STATE OF NEW JERSEY v. E.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.S.,

Defendant-Appellant.

____________________________________

June 20, 2014

 

Argued January 29, 2014 Decided

 

Before Judges Grall, Waugh, and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-710.

 

Philip Nettl argued the cause for appellant (Benedict and Altman, attorneys; Steven D. Altman and Mr. Nettl, on the brief).

 

Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

 

PER CURIAM

Defendant E.S. (Eric)1 appeals his conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); all involving his stepdaughter S.W. (Susan). We reverse and remand for a new trial.

I.

We discern the following facts and procedural history from the record on appeal.

Susan was born in February 1996. Her mother, N.S. (Nora), married Eric in July 1998. Between 1999 and 2003, Eric and Nora had four children of their own. The family resided in an apartment in Edison.

Beginning in 2007, members of Eric's family, including his parents and his brother's family, were living with them in their apartment. Cousins and other extended-family members stayed with them on an occasional basis. As a result, Eric, Nora, and all five children slept in one bedroom. Eric's parents slept in the other bedroom, and his brother and sister-in-law slept in the living room.

Susan testified that Eric began sexually abusing her around the time she was five or six years old, in approximately 2001 or 2002. She generally described incidents during which Eric touched her breasts, buttocks, and vaginal area. The only specific incident involving penetration, which is the basis of the aggravated sexual assault charge, is alleged to have occurred in late 2008. According to Susan, it was on November 28, 2008, the Friday after Thanksgiving, and was referred to as the Black Friday incident during the trial.2

Susan testified that Nora had promised to take her shopping that day. However, prior to leaving, Susan had to give Eric a back massage, while one of her sisters gave one to Nora. The massages took place in the bedroom.

According to Susan, after her mother fell asleep during her massage, Eric reached back with his hand and "massag[ed] my private spot, and my vaginal area." Susan testified that the touching occurred beneath her undergarments. Eric's finger was "[i]n [her] vaginal area." Susan stated that she did not tell her mother about the abuse because she did not want to cause trouble.

Susan also testified that Eric continued to sexually abuse her following the Black Friday incident. After one of those events, in February 2009, Susan told Nora that that Eric had touched her breasts. She asserted that Nora became angry and said she would get Eric out of the house.3 Although the back massages stopped, Susan testified that she felt like nothing changed.

Susan further testified that, about a week later, she approached one of her teachers, Aziza Hassan. When Hassan arrived at school in the morning,4 she found Susan in the classroom asking to speak with her. Hassan described how Susan then began to cry and had difficulty speaking. Hassan asked her if anything was going on at home, and Susan answered yes. Hassan testified that Susan composed herself enough to say she had been sexually molested. On cross-examination, however, Hassan admitted that she told the police that she had eventually asked Susan whether she had been sexually molested, and Susan replied that she had. Hassan subsequently helped Susan to make an anonymous call to a sexual abuse hotline at the then Division of Youth and Family Services (Division).

The following morning, Hassan sought clarification from Susan regarding the information she had related the previous day. Hassan asked Susan if she knew the definition of the word "rape," because Susan had used it during the first discussion. This appeared to upset Susan, and instead of answering Hassan, she wrote her response on several pieces of paper. Susan did not complete the notes, but placed the papers in her bag. In any event, Hassan did not see what Susan had written beyond a quick glance while Susan was writing.

The following day, after speaking to the school's principal and nurse, Hassan contacted both the South River Police Department and the Division to report the abuse allegations made by Susan. Jennifer Novak, a detective from the South River Police Department,5 and Suzanne Kowalski, an investigator from the Middlesex County Prosecutor's Office, went to the school in response to the report. They were accompanied by a detective from the Edison Police Department and a Division caseworker.

Susan was called to the office, but was allowed to return to class after she told the officers that nothing had happened. After Susan left the office, the principal produced the notes Susan had written in Hassan's classroom.6 They summoned Susan back to the principal's office and asked her about the notes. When she became upset, Novak told her that she "did nothing wrong." Susan then asked for her mother, and Nora was called.

Following further investigation, Eric was arrested and eventually indicted. He was tried before a jury on nine trial days between May 11 and 25, 2011. The jury found Eric guilty on each count. On February 2, 2012, the trial judge sentenced Eric to twelve years of incarceration on count one, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the endangering count into the second-degree sexual assault count and imposed a concurrent six-year term, also subject to NERA. This appeal followed.

II.

Eric raises the following issues on appeal:

I. The trial court should have granted a judgment of acquittal on Count 1, Aggravated Sexual Assault, at the end of the State's case, because no evidence of sexual penetration was presented. (raised below)

 

II. The trial court's instruction on the definition of "sexual penetration" was erroneous. (raised below)

 

III. Officer Novak's repeated attempts to offer her opinion about [Susan]'s credibility, even after being instructed not to do so, cost [Eric] a fair trial. (raised below)

 

IV. The trial court erred in permitting overly detailed fresh complaint testimony from Aziza Hassan, by allowing her to testify that she and [Susan] had discussed the definition of the word "rape." (raised below)

 

V. The State should not have been permitted to elicit prejudicial testimony about the notes [Susan] had written to Sister Aziza Hassan, when the note itself was inadmissible hearsay. (raised below)

 

VI. The trial court [committed] plain error in failing to include [Nora's] testimony in a fresh complaint jury instruction. (not raised below)

 

A.

We start our analysis with Eric's contention that the trial judge erred in denying his motion for a judgment of acquittal on the charge of first-degree aggravated sexual assault. He argues that the State failed to prove sexual penetration beyond a reasonable doubt, as required by N.J.S.A. 2C:14-2(a). The State asserts that there was sufficient evidence in the record to support that charge.

We apply the same standard as the trial judge in determining whether he erred in denying Eric's motion for acquittal at the end of the State's case. State v. Moffa, 42 N.J. 258, 263 (1964) (citing State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)); see also State v. Spivey, 179 N.J. 229, 236 (2004). A trial judge must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1.

More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

 

"An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with" a "victim [] less than 13 years old." N.J.S.A. 2C:14-2(a)(1). Sexual penetration is defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of the commission of the crime." N.J.S.A. 2C:14-1(c).

The issue before us is whether the State produced sufficient evidence of vaginal penetration. In State v. J.A., 337 N.J. Super. 114 (App. Div.), certif. denied, 169 N.J. 606 (2001), we construed the term "vaginal intercourse" found in N.J.S.A. 2C:14-1(c). We concluded that the Legislature intended the term "to be broader than intercourse in the vagina canal beyond the hymen." J.A., supra, 337 N.J. Super. at 120; see also In re M.T.S., 129 N.J. 422, 441-44 (1992) (concluding that the Legislature desired to broaden the definition of rape in reforming the sexual assault law). We determined that "penile penetration of the space between the labia majora or outer lips [came] within the concept of vaginal intercourse" under N.J.S.A. 2C:14-1(c). J.A., supra, 337 N.J. Super. at 120-21.

We have held that other sexual acts listed in N.J.S.A. 2C:14-1(c) constituting sexual penetration do not require actual insertion. See State ex rel. S.M., 284 N.J. Super. 611, 617 (App. Div. 1995) (concluding that fellatio does not require penetration of the victim's mouth); State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985) (holding that cunnilingus does not require that the actor's tongue be inserted into the victim's vagina), certif. denied, 104 N.J. 434 (1986); but see State v. Gallagher, 286 N.J. Super. 1, 15 (App. Div. 1995) (finding that sexual penetration did not occur because defendant's penis, although between the checks of the victim's buttocks, did not penetrate the victim's anus), certif. denied, 146 N.J. 569 (1996).

We reject Eric's argument that, because the statute speaks in terms of (1) "vaginal intercourse, cunnilingus, fellatio or anal intercourse . . . or [(2)] insertion of the hand, finger or object in the vagina or anus," the latter phrase cannot be interpreted in the same manner as the former in terms of the nature of the penetration. N.J.S.A. 2C:14-1(c) (emphasis added.) In addition to reading too much into the use of "or" in the statutory language at issue, Eric's argument ignores the following sentence, which applies to both: "The depth of insertion shall not be relevant as to the question of the commission of the crime." N.J.S.A. 2C:14-1(c). There is no reason to conclude that the Legislature intended to criminalize insertion of the penis into "the space between the labia majora or outer lips," but not the insertion of a finger or other object into the same location.

Nevertheless, there must be some amount of penetration. In that regard, we note that N.J.S.A. 2C:14-2(b) defines sexual assault as "an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." Sexual contact is defined as "intentional touching . . . , either directly or through clothing, of the victim's . . . intimate parts" for certain purposes. N.J.S.A. 2C:14-1(d). Intimate parts include "sexual organs" and the "genital area." N.J.S.A. 2C:14-1(e). Consequently, the mere touching of the genital area, even if directly rather than through clothing, does not constitute aggravated sexual assault, but is instead sexual contact.

Our task is to determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," there was sufficient evidence in the record from which "a reasonable jury could find . . . beyond a reasonable doubt" that there was penetration by "insertion" of Eric's finger "into" "the space between the labia majora or outer lips." Reyes, supra, 50 N.J. at 459.

The State argues7 that the following testimony by Susan supports such a finding:

And he was like massaging my private spot, and my vaginal area. And he just kept on touching it. It started to like really bother me. My mother was laying right there. The whole thing was very uncomfortable. This never happened when I was awake. Like he never touched me like when I was awake.

 

. . . .

 

Q. Let me stop you for a second. When he was doing this to you, was it -- did you have your underwear -- your undergarments on?

 

A. Yes.

 

Q. Was this over your underwear or under your underwear?

 

A. Under my underwear.

 

Q. When he was massaging you, touching you, as you just described, was he doing that in your private area?

 

A. Well, as I was sitting down, he was going like that, he was massaging up, like up, back and forth, and like that (indicating).

 

Q. That was --

 

A. In my vaginal area, yes.

 

Q. Where was his finger.

 

A. In my vaginal area.

 

Applying the applicable standard giving the State the benefit of all reasonable favorable inferences, we hold that Susan's testimony that Eric's finger was "in" her vaginal area was sufficient to satisfy the requirements of Reyes. Consequently, we conclude that the trial judge did not err in denying Eric's motion for a judgment of acquittal at the close of the State's case.8

B.

We now turn to Eric's contentions concerning trial error. He argues that his right to a fair trial was prejudiced by (1) the use of the term "rape" during Hassan's testimony, (2) the testimony concerning the notes on which Susan described the nature of Eric's conduct, and (3) Novak's repeated attempts to bolster Susan's credibility.

Our standard of review of a trial judge's evidentiary rulings is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citation and internal quotation marks omitted).

i.

We begin our discussion with Eric's contentions concerning Hassan's testimony with respect to the word "rape."

Hassan was called to testify to establish a fresh complaint by Susan. "The fresh-complaint rule allows witnesses in a criminal trial to testify to a victim's complaint of sexual assault." State v. Hill, 121 N.J. 150, 151 (1990). Such testimony is admissible for the limited purpose of rebutting the inference that the victim's initial silence was inconsistent with the later claims of abuse. Id. at 151-52.

Thus, the gist of the evidential circumstances is merely non-silence, i.e., the fact of the complaint, but the fact only. That she complained of a rape, or an attempt at rape, is all that principle permits, the further terms of her utterance (except as to identify the time and place with that of the one charged) are not only immaterial for the purpose, but practically turn the statement into a hearing assertion, and as such it is inadmissible.

 

[State v. Bethune, 121 N.J. 137, 146 (1990) (quoting 4 Wigmore on Evidence 1136 (Chadbourne, rev. 1972)).]

 

In order to ensure that the testimony only serves this limited purpose, "details of the offense should be confined to those minimally necessary to identify the subject matter of the complaint." State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 588 (1988).

When Hassan testified on direct that she asked Susan whether she knew what the word "rape" meant, defense counsel objected and requested a sidebar "for a clarification, for both of us." An extended discussion of the parameters of fresh complaint testimony followed, both at sidebar and after the jury was excused from the courtroom. Defense counsel argued that Hassan was not permitted to testify about the details of what Susan told her. He also argued that, because it was Hassan who had first raised the issue of sexual abuse, she was not an appropriate fresh complaint witness.

The judge held a Rule 104 hearing, during which Hassan testified that Susan told her during their first conversation that Eric "raped" her. Because she was uncertain whether Susan knew what the word meant, Hassan asked Susan about it the next day. Defense counsel cross-examined Hassan using the statement she gave to the police and established that Susan had denied that Eric had sex with her. He also established Hassan's understanding that there had been no penetration.

After the hearing, defense counsel again argued that Hassan was not really an appropriate fresh complaint witness because she was the one who introduced the issue of sexual abuse during her first discussion with Susan. He also argued, however, that if Hassan did testify, she should be subject to more extensive cross-examination because of contradictions in what Susan told her and what Susan said at other times.

The judge ruled that Hassan would be allowed to testify as a fresh complaint witness because she was someone whom Susan trusted enough to make a disclosure of sexual abuse. Although he disagreed with defense counsel that Hassan's testimony should be barred because she was the first to mention sexual abuse during her discussion with Susan, the judge stated his intention to charge the jury with respect to the implications of Hassan having mentioned sexual abuse first, using the model charge on fresh complaint.9 Finally, the judge told defense counsel that he would "have the complete opportunity to cross-examine this particular witness."

We find no abuse of discretion in the trial judge's decision to allow Hassan's testimony as a fresh complaint witness. There was sufficient testimony that Hassan was the sort of person a thirteen-year-old student would confide in under the circumstances. In addition, the fact that a teacher asked a crying child, who was seeking help and reluctant to verbalize her problem, questions about potential sexual abuse is not a per se basis for exclusion. The judge appropriately put the issue before the jury by giving the charge.

After the Rule 104 hearing, the prosecutor resumed direct examination and developed that Susan understood that "rape" was an "[u]nwilling sexual act" involving penetration. During his cross-examination, defense counsel established that Hassan asked Susan whether Eric "inserted anything into" her and that she responded "no."

Once it had been established that Susan was alleging some sort of sexual abuse, it would have been better for all concerned to avoid getting into more detail concerning what Susan told Hassan. The admission of fresh complaint evidence is "confined to those [details] minimally necessary to identify the subject matter of the victim's complaint." J.S., supra, 222 N.J. Super. at 257. The introduction of a potentially inflammatory word such as "rape" was particularly risky for the State, because it invited the very argument now before us, and for Eric, since it suggests penetration.

Nevertheless, our reading of defense counsel's objection to Hassan's testimony is that he sought to bar her testimony altogether on the theory that she was not a true fresh complaint witness. But if she was permitted to testify, he wanted to be able to cross-examine Hassan about her statement to the police that Susan denied any penetration, thereby rebutting any testimony by Susan that there was penetration. For that reason, we find no "clear error of judgment" in the trial judge's handling of the issue. Loftin, supra, 146 N.J. at 357 (citation and internal quotation marks omitted).

ii.

We next turn to the issue of the testimony concerning the notes written by Susan during her second discussion with Hassan. Eric argues the testimony about the notes raised an issue under State v. Bankston, 63 N.J. 263 (1973), in that it suggested to the jury that there was information on the notes supportive of the State's allegations that was not before them. That assertion finds some support in the fact that the jury asked to see the notes during its deliberations.

The State argues that its use of the notes was appropriate because their creation was relevant to Hassan's fresh complaint testimony and their use during the initial police interview with Susan demonstrated the steps taken during the investigation. While conceding that the notes contained inadmissible hearsay, the State points to the fact that they were not admitted into evidence and that the trial judge refused the jury's subsequent request to see them. The State further argues that Eric cannot claim that use of the notes was improper because defense counsel used them to impeach Susan's credibility with respect to her differing explanations of why she wrote them.

In Bankston, the Supreme Court held:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.

 

[Id. at 268-69 (internal citations omitted).]

See also Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004) (holding that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands . . . unavailability [of the declarant] and a prior opportunity for cross-examination.").

The Bankston Court added that, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271. "The common thread that runs through Bankston [and its progeny] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005).

On direct examination, Hassan testified that Susan wrote the notes during their second discussion to explain what happened because Susan was uncomfortable talking about what Eric had done to her, although Hassan conceded that she never read the notes or had them in her possession. As a result, she had no personal knowledge of their content. At trial, Susan gave testimony consistent with Hassan's explanation of the origin of the notes. However, when defense counsel cross-examined Susan, she admitted that she had told the police, in a sworn statement, that she had written the notes prior to speaking to Hassan, to give to her mother.

Novak testified that the principal gave her the notes, but only after Susan told the officers that there was no problem. Kowalski then showed them to Susan during the second interview, and Susan became upset. In response to the prosecutor's question to Kowalski about what she did with the notes when she received them, the following exchange ensued:

A: I then obtained this, and kept it.

[DEFENSE COUNSEL]: Objection, Judge.

A: We were presented with it, and it was verified.

 

[DEFENSE COUNSEL]: Objection. I object to whatever that means. It sounds like some type of conclusion, Judge, that she is not qualified to testify to.

 

THE COURT: But we heard the testimony from the author of that.

 

[DEFENSE COUNSEL]: She said "verifi-ed." No, we didn't hear -- When she says "verified," what does that mean, Judge? I think maybe, if she wants to maintain that particular linguistic description, that we need some proffer, as to what that means.

 

THE COURT: Okay.

Q: When you received that, what did you do with it?

 

[DEFENSE COUNSEL]: I think we need to lay a foundation outside of the presence of the jury.

 

THE COURT: Outside of the presence of the jury?

 

[DEFENSE COUNSEL]: I mean, just as a precaution, Judge.

 

THE COURT: Duly noted. You can move on.

. . . .

Q: When you received it, what did you do with it?

 

A: Presented it to [Susan].

Q: And how did [Susan] react? Physically, how did she react?

 

A: She broke down. She started crying. She was extremely nervous. She was requesting that her mother be there at this point.

 

[DEFENSE COUNSEL]: Objection, Judge.

THE COURT: Sustained.

We find no abuse of the trial judge's broad discretion concerning evidential issues with respect to his decision to allow the State to ask the witnesses limited questions about the notes. They were relevant, at least minimally, to establishing the chain of events from Susan's disclosure to Hassan, to the school's report to the authorities, and finally to the bringing of charges against Eric. We find no problems with the testimony given by Hassan or Susan concerning the notes.

Kowalski's testimony, however, appears to raise a Bankston issue. Taken by itself, her statement that the notes were "verified" can be read to suggest that Kowalski meant that the subsequent investigation verified the allegations against Eric contained in the notes. That would be a clear violation of the principles established by Bankston and its progeny.

However, we conclude that, taken in context, the better reading of Kowalski's testimony is that the police received the document from the principal, were told that it was something written by Susan, and verified her authorship when Kowalski showed it to her. That reading does not present a Bankston problem. Indeed, if the trial judge had acceded to defense counsel's reasonable request that the meaning of "verified" be clarified outside of the presence of the jury, the issue could have been resolved quickly.

Despite the trial judge's inaction, we conclude that Kowalski's testimony was harmless error. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. The harmless error standard requires that there be "some degree of possibility that [the error] led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Bankston, supra, 63 N.J. at 273. Taken in context, we do not find Kowalski's testimony sufficiently suggestive of a prohibited Bankston-type inference to warrant reversal of Eric's conviction.

iii.

Finally, we turn to Eric's argument with respect to Novak's testimony. He contends that, during her cross-examination, Novak made at least three separate statements supporting Susan's credibility, several of which occurred after the judge had admonished her not to express any opinion about Susan's credibility.

Novak was called by the State to testify about the interview with Susan after the school reported Susan's disclosures to the police. It appears that the purpose of her testimony was to explain what happened after the school contacted the police and how the investigation began, an issue of marginal relevance. Novak offered no testimony relevant to the specific charges against Eric, having not taken a statement from him or discovered any physical evidence during the investigation. Anything told to her by Susan was inadmissible hearsay, except to the extent it could be considered evidence of fresh complaint, and she was not offered for that purpose.

During his cross-examination, defense counsel sought to establish that Novak had no personal knowledge concerning Susan's allegations. This was a legitimate area of cross-examination, and because he was appropriately asking leading questions, he was entitled to a simple "yes" or "no," or if applicable "I don't know." The following initial exchange took place:

Q: -- You don't know whether or not she is lying to you? Personally. Do you?

 

A: Personally, no.

 

. . . .

 

Q: You don't know -- "yes" or "no" -- whether or not [Susan] was lying, do you?

 

A: I believe [Susan].

Defense counsel objected to the last response and the following discussion took place before the jury:

[DEFENSE COUNSEL]: Judge, I ask that that answer be struck. It is improper, and it is absolutely not responsive.

 

THE COURT: That is for the jury to decide.

 

[NOVAK]: Okay.

 

[DEFENSE COUNSEL]: But it is not for the jury to decide whether or not she believes somebody. Whether she believes somebody is irrelevant, Judge.

 

THE COURT: Whether this witness believes somebody is of no moment.

 

When defense counsel repeated his question, Novak did not respond as instructed by the judge. Instead, she responded: "I know what the results of the investigation were." Defense counsel again objected:

[DEFENSE COUNSEL]: I ask that she be instructed to answer the question, notwithstanding all of her training to the contrary.

 

THE COURT: Direct examination is where the person calling the witness gives the witness an opportunity to paint the picture, to just speak.

 

Cross-examination is for the purposes of trying to secure, from the witness, a "yes" or "no" response. So, the questions are broken down as leading questions, that require "yes" or "no" responses. Like, isn't it a fact. If you can do so. Listen, if you cannot answer his question directly, with "yes" or "no," look at him in his face and say, "I can't answer that." Then he'll ask you another question.

 

[NOVAK]: Okay.

 

THE COURT: If you can just answer "yes" or "no," it will be much appreciated. If you can't, tell him that.

 

Defense counsel then rephrased the question and again received another inappropriate response.

Q: Isn't it a fact, you don't know whether or not [Susan] was lying?

 

A: I believe [Susan].

Defense counsel objected again, suggesting that Novak was "purposely trying not to answer the questions" and that it "is prejudicial and inflammatory, and it becomes improper."

The judge had the jury leave the courtroom so that he could further explain the nature of cross-examination and the general limitations on the type of answers Novak could give to a leading question. After the judge's third instruction to the witness, she was asked: "You don't know whether or not [Susan] was lying, do you?" She responded that she did not.

Defense counsel then addressed Novak's earlier assertion that she knew the results of the investigation, in response to which Novak again started responding about her beliefs.

Q: Now, in this context, you said earlier, you know the results of the investigation? That's what you said; right?

 

A: Yes.

 

Q: Well, you know then, that there is no scientific, or any other form of corroboration, of anything she said? You know that, don't you?

 

A: I don't understand your question.

 

Q: When you say, "I know the results of the investigation"; right?

 

A: Yes.

 

Q: I suppose, you mean that, something was generated by the State, that was the demonstration of the truthfulness or corroboration of what she said. So, if you know the results of the investigation, in this case, you know the entire case is the uncorroborated statements of [Susan]. You understand that, don't you?

 

A: I understand that.

 

Q: Okay. So, when you said, I understand the results of the investigation, then you understand that, other than her unadorned, uncorroborated, unsupported, statements, there is no evidence in this case; right?

 

A: I believe that --

 

Q: No, I'm not talking about what you believe. We had a long, out of the presence of the jury conversation, with respect to the relevance of what you believe. In this courtroom, what you believe is irrelevant. You've been told that; right?

 

A: Yes, sir.

 

Q: So, let's not hear about that. I say it one more time. Her statements are completely uncorroborated, scientifically, or otherwise? They are naked, standing alone; is that correct?

 

A: Yes.

 

Novak's conduct is extremely problematic for several reasons. First, she specifically expressed her view about Susan's credibility and, by implication, her view concerning Eric's guilt. It is well established that "the mere assessment of another witness's credibility is prohibited." State v. Frisby, 174 N.J. 583, 594 (2002).

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness. The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness'[s] credibility has routinely been regarded as a decision reserved exclusively for the jury.

 

[State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991) (quoting Commonwealth v. Seese, 517 A.2d 920, 922 (Pa. 1986)), aff'd, 130 N.J. 554 (1993).]

 

In addition, police officers testifying as fact witnesses may not offer their opinions as to the defendant's guilt. See Frisby, supra, 174 N.J at 593-94; see also State v. Landeros, 20 N.J. 69, 74-75 (1955), cert. denied, 351 U.S. 966, 76 S. Ct. 1025, 100 L. Ed. 1486 (1956); Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 701 (2013).

Second, Novak's reference to having seen the investigation report considerably compounded the problem by raising a Bankston issue. A reasonable jury could easily conclude that the report contained additional incriminatory facts not before them.

We reject the State's argument that the difficulties resulting from Novak's continued refusal to give an appropriate response to defense counsel's questions constituted invited error. The invited error doctrine prevents "a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). Normally, it operates to bar a litigant from arguing on appeal that something requested or acquiesced to during the trial was error. See State v. A.R., 213 N.J. 542, 561-64 (2013) (holding that, despite the jury erroneously being given unfettered access to interrogation video recordings, it was invited error because defense counsel consented to it); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339-42 (2010) (finding invited error when counsel stated there was no objection to the opposing party moving certain, otherwise inadmissible, documents into evidence). In this case, defense counsel repeatedly objected and sought assistance from the trial judge, which was not always forthcoming and was certainly not as forceful as it should have been.

The question before us is whether Novak's conduct warrants reversal of Eric's convictions, i.e., whether "it is of such a nature as to have been clearly capable of producing an unjust result," R. 2:10-2, and whether there is "some degree of possibility that [the error] led to an unjust verdict," in which the "possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached," Bankston, supra, 63 N.J. at 273.

We conclude that a reversal is warranted under these circumstances. In response to defense counsel's objection to Novak's first reference to her belief in Susan's truthfulness, the judge stated that it was "for the jury to decide" and then remarked that Novak's belief as to Susan's truthfulness was "of no moment." However, he did not strike the answer, as defense counsel had requested, nor did he specifically instruct the jury to disregard the testimony. Given the clear impropriety of Novak's testimony, the judge was required to take stronger action than merely saying that the witness's belief was "of no moment."

Although not requested by defense counsel, the judge also failed to strike Novak's subsequent inappropriate responses concerning her belief in Susan's honesty and her reference to knowing the results of the investigation. The judge had a duty to take control of the situation at a time when defense counsel was clearly seeking his intervention with respect to a witness who was patently not following the judge's own, repeated instructions that she respond "yes," "no," or "I don't know."

Because Susan was the only witness who testified to the nature of Eric's conduct, and there was no forensic evidence to confirm or support her assertions, Susan's credibility was the determinative factor at the trial. The defense was based on assertions that Susan was not truthful and that she fabricated her accusations against Eric.

Nora testified that Eric was strict with respect to the children's school work and grades, including Susan's. She related that, shortly before Susan's birthday in 2008, Eric and Susan had a disagreement about Eric's imposition of restrictions on Susan's outside activities after her grades were received. According to Nora, Susan responded to Eric saying: "You're going to see what miserable is."

Defense counsel also attacked Susan's credibility by pointing out inconsistencies between her trial testimony and her statements to others. For example, Susan testified that she wrote the notes when she was speaking with Hassan on the second day, but she had told the police that she wrote them for her mother. There were also testimonial conflicts with respect to when Susan first made any sort of disclosure to her mother and the nature of the disclosure.

The jury's deliberations in this case took several days, a substantial portion of which was taken up by reading back the testimony given by Susan and Nora, as well as the jury charge. The jury also requested items that were not in evidence, including the taped-recorded statements given to the police by Susan and Nora and the notes prepared by Susan. The jury's requests make it clear that they were focused on the issue of credibility. The request for items not in the record strongly suggests that the jury believed that those items would help them in that endeavor.

Under the circumstances of the case, in which the credibility of the complaining witness was at issue and largely determinative of the outcome of the trial, we conclude that the repeated testimony by a police officer that she believed Susan, at least in part because she knew what the results of the investigation were, raises "a reasonable doubt as to whether . . . the jury [was led] to a result it otherwise might not have reached." Bankston, supra, 63 N.J. at 273. Consequently, we are constrained to reverse the convictions on appeal and remand to the Law Division for a new trial on all counts of the indictment.10

Reversed and remanded.

 

 

 

1 We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.

2 Nora testified that Black Friday was the day after Christmas, which was also a Friday.

3 Nora testified that Susan previously told her that she did not want to do backrubs anymore, but she did not mention the touching of her breasts until February 17.

4 Although Hassan testified that it was a Monday, we conclude that it was Tuesday, February 17, 2009, the day after the celebration of Presidents Day. We do so based on the fact that the police interviewed Susan on February 19, two days after her first discussion with Hassan.

5 The school was located in South River. The alleged offenses took place in Edison.

6 According to Hassan's testimony during a Rule 104 hearing, after Susan lost the notes, another teacher found them and gave them to the principal.

7 We reject the State's argument that there was also evidence of anal intercourse. First, that issue was not charged to the jury. Second, during her summation, the prosecutor told the jury that Susan testified that "his hands and his penis [were] on her buttocks area, on the outside." That statement comports with our reading of the record that there was no allegation of penal penetration of the anus. See Gallagher, supra, 286 N.J. Super. at 15.

8 We find no merit in Eric's contention that the trial judge gave an erroneous charge on the issue of penetration. The charge as given was based on the model charge and is fully consistent with our interpretation of the term "penetration" in N.J.S.A. 2C:14-1(c) in light of J.A., as discussed in detail above. Nevertheless, at the retrial, the judge should tailor the charge more specifically to the factual and legal questions before the jury.

9

You may also consider whether the complaint was volunteered by (name) or whether it was the result of interrogation. If you find that (name) made the complaint after being questioned, you may consider what prompted the questioning, whether the questions were in response to some conduct, emotional or physical condition, statement or pattern of behavior of (name), or whether they were initiated by the questioner without any provocation. You may also consider the nature and extent of the questions themselves and any motive on the part of the person who asked them in determining whether the complaint was truly that of (name) or was the product of suggestion by others.

 

[Model Jury Charge (Criminal), Fresh Complaint (2007).]

 

10 At the retrial, Nora should be listed as a fresh complaint witness, assuming she testifies in that capacity.