs, elicited N.M.'s acknowledgement that she told her cousin she was a "good storyteller." In summation, defense counsel also reiterated the "good storyteller" theme.

D. Testimony Regarding Photographs Depicting Her Bruised Thigh

Defendant argues "N.M.'s testimony failed to establish the basic relevance of [the] photographs[,]" and the judge erred in allowing the jury to decide relevance, since "[i]t is the duty of the trial judge, not the jury, to decide questions of admissibility and preliminary questions of relevance" (citing N.J.R.E. 104). Defendant conceded the photographs "could be probative[,]" but "only in conjunction with some evidence linking the depicted bruises to . . . defendant's conduct." However, defendant contends no such evidence was provided. Defendant argues the photographs were highly prejudicial, as they had "an obvious tendency to garner the jury's sympathy for N.M." and, even if relevant, should have been excluded for this reason.

The State asserts that N.M.'s "testimony regarding her taking of the photographs just prior to going to the Holmdel Police Department fully satisfied the authentication requirements of N.J.R.E. 901[.]" The State further argues the photographs were relevant and N.M.'s uncertainty as to how she incurred the bruises did not render them less relevant. The State contends that "it was for the jury to determine whether [N.M.]'s expressed uncertainty detracted from the evidential weight they should assign to the photographs." Further, the State argues that "the expressed uncertainty did not render the photographs more prejudicial than probative[,]" and defendant's contention that the photographs "'had an obvious tendency to garner'" sympathy from the jury "fails to demonstrate anything more than a slight potential for prejudice and not the highly inflammatory nature required for exclusion on this basis."

We conclude the admission of the photographs did not represent a manifest denial of justice. The photographs depicted bruises on the inside of N.M's thigh. This evidence was relevant as circumstantial evidence that she was sexually assaulted by her father. Defendant's argument that N.M.'s equivocal testimony regarding how she was bruised was not a basis to exclude the evidence but was relevant to the weight, if any, the jury accorded the evidence. See State v. Karpowitz, 98 N.J.L. 546, 549 (E. & A. 1923). Therefore, the trial court did not abuse its discretion in admitting the photographs into evidence.

II.

In Point II, defendant contends that during summation, the prosecutor inappropriately vouched for N.M. by informing the jury that N.M. "was not lying" and by telling the jury that all of the other State's witnesses believed N.M.'s allegations of sexual abuse were true. Defendant also takes issue with the prosecution's assertion that the police and other prosecution witnesses did not have any motive to lie.

Defendant contends the prosecutor also vouched for N.M.'s credibility by stating "she was having penile intercourse once a week" during the cross-examination of Dr. Berman and in summation. Defendant maintains "these comments improperly, and falsely, communicated that this crucial factual question was beyond dispute" and violated the prosecutorial duty "to refrain from conveying a personal opinion about . . . defendant's guilt, or the credibility of the complainant or other witnesses." Defendant argues the prosecutor's improper conduct prejudiced defendant's right "to have a jury fairly evaluate the merits of his defense[,]" thus requiring reversal of defendant's conviction.

The State responds that defendant's claims of prosecutorial misconduct, when viewed in full and proper context, are "wholly unsupported by the record[.]" According to the State, "[r]ather than asserting to the jury that [N.M.] was telling the truth . . .[,] the prosecution's quotation of defendant's own statement [during summation] served to highlight an important piece of evidence for the jury and establish a theme for [the prosecutor's] summation comments[.]" The State argues the summation was in response to defendant's attack on N.M.'s credibility and was consistent with the trial court s preliminary instructions to the jury on assessing witness credibility: "'Are they telling the truth[?] Are they lying[?]'" The State asserts the prosecutor's comments do not rise to the level of reversible error that would warrant the granting of a new trial.

A prosecutor should not make inaccurate legal or factual assertions during a trial, nor should a prosecutor vouch for the credibility of a witness. State v. Frost, 158 N.J 76, 85 (1999). Also, a prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). Rather, the prosecutor should "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001).

Because defendant did not object to any of the comments, generally, the remarks will not be deemed prejudicial and defendant must show plain error to be entitled to a new trial. State v. Feal, 194 N.J. 293, 312 (2008). Plain error is also established by demonstrating that the prosecutor's conduct was so egregious that it deprived the defendant of a fair trial. Frost, supra, 158 N.J. at 83.

The prosecutor's statements questioning the witnesses' motives to lie constituted bolstering. The prosecutor's statement that "[defendant's] daughter was not lying when she went to the police[,]" expresses an opinion as to N.M.'s truthfulness and bolstered her credibility. The prosecutor's remark, "What motive does Sergeant Torres have to come in here and lie? He's a [twenty-eight-year] veteran of the police department[,]" bolstered the officer's credibility. The Court has held that it is improper for a prosecutor to contend in summation that the police had no motive to lie. State v. R.B., 183 N.J. 308, 331-32 (2005); Frost, supra, 158 N.J. at 86. It is, however, unlikely these comments, standing alone, caused the jury to reach a result that it would not have otherwise reached.

III.

In Point III, defendant contends the use of a screen to shield N.M. was "inherently prejudicial" to defendant and "irreparably tainted" his trial. Defendant argues the court, by protecting the complainant in this way, "presumed the truth of the single most important fact that the jury was called upon to decide in the trial, and effectively vitiated the presumption of innocence." Defendant contends Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982), the case upon which the trial court relied to justify use of a screen, is inapplicable because it addressed only the First Amendment Rights of the press and the public to gain access to criminal trials, whereas this case implicates defendant's Sixth and Fourteenth Amendment rights. Defendant urges the court to instead adopt the reasoning of State v. Parker, 757 N.W.2d 7 (Neb. 2008), that "'there were no . . . innocuous inferences the jury would have been likely to derive from the screen,'" and find the court's use of a screen denied defendant the right to a fair trial.

The State argues that both Globe Newspaper and State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002), support the proposition that a trial court is permitted to close a courtroom where that "'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" The State contends the court imposed a reasonable limitation on courtroom spectators which "struck the appropriate balance between the rights of defendant" and the "well-documented and legally recognized psychological and emotional needs of [N.M.]" In addition, the State notes that Dr. Kleinmann and N.M.'s treating therapist provided evidence that "open courtroom testimony could lead to trauma," and N.M.'s "grand jury testimony had, in fact, resulted in the psychiatric hospitalization and long-term out-patient treatment of the victim." The State maintains the trial court's decision is supported by State v. Cusumano, 369 N.J. Super. 305, 312-13 (App. Div.), certif. denied, 181 N.J. 546 (2004), where, in a factually similar scenario, we upheld the trial court's proscription of movement in the courtroom during the testimony of an emotionally and psychologically traumatized seventeen-year-old sexual assault victim, finding this accommodation struck the appropriate balance between two competing interests.

"[O]ne of the most important means of assuring a fair trial is that the process be open to neutral observers." Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 7, 106 S. Ct. 2735, 2739, 92 L. Ed. 2d 1, 9 (1986) (Press-Enterprise II). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned . . . ." In re Oliver, 333 U.S. 257, 271 n.25, 68 S. Ct. 499, 506 n.25, 92 L. Ed. 682, 692-93 n.25 (1948); see also Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31, 38 (1984); Gannett Co. V. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 2905, 61 L. Ed. 2d 608, 622 (1979). The law recognizes, however, that an accused's right to a public trial is not absolute and, where warranted, may yield to other countervailing interests. Cuccio, supra, 350 N.J. Super. at 260. The Court found in Waller that any limitation placed upon an accused's right to a public trial over the objection of the accused must satisfy the following test:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

 

[Waller, supra, 467 U.S. at 48, 104 S. Ct. at 2216, 81 L. Ed. 2d at 39.]

We apply those principles to the present matter. The State initially sought to elicit the victim's testimony through closed-circuit presentation. The court rejected that proposal, concluding that erecting the 4' x 4' screen could achieve the objective of protecting the victim while, at the same time, not shielding her from defendant's view or from that of the jury. While that procedure may have been satisfactory and necessary, we cannot conclude on this record that it was justified.

We first note there is absolutely no evidence in the record, beyond Dr. Kleimann's conclusory opinion, that the victim would be unable to testify in open court. She testified before the grand jury. There is no evidence that her testimony was through closed-circuit television. Dr. Kleinmann, in response to the prosecutor's question whether he was aware that the victim was hospitalized at Carrier Clinic three months following her testimony, responded, "Yes." There is, however, nothing in the record that establishes a causal connection between the victim's grand jury testimony and her subsequent hospitalization three months later.

In determining to obstruct the spectators' view of the victim during her testimony, the judge stated:

I know that she's now [seventeen] years of age. I reviewed a number of psychiatric reports. She is somebody who is quite vulnerable. She's been in institutions. She's been treated. There are statements by psychiatrists that any confrontation with her father could lead to -- she's had suicidal ideations in the past -- could lead to some very serious issues in her personal health.

Particularly in light of the fact the victim was not shielded from defendant's view or from that of the jury, the judge failed to articulate what, in the record, led him to conclude that shielding her from spectators during her testimony overrode defendant's right to a public trial. In this case, as noted earlier, the evidence upon which the jury reached its decision was largely circumstantial. Thus, the jury's assessment of the credibility of the witnesses was critical. There are no reported decisions in New Jersey addressing this issue, but the impact of erecting a shield in a case such as this, where the State's proofs turned upon the jury's assessment of credibility, is illustrated in Parker, supra, 757 N.W.2d 7. There, although the court erected a screen to shield the victim from the defendant, rather than from spectators, the Supreme Court reasoned:

While the court surely placed the screen in the room out of genuine concern for S.M., that concern is precisely the threat to Parker's right to a fair trial. Whether S.M. really had reason to fear Parker, because he had abused her, was the essential subject that the jury had to determine based solely on the evidence properly adduced at trial. The insertion of the screen into the courtroom created a risk that this did not occur. It would have been a matter of common sense for the jurors to conclude that the court had placed the screen for S.M.'s protection because the court believed her accusations were true. We find it hard to imagine a practice more damaging to the presumption of innocence than one from which the jury may infer the court's official sanction of the truth of the accuser's testimony.

 

[Id. at 17.]

 

Here, as in Parker, "[t]here were no . . . innocuous inferences the jury would have been likely to derive from the screen." Ibid. The placement of the screen highlighted the victim's vulnerability, and the fact that the jury may only infer she was fearful of testifying in open court, as distinguished from fearful of testifying before defendant, is of no consequence when measured against the underlying rationale for a public trial, to ensure that the accused "'is fairly dealt with and not unjustly condemned.'" State v. Martini, 160 N.J. 248, 301 (1999) (quoting In re Oliver, supra, 333 U.S. at 270 n.25, 68 S. Ct. at 506 n.25, 92 L. Ed. at 692-93 n.25).

We recognize that "a judge is not restricted from imposing reasonable and, as circumstances may dictate, well-considered limitations on access to a trial in order to prevent situations which might impede the progress or fairness of the trial, as long as basic rights involved are not unduly infringed." Cuccio, supra, 350 N.J. Super. at 266. The closure here was not a complete closure of the courtroom. Had a more detailed record been established from which it could be reasonably determined that closure in this manner was fully justified, we may have viewed shielding the victim from spectators as a de minimis closure when balanced against defendant's Sixth and Fourteenth Amendment rights to a public trial. That detailed record, however, was not established here: Therefore, the prejudice to defendant resulting from such closure is presumed. As we stated in Cuccio:

A defendant is not required to prove specific prejudice in order to obtain relief for a violation of his or her Sixth Amendment public trial guarantee. The denial of a public trial to a criminal defendant is a structural error and thus subject to automatic reversal since it affects the framework within which the trial proceeds.

[Id. at 260 (internal citations and internal quotation marks omitted)]

 

 

IV.

Finally, defendant contends that even if any or all of these errors, individually, might be insufficient to justify reversal, when evaluated cumulatively, as they should be, they cannot be viewed as harmless, and it is clear that reversal is required. We agree.

The Court has recognized that the cumulative effect of small errors may be so great as to work prejudice such that reversal is warranted. Biruk v. Wilson, 50 N.J. 253, 262 (1967). A defendant is not, however, entitled to a perfect trial, but to a fair one. State v. Loftin, 146 N.J. 295, 397 (1996). Incidental legal errors which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may not be invoked to upset an otherwise valid conviction. State v. Orecchio, 16 N.J. 125, 129 (1954).

Here, the State did not have the benefit of physical evidence or other direct evidence to put before the jury. The proofs were primarily testimonial. To that end, at least three errors asserted by defendant cumulatively warrant reversal: (1) the admission of the victim's out-of-court statements to her biology teacher and vice-principal; (2) the prosecutor's improper vouching for the witnesses during summation, in particular the victim and the investigating police officer; and (3) the placement of a screen to shield the victim from courtroom spectators during her testimony. Cumulatively, the combined effect of these three errors "was clearly capable of producing an unjust result." R. 2:10-2.

R

eversed and remanded for a new trial. We do not retain jurisdiction.