STATE OF NEW JERSEY v. C.D.

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NOT FOR PUBLICATION WITHOUT THE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.

C.D.,

Defendant-Appellant.

___________________________________

August 12, 2015

 

Argued October 8, 2014 Decided

Before Judges Fuentes, Ashrafi and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0459.

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

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

On May 23, 2008, a Union County Grand Jury returned indictment number 08-05-00459-I charging defendant, C.D., with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second degree sexual assault, N.J.S.A. 2C:14-2b, and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The indictment alleges that between October 26, 2002 and December 31, 2007, defendant committed one or more acts of sexual penetration upon his stepdaughter R.G.R. (Robin),1 a child born in 1997.

Before this matter was presented to a jury, the court heard argument and ultimately granted the State's motion to admit as evidence at trial, under the standards established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the results of a scientific test that revealed Robin tested positive for chlamydia when she was ten years old. Thereafter, the case was temporarily reassigned to a different judge who heard defendant's motion to suppress the videotaped statement Robin gave to a detective from the Union County Prosecutor's Office pursuant to State v. Michaels, 136 N.J. 299 (1994). This judge also heard the State's cross-motion to admit at trial the same videotaped statement under N.J.R.E. 803(c)(27). The motion judge conducted an N.J.R.E. 104 hearing and ultimately denied defendant's Michaels motion and granted the State's hearsay exception motion under the "tender years" doctrine codified in N.J.R.E. 803(c)(27).

Thereafter the case was permanently reassigned to the judge who originally decided the State's Frye motion. This judge managed the case to finality, including the sentencing hearing. Before the start of trial, the State moved to permit Robin to testify via a closed-circuit television as provided in N.J.S.A. 2A:84A-32.4. To meet the standards codified by the Legislature in N.J.S.A. 2A:84A-32.4(b), the State submitted a report authored by the child's treating psychologist.2 In response, defendant a filed a cross-motion seeking the court order Robin to submit to an independent psychological examination. The trial judge granted the State's motion and denied defendant's cross-motion.

However, the judge gave defendant the choice to waive his presence in the courtroom, thereby obviating the need for Robin to testify via a one-way closed-circuit television feed from the judge's chambers. At the time of trial, defendant availed himself of the judge's offer and absented himself from the courtroom not only during Robin's testimony in open court, but also while the prosecutor played to the jury the videotaped statement Robin gave to the detective.

The trial began on November 3, 2011, and continued for seven more non-sequential days, ending on November 18, 2011, when the jury returned a unanimous verdict finding defendant guilty on all counts. On July 20, 2012, the trial judge sentenced defendant to an aggregate term of eighteen years, with an eighty-five percent period of parole ineligibility, and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In this appeal, defendant argues the trial court committed reversible error by: (1) granting the State's motion to admit the test that revealed Robin had chlamydia; (2) failing to exclude the videotaped statement Robin gave to the detective from the Prosecutor's Office, in violation of the standards the Supreme Court established in Michaels; and (3) denying defendant's motion to compel Robin to submit to an independent psychological examination, consequently violating his constitutional rights to a fair trial. We reject these arguments and affirm.

We derive the following facts from the record developed before the trial court.

I

Robin was born in 1997. Her mother M.G. and her biological father divorced in 1999. Robin does not have any memories about living with her biological father. The same year her parents divorced, her mother began dating defendant. M.G. and defendant were married in 2002, when Robin was five years old. The events that generated the criminal investigation that ultimately resulted in defendant's conviction came to light in 2008. Robin's fifth grade teacher assigned her students the task of keeping a "Do Now Journal" as a means of promoting the prompt completion of schoolwork. The teacher described the "Do Now Journal" at trial as,

a journal that the students, at the time, would write in. The first thing they did in the morning while they were unpacking, getting together, I would have an assignment or . . . a problem for them to write in and they would do it in their do now.

[(Emphasis added).]

The specific topic the teacher directed the students to write about on January 17, 2008, was "How a small child shows courage." After identifying and authenticating Robin's 2008 "Do Now Journal," the teacher read aloud to the jurors the passage Robin wrote addressing this topic

[J]3and [N] are not friends today. I don't know why. [E] and [JM] fought yesterday right near the soda machines. I saw [JM] when she left the building. My news. My grandma's doing well, but I have a thing to tell you please keep secret. My stepfather sexually abused me since I was 5 years old. I know it is affecting me in class. I get scared when I sit next to a boy, except [T], because we are kind of brother and sister. I get frightened so that is why I don't want to sit next to [H].

[(Emphasis added).]

At this point, the trial judge interrupted the prosecutor's direct examination of the teacher and gave the jurors instructions explaining the underlying basis and limitations of the "Fresh Complaint Doctrine." The judge explained, "[t]he law recognizes people might assume anyone subjected to a sexual offense would complain within a reasonable time to someone who she . . . would ordinarily turn to for sympathy." He also emphasized that "[a] fresh complaint is not evidence that the sexual offense actually occurred or that the person making the complaint is credible."4 The prosecutor resumed his direct examination of the teacher immediately after the judge concluded giving these instructions to the jury.

In response to the prosecutor's question, the teacher explained it was her practice at the time to read what the children had written in their "Do Now Journals" "every Friday" after the students had left for the day. The students had possession of the journals the other four days of the school-week. The teacher immediately reported Robin's disturbing journal entry to the school principal, who in turn notified the local police department and the Division of Youth and Family Services (Division), the State agency responsible for investigating allegations of child abuse.5

Later on that same day, Union County Prosecutor's Office Detective Sofia Santos interviewed Robin about the statement she had written in her "Do Now Journal." Detective Santos conducted the interview in a room at the Prosecutor's Office equipped with concealed video/audio recording equipment. The interview was video/audiotaped from start to finish, and the audio record was also subsequently transcribed. The video/audiotape recording of the interview was shown to the jurors and a DVD copy was included as part of the appellate record.

Robin, then ten years old, appeared apprehensive and reluctant to talk to Detective Santos about the subject matter of her journal entry. She answered the Detective's questions in a barely audible voice, many times merely nodding her head in lieu of actually speaking. She referred to defendant as "my dad," although she clearly indicated that her "real dad lives in Florida." After confirming the details of her family structure, Detective Santos began asking Robin about the reasons she was brought to the Prosecutor's Office that evening

Q. Do you know why you're here today?

[ROBIN] My mom told me that somebody said that I had sexual abuse. I don't know why?

Q. Your mom said what?

[ROBIN] That somebody called her for D.,D,D,Y,S, something like that.

Q. Okay.

[ROBIN] And I don't know why.

Through Detective Santos' queries, Robin revealed how defendant began touching her in a sexually inappropriate manner when she was five years old. The sexual abuse that began at age five, with defendant touching with his hands her breasts, buttocks, and vaginal area, over and under her clothes, escalated to vaginal intercourse by the time she was ten years old. Detective Santos was able to question Robin about these subjects through the use of anatomically accurate drawings.

Robin also told Santos the molestation always occurred when defendant was alone in the house with her because her mother was working and her maternal grandmother was undergoing chemotherapy treatment at Memorial Sloan Kettering Cancer Center in New York City. Robin used her grandmother's chemotherapy treatment appointments as a point of reference to determine the last time defendant sexually assaulted her. She also described, in graphic detail, how defendant engaged in vaginal intercourse with her by having her on top of him while they were both nude from the waist down.

Robin claimed to know the difference between the truth and a lie. She also stated she had been telling "good lies" all of her life. She gave the following explanation of what she considered to be "a good lie"

I don't tell lies. I tell a good lie because I've been lying about that to my mother for years. I always cry for no reason. She doesn't understand so I lie to her. I tell her no I'm crying for no reason. I'm okay. Because, I've been telling that same thing. My teacher see it so I just lie because of that just so that I can, could keep people happy. I don't like making people cry.

The interview began on Friday, January 18, 2008, at 8:08 p.m. and ended at 8:50 p.m.

On January 19, 2008, the day following the interview with Detective Santos, medical staff of the Children's Hospital at Newark Beth Israel Medical Center (Beth Israel), conducted a complete physical examination of Robin, including taking blood and urine samples that were tested for the presence of sexually transmitted diseases. The State presented the testimony of Dr. Patricia Morgan-Glenn, who was, at the time of trial, the Medical Director of the Child Maltreatment Section and Pediatrics at Levine Children's Hospital in Charlotte, North Carolina. Her responsibilities were to "perform medical evaluations for children who are suspected victims of child abuse . . . [including] physical abuse, sexual abuse, and neglect."

Dr. Morgan-Glenn was the Medical Director at Beth Israel from July 1999 to August 2008. She was responsible for performing medical evaluations of children who were suspected of being victims of physical and sexual abuse, and performed inpatient consultations for patients who were admitted to the hospital. Dr. Morgan-Glenn testified she sees approximately 250 cases involving allegations of child sexual abuse per year in North Carolina. Dr. Morgan-Glenn examined Robin at Beth Israel's emergency room on January 19, 2008. After consulting with the emergency room staff physician, Dr. Morgan-Glenn scheduled a follow-up appointment for a complete physical examination on January 24, 2008.

Robin attended the examination as scheduled. Dr. Morgan-Glenn made clear that she did not discuss the nature of the allegations with Robin before the examination because "[w]e found that it reduces trauma to have as few interviews as possible, as few histories as possible." She examined Robin "from the top of [her] head to the tips of [her] toes." She also conducted a "general urinary" or "GU" examination. At the prosecutor's request, Dr. Morgan-Glenn gave the jurors the following explanation of how this examination is performed

The child is placed on her back and their knees are bent and legs apart. Sometimes we use heal rests or stirrups to help the child feel a little bit more comfortable, and make sure their knees and legs are as far apart as possible. Sometimes we don't have to, necessarily, use those.

Q. And what was the purpose of having [Robin] in that position?

A. It just gives us the best visualization of the genital area.

. . . .

Q. What were the findings of external genital examination?

A. There was no evidence of any bruising or redness, scarring, tears, or any other signs of trauma.

. . . .

An internal exam was not done.

. . . .

Q. Did you see any tears, transections, healing scars, or anything, whatsoever, when you opened the labia, beyond the labia majora or minora?

A. I did not see any trauma or vaginal discharge.

The remaining aspects of this gynecological examination also failed to reveal any signs of trauma or sexual activity. Based on this examination, Dr. Morgan-Glenn opined that at the time of this examination on January 24, 2008, Robin had reached puberty. Dr. Morgan-Glenn also reviewed the results of the laboratory analysis of Robin's blood and urine collected by the emergency room medical staff at Beth Israel on January 19, 2008. The lab results indicated Robin had tested positive for chlamydia. Dr. Morgan-Glenn testified that the laboratory that tested Robin's blood and urine used the "Nucleic Acid Amplification Test, also called NAAT."

Dr. Morgan-Glenn testified that the NAAT does not use a "culture." She explained it was "common practice" at the time to use the NAAT "as a screening test and see if the child had any infection, and then we could always repeat the test or have a culture done at a later date." If the child tested positive for chlamydia, she would be "immediately" told to return for another "examination, evaluation, and prior to any treatment we would repeat the tests."

As part of her physical examination, Dr. Morgan-Glenn noticed that Robin's hand was bandaged. When Dr. Morgan-Glenn removed the bandage, she noted stiches and scarring. Robin had "sustained a laceration or a cut on the palm of her [left] hand while using [a] knife and so she received stiches." Before her testimony at trial on November 3, 2011, Dr. Morgan-Glenn had testified at a N.J.R.E. 104 hearing conducted on September 4, 2009. She testified in greater detail about the injury to Robin's left hand at that hearing. The child had received stiches to treat the laceration on January 4, 2008 and was also prescribed antibiotics to prevent infection.

The prosecutor asked Dr. Morgan-Glenn if she recommended that Robin receive additional tests after her January 24, 2008 examination. Dr. Morgan-Glenn gave the following answer

Typically, if we have a child who has a positive result we will repeat the result and we'll make sure that we test for all other sexually transmitted infections. She had actually had most of her STI testing done so I didn't have to repeat those or obtain those, but I did repeat the chlamydia testing.

Q. And when you said positive, there was a positive - - past positive chlamydia result for the emergency room. Is that correct?

A. Yes, from January 19, 2008.

. . . .

Q. Do you know what the result was of the second LabCorp test as it relates to chlamydia?

A. Yes. It was negative.

Q. Dr. Morgan-Glenn, could you just explain briefly what chlamydia is?

A. Chlamydia is a type of bacteria that causes one of the most common sexually transmitted infections. You can have symptoms such as a discharge from the vagina or from the penis, or problems going to the bathroom, urinating, or you may not have any symptoms at all.

Q. How common is it for an adolescent or pre-adolescent to have symptoms from chlamydia?

A. Not frequently common that they have symptoms. Most patients are without symptoms, or . . . asymptomatic.

Q. And did [Robin] report any symptoms as related to chlamydia?

A. She did not report any symptoms to me but she did report to the emergency department that she had had some occasional vagina[l] discharge.6

Robin's mother M.G. corroborated her daughter's testimony with respect to the number of times defendant was left alone with Robin during the five-year period she claimed the sexual abuse occurred. M.G. testified her work schedule required her to spend long hours away from her home. From 2002 to 2004, M.G. estimated she worked an average of fourteen to sixteen hours a day. She also confirmed Robin was in defendant's exclusive care during the summer of 2007, when her mother was diagnosed with lung cancer, requiring chemotherapy treatments at Sloan Kettering.

M.G. also testified that in September 2007, she discovered antibiotic tablets in the glove compartment of defendant's car. When she asked defendant about it, M.G. said he told her it was "for his skin." M.G. did not believe defendant's claim that the medication was for his skin, noting he had "flawless skin." When she pressed defendant to tell her the truth, M.G. testified defendant told her, "Chlamydia causes sterility and we have not been pregnant since 2003." M.G. noted she had this conversation with defendant the day before her mother was scheduled to undergo a surgical procedure to have her lungs removed. At around the same time, M.G. was using defendant's computer to pay household expenses, as she did customarily, when she discovered defendant had visited websites discussing the effects chlamydia has on children.

In February 2008, a month after Robin first revealed the sexual abuse by defendant, M.G. discovered defendant had been having an affair with another woman. The paramour, M.U., testified at trial and acknowledged she had had a sexual relationship with defendant. She also acknowledged testing positive for chlamydia.

The State called as a witness defendant's physician, Dr. Ann Marie Garcia. In her treatment notes for July 9, 2007, Dr. Garcia noted defendant was "[c]oncerned as [his] girlfriend [was] diagnosed with Chlamydia." Dr. Garcia also noted defendant was "noncompliant with labs." When asked by the prosecutor to explain what she meant by this entry, Dr. Garcia responded, "[t]hat means he didn't do labs, blood tests that I prescribed before." Despite his failure to undergo the required testing, Dr. Garcia prescribed defendant "azithromycin" a form of antibiotic, "[j]ust because he was concerned about the Chlamydia."

Defendant did not present any witnesses nor testify at trial in his own defense.

II

Defendant now appeals raising the following arguments

POINT I

THE CHLAMYDIA TEST RESULTS SHOULD NOT HAVE BEEN ADMITTED, BECAUSE THEY WERE NOT SCIENTIFICALLY RELIABLE. (Raised Below)

POINT II

THE STATE'S MOTION TO PERMITS [sic] CLOSED-CIRCUIT TESTIMONY BY R.R. SHOULD HAVE BEEN DENIED IN ITS ENTIRETY. (Raised Below)

POINT III

THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT AN INDEPENDENT PSYCHOLOGICAL EVALUATION OF R.R. PRIOR TO DECIDING THE STATE'S MOTION FOR CLOSED CIRCUIT TESTIMONY. (Raised Below)

POINT IV

THE STATEMENT OF R.R. WAS TAINTED BY THE INTERVIEWER. (Raised Below)

We reject these arguments and affirm. We address first defendant's argument attacking the reliability of the NAAT as a means of diagnosing chlamydia.

Before the start of trial, the State filed an in limine motion asking the court to determine the admissibility of the NAAT as a scientifically reliable means for diagnosing chlamydia. The trial judge conducted a N.J.R.E. 104 hearing at which the State presented as expert witnesses Dr. Morgan-Glenn, Dr. James Oleske, a physician who specializes in immunology and sexually transmitted diseases, and microbiologist Trinidad Chan, supervisor at Beth Israel's laboratory where the first NAAT was conducted, as an expert in microbiology testing.

Dr. Morgan-Glenn was the State's first witness at the N.J.R.E. 104 hearing. She testified that the NAAT was medically accepted to administer to children when testing for chlamydia. NAAT has been the most reliable test for sensitivity and screening purposes and is the most commonly used test for detecting chlamydia. Addressing the specific facts in Robin's case, Dr. Morgan-Glenn opined the reliability of the first test's positive outcome for chlamydia was not undermined or impeached based on the negative result in the second test. Dr. Morgan-Glenn explained the results of the second test may have been negative due to Robin's unrelated use of antibiotics earlier that month.

Dr. Oleske agreed with Dr. Morgan-Glenn's analysis and ultimate medical opinion. He opined the antibiotic Robin took earlier that month for an unrelated laceration of her left hand likely accelerated the time within which the body eradicated the chlamydia bacteria. According to Dr. Oleske, without any treatment, a person would lose the chlamydia organism in a matter of weeks; it would resolve on its own and become asymptomatic.

Although defendant did not call any witnesses at trial, he called as an expert witness in this N.J.R.E. 104 hearing Huizhou Fan, M.D., Ph.D., an Assistant Professor in the Department of Physiology and Biophysics at the University of Medicine and Dentistry of New Jersey (UMDNJ) Robert Wood Johnson Medical Center, as an expert in chlamydia research. Dr. Fan testified that the rates of false positives were much higher in children. In a test population of children with a prevalence of 1%, the chance of a false positive would be 53.5%. According to Dr. Fan, the Center for Disease Control recommended a second confirmatory test for children under the age of sixteen who were victims of sexual assault. Nevertheless, Dr. Fan opined that while the predictive value is lower with children, the test had the same accuracy.

Dr. Fan identified three causes of false positive test results, all of which would be a rare occurrence: "(1) possible contamination occurring during sample collection and processing; (2) presence of DNA, the sequence that could be amplified with primers of the SA System even though the DNA is non-chlamydia; or (3) instrumental error[.]" After reviewing the testing protocol followed in this case, Dr. Fan found no evidence of contamination or instrument error, and no evidence, either way, that the primer had falsely or inappropriately attached to DNA that was not chlamydia. Dr. Fan also conceded the package insert provided by the manufacturer of NAAT indicated that for every one hundred infected people tested, ninety-four would be correctly diagnosed; for every one hundred people not infected, less than three would be wrongly diagnosed. Ultimately, in response to the trial judge's question, Dr. Fan acknowledged physicians uniformly accept the NAAT as a reliable test for determining whether their patients were infected with chlamydia.

The trial judge found the NAAT performed based on the urine sample collected from Robin on January 19, 2008, was scientifically reliable and generally accepted by the medical community for detecting chlamydia in children. The judge explained his ruling a memorandum of opinion dated October 25, 2010.

Mindful of this evidential record, we will now review the trial court's legal determination. Although in 1993 the United States Supreme Court abandoned the general acceptance standard in Frye, supra, in favor of a more relaxed scientific reliability standard, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), codified in Fed. R. Evid. 702, the test in New Jersey continues to be whether the scientific community generally accepts the reliability of the proffered evidence. State v. Chun, 194 N.J. 54, 91, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v Harvey, 151 N.J. 117, 170 (1997). General acceptability of a particular scientific methodology can be established in three ways

by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance.

[Harvey, supra, 151 N.J. at 170 (quoting State v. Kelly, 97 N.J. 178, 210 (1984)).]

General acceptance does not require a unanimous belief in the absolute infallibility of the technology or methodology at issue. Chun, supra, 194 N.J. at 91-92. The proponent of the evidence must prove that the technology is a "non-experimental, demonstrable technique[] that the relevant scientific community widely, but perhaps not unanimously, accepts as reliable." Harvey, supra, 151 N.J. at 171.

We accept the reliability of the NAAT for the same reasons expressed by the trial judge. The NAAT is a generally accepted diagnostic test that is regularly used and relied upon by the medical community. Under ordinary conditions, it may be preferable, as suggested by Dr. Fan, to conduct a second test to confirm the reliability of the results of the first test. Here, by the time Dr. Morgan-Glenn ordered the second test, Robin had taken a seven-day regimen of antibiotics as a prophylactic measure to prevent an infection from developing from the unrelated injury to her left hand. In our view, the trial judge was entitled to rely on the opinions of Drs. Morgan-Glenn and Oleske in finding this event did not impugn the reliability of the NAAT in this case.

Defendant next argues the State did not meet its "burden of proving the necessity of closed-circuit testimony to avoid severe emotional damage to [Robin]." We disagree. In addressing this issue, we emphasize that Robin ultimately testified in open court because defendant decided to accept the trial judge's offer and absent himself from the courtroom during her testimony. Defendant also opted not to be in the courtroom when the State played the videotape of her interview with Detective Santos recorded on January 18, 2008.

The State may seek leave of the court to permit a child who is under the age of sixteen at the time of trial to testify via closed circuit in lieu of actually appearing in the courtroom, in cases involving the "prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, human trafficking involving sexual activity, child abuse, or in any action alleging an abused or neglected child." N.J.S.A.2A:84A-32.4(a) and (b). To approve this request, the court must find (1) the witness is sixteen years old or younger, and (2) there is a substantial likelihoodthat the witness would suffer severe emotional or mental distress if required to testify in open court. N.J.S.A.2A:84A-32.4(b) (emphasis added).

The State is required to establish this two-prong test by clear and convincing evidence. State in the Interest of B.F., 230 N.J. Super. 153, 159 (App. Div. 1989). If the court finds the State met its burden of proof as to these two factors, "[t]he order shall be specific as to whether the witness will testify outside the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact of the presence of each." Ibid. Here, the State also sought to have Robin testify outside defendant's presence.

The first prong is uncontested. Robin was thirteen years old at the time this case came to trial. The court conducted an N.J.R.E.104 hearing to permit the State to present evidence to satisfy the burden of proving, by clear and convincing evidence, that Robin would suffer severe emotional or mental distress if required to testify in open court in defendant's presence. Robin was the State's first witness. She testified in the trial judge's chambers. In addition to the judge, the prosecutor and defense counsel were also present. The proceedings were transmitted via a closed circuit television feed into the courtroom where defendant was able to watch and listen in real-time. Defendant and his attorney were also in continuous contact throughout the hearing through the use of their cellular phones.

Robin testified that if she were compelled to testify in open court in defendant's presence, she would "be very frightened," experience "distress, and probably get depressed again." She was scared that seeing him again would trigger "memories and flashbacks." When asked to explain what she meant by "flashbacks," Robin responded, "[m]emories of when I was sexually assaulted by my stepfather." The hearing took place on July 26, 2011. Approximately eight months earlier, in November 2010, Robin was hospitalized at Beth Israel for one week for "suicidal ideations." When asked to elaborate, Robin stated, "I was going to hang myself . . . [b]ecause I was angry . . . I was angry about the abuse and how it affected me." This prompted the following colloquy

Q. And when you say abuse, can you just describe what that abuse is?

A. Sexual abuse that happened between my stepfather and I for five years.

Q. And in terms of your whole life, how would you classify that week you spent at Beth Israel at the hospital?

A. Very depressing and kind - - it scared me a lot and woke me up.

Q. If you were required by the judge to testify in front of [defendant], can you explain how that would compare to the week that you spent in the hospital?

A. It would probably bring me back to the hospital because of all the anger and et cetera that I would feel from after seeing him.

Q. Can you explain the mechanics of how that would happen?

A. I would probably over think a lot of things and when I'd get home, I'd cry, et cetera, and it would take me a long time to get over the fact that I saw him.

Q. One of the words that you used with Dr. Fawn [the psychotherapist] was the word creepy. If required to testify in front of [defendant], could you explain to the judge what you mean by creepy?

A. (Indiscernible) creepy because it's - - like, I let - - he molested me for five years and I haven't seen him since then, so a lot of bad memories and et cetera will come back.

Q. And when you say bad memories, bad memories about what?

A. The assault.

. . . .

THE COURT: Do you think if given the choice between testifying in open court or testifying in chambers, you like the idea of testifying in chambers?

Yes.

THE COURT: Does that mean you - - I understand that you - - that that's your preference?

Yes.

THE COURT: Does that mean you couldn't testify in open court?

A. I could, but I wouldn't say it would be - - I'd say it would be a lot harder, but it would be - - also it would be - - my speech wouldn't be as clear and I'd be a lot more nervous.

. . . .

THE COURT: . . . And if you were on the witness stand and I have three or four sheriff's officers in my courtroom in a criminal case, where if the defendant, you know, moved away from the table, they would immediately stop that from happening, so there would be, you know sheriff's officers here, your family would be here, the defendant would be sitting at the far table, not the closest table to you. I see many times - - I had a case last week where a young lady had to testify, a little bit older than you, but not much, and she basically took the chair and turned it this way, so she was looking right at the jury, you know, and not at the defendant.

Under those circumstances, would you be able to testify and answer questions in front of the jury and in front of the defendant in open court, where you could tell the jury what happened to you?

A. I wouldn't say that. I would still feel really kind of - - I'd say unsafe. Not doubting that your sheriff's officers aren't totally guarding, et cetera. It's just personal it would be a lot for me to grasp.

Psychotherapist Dr. Fawn McNeil-Haber began treating Robin shortly after the sexual abuse allegations were reported to law enforcement on January 18, 2008. In her report dated January 8, 2011, Dr. McNeil-Haber indicated Robin had received "sexual-abuse individual and family therapy since January 2008 to address the long-term sexual abuse that she was subjected to by her stepfather."7 Robin has been diagnosed as suffering from Depressive Disorder, Dysthmymic Disorder,8and Post-traumatic Stress Disorder.

With respect to her ability to testify in open court in defendant's presence, Dr. McNeil-Haber corroborated Robin's testimony, describing Robin's anxiety at the prospect of having to see defendant, even under the controlled environment of the courtroom. According to Dr. McNeil-Haber, Robin told her that seeing defendant again "would be traumatic" and stay with her "forever." When Dr. McNeil-Haber asked Robin to explain what she meant by "depressed", the child told her, "very sad . . . [it] would be 10 times worse than the worst time I was depressed." Under these circumstances, Dr. McNeil-Haber opined that if Robin was compelled to testify in open court in defendant's presence, she may become overwhelmed by her anger, shutdown, and be unable to complete her testimony. She thus recommended that Robin "be allowed to testify via closed circuit television."

The State also presented the DVD of Robin's video/audiotaped statement to Detective Santos, and e-mails between defendant and Robin, when defendant was in Haiti for an extended period of time.9 After considering this evidence, the trial judge granted the State's motion. The judge explained the basis of his ruling in a memorandum of opinion dated August 26, 2011.

In Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the United States Supreme Court upheld the constitutionality of a Maryland statute similar to N.J.S.A. 2A:84A-32.4. In State v. Crandall, 120 N.J. 649, 651 (1990), our Supreme Court relied on Craig to uphold the constitutionality of N.J.S.A. 2A:84A-32.4. Defendant nevertheless argued before the trial judge, and continues to argue here, that the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), changed the legal landscape and established a broader zone of protection for a defendant's right to confront his or her accuser in open court. Stated differently, defendant argues Crawfordimplicitly overruled Maryland v. Craig. We disagree.

A defendant's right to confront the witnesses against him or her is guaranteed by both the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. However, that right is not absolute. Craig, supra, 497 U.S.at 844, 110 S. Ct.at 3163, 111 L. Ed. 2d at 677. As the Court explained over 120 year ago

The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

[Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339 39 L. Ed. 409, 411 (1895).]

The Confrontation Clause requires the witness (1) to be physically present, (2) to affirm to tell the truth under penalty of perjury, (3) to submit to cross-examination, and (4) to permit the jury or the trier of fact to see his or her demeanor as he or she testifies. State v. Smith, 158 N.J.376, 384-85 (1999). The constitutional concerns animating the Supreme Court's decision in Crawford are not implicated here.

As the Court made clear in Crawford, the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. In Crawford, the principal evil the Court sought to prevent was the corrosive effect the admission of hearsay evidence has on a defendant's right to confront the witnesses against him. As the Court explained, "[t]he constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192-93. Only "testimonial" statements trigger a defendant's Confrontation Clause rights. See id. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 192 (explaining the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination").

By contrast, the manner in which Robin was permitted to testify here satisfied the requirements of the Confrontation Clause in every respect. She was physically present via a television screen; she testified under oath, subject to the penalty of perjury; she was available for cross-examination by defense counsel;10 and the jury was able to see her demeanor as she testified. Smith, supra, 158 N.J.at 384-85. We discern no legal error in the judge's thorough analysis and ultimate decision to permit Robin to testify via closed circuit television feed.

We also make clear our agreement with the trial judge's decision finding the State met its burden of proving, by clear and convincing evidence, that there was a substantial likelihood Robin would suffer severe emotional or mental distress if she had been required to testify in open court and in defendant's presence. N.J.S.A.2A:84A-32.4(b). Both Robin's and Dr. McNeil-Haber's testimony made clear this child was under severe emotional pressure at the time of trial. Her psychological and emotional state were extremely fragile. The DVD of the Michaelsinterview conducted By Detective Santos shows an emotionally traumatized child, obsequious in her demeanor, but apprehensive about disclosing this terrible secret to her mother; she was also tormented with a misguided sense of guilt about not being able to stop defendant from abusing her.11

In our view, this case exemplifies the public policy underpinning N.J.S.A.2A:84A-32.4(b). The statute provides the procedural means to encourage children like Robin to come forward and testify about being sexually abused by a parental figure in an emotionally safe environment, while ensuring a defendant's constitutional right to confront the witnesses against him or her is not compromised.

We next address whether the court erred in denying defendant's motion to have Robin examined by an independent psychologist. Defense counsel first raised the issue of having his own child psychologist examine Robin on May 23, 2011. The record of this brief and informal discussion began with the judge asking defense counsel to explain the need for a face-to-face interview between Robin (who was then thirteen years old) and a defense psychologist

THE COURT: [T]here is no affidavit from an expert, and there is . . . no real reason set forth in your papers as to what would be added to the expert's . . . evaluation by having a . . . fact-to-face evaluation that the expert couldn't get by number one, reviewing all of the evaluations that are here. And also, I would allow the expert if you wanted to be able to see the direct testimony. Obviously, the expert would be able to submit questions to you.

So what . . . would the expert gain . . . that would be helpful in formulating his or her opinion by a face-to-face interview that they wouldn't be able to achieve by looking at all the documents and the medical records, obviously, the discovery in the case, seeing the - - the girl testifying during the hearing, and being able to have you ask her any questions that . . . your expert - - I assume you got somebody retained already, right?

DEFENSE COUNSEL: We haven't formally retained - - I have spoken to people and I have somebody lined up who is willing to do this. We have come to an arrangement in principle. We haven't formally retained anybody until we learn what - - what your ruling . . . is going to be.

To answer your questions one at a time, as far as just relying on the notes of the prior treatment and evaluations, I don't think that's sufficient just knowing how these clinical evaluations take place where . . . every evaluator wants the opportunity to . . . ask the questions that they want to ask, to evaluate the reactions and responses from the person who is being evaluated. And when you have to rely on - -

THE COURT: But what would they do, would they give her a whole battery of tests, would they just do an interview, try and ask her about you know what happened and . . . at the times in question. What . . . would the expert use that face-to-face time for?

DEFENSE COUNSEL: I can't say for certain because like I said we haven't retained - -

THE COURT: That's a problem with your motion.

. . . .

DEFENSE COUNSEL: [F]rom speaking with . . . the psychologist I have spoken to, she said she would need about three hours with [Robin] and I didn't get into specifics as far as exactly what she would do . . . [in] that period of time, but the impression that I got it would be all of the above.

It would be having the opportunity to sit down in a clinical setting and child psychologists have different methods . . . of making the child feel comfortable and making them feel open . . . and free . . . to speak and . . . explore . . . their feelings about their . . . memories . . .

THE COURT: But what tests . . . would they have to re-give? You know, some of these tests are just like written tests, right? And some of them are just draw this draw that.

DEFENSE COUNSEL: I . . . can't answer that question. I . . . don't have the answer to that. I know that . . . the person that I have spoken to her name is . . . Madeline Milchman (phonetically), she's in Morristown. She has extensive history dealing with children in sexual abuse cases. And I didn't get into and . . . since you're asking I could . . . find that out from her and get . . . a more detailed description of what her evaluation would entail. I don't have that information right now and I apologize for that.

The colloquy between the trial judge and defense counsel on this topic continued over four more transcribed pages. At that time, defense counsel did not know whether he intended to challenge the diagnosis of Robin's psychotherapist, who opined Robin was suffering from post-traumatic stress disorder and depression. Ultimately, the judge denied defense counsel's nebulous motion to have Robin examined by an unknown psychologist. The court also noted defense counsel had not provided clearly defined parameters or protocols for such an examination

THE COURT: Now I mean I feel that without the submission from an expert as to why that face-to-face is needed, as to what would be the . . . inability, the hardship, the shortcomings of being able to render these opinions without that face-to-face, I'm not really very comfortable granting your request.

DEFENSE COUNSEL: Judge, if that's . . . the [c]ourt's position, then I just ask that you reserve . . . I'm sure I could get that within a week. We could come back in two weeks and . . . argue the motion then . . .

THE COURT: And that's why I asked you to come down here and why I didn't decide it on the papers.12

The prosecutor emphasized he did not need to produce expert testimony to meet his burden of proof under N.J.S.A.2A:84A-32.4. The prosecutor also noted, however, that due to a number of personal issues, the psychotherapist had been unable to provide him with a definitive report. The judge denied defense counsel's motion, with the caveat that defendant was free to file a motion for reconsideration "within the time period set forth in the rules." Defense counsel indicated to the court that he would not seek to call his own expert if the therapist's testimony was limited to merely describing Robin's mood and behavior during the therapy session, without expressing an opinion about the psychological harm she would experience if compelled to testify in open court with defendant present. The prosecutor made clear, however, that the State was not agreeing to limit the psychotherapist's testimony in this fashion.

The next time this issue resurfaced was on July 26, 2011, at the N.J.R.E. 104 hearing in which Robin and her psychotherapist testified. Despite defense counsel's representations to the trial judge on May 23, 2011, defendant did not submit a report from a defense expert rebutting the findings and conclusions reached by Dr. McNeil-Haber in her January 18, 2011 report. Against this record, defendant now argues the trial court erred by denying his motion to have Robin examined by a defense retained expert. Defendant has not cited any legal authority directly addressing this point of law, and acknowledges he was unable to find any published opinions from any court in this State on the subject.

Defendant instead analogizes the issue we confront here to the Court's ruling in State v. R.W., 104 N.J. 14 (1986), a case in which the defendant was convicted of sexually assaulting his biological infant daughter. Id. at 16. The allegations against the defendant in R.W arose "in the context of hateful divorce and custody battles, with each parent inevitably exerting influence on the child." Ibid. As a general observation about the disturbing nature of these types of contentious matrimonial dissolution cases, the Court in R.W also noted, "[d]efendants, attempting to investigate and perhaps impugn the child's competence or credibility, often request that the child submit to psychiatric or psychological testing." Ibid. The Court was thus asked to determine "when it is appropriate for a court to heed such a request." Ibid.

The victim in R.W was a three-year-old girl; the mother alleged the infant's father had had vaginal intercourse with his own infant daughter. Id. at 17. The legal question centered on the child's competency to testify in court under N.J.R.E. 602. Id. at 20. "The issue as it was actually presented to the trial court . . . was whether the age alone of the witness . . . constituted a sufficient ground for ordering a psychiatric examination." Id. at 21. The Court in R.W. ultimately denied the defendant's request for an independent examination and reaffirmed the existing standard for determining competency to testify. Id. at 22. The Court admonished trial courts that "[p]sychiatric testing on the issue of witness competency is an extraordinary measure. Trial courts, in the exercise of their discretion, should determine whether there is a 'substantial need' for psychiatric testing in order to aid in the assessment of witness reliability." Ibid.

Even a cursory reading of the Court's holding in R.W. reveals it has little if any application to the issue presented here. Robin's competency to testify as a witness in this case was never questioned by either side. The trial court decided the State's motion under the criteria codified by the Legislature in N.J.S.A. 2A:84A-32.4. There is no provision in the statute that permits a defendant to produce expert testimony to challenge the State's application. Indeed, as the State has conceded, the statute does not require the State to prove through expert testimony that Robin would experience severe emotional or mental distress if compelled to testify in open court with defendant present.

It seems clear to us, however, that when a trial court permits the State to supplement its application with expert testimony, as the court did here, basic fairness would require the court to permit defendant to present expert testimony in rebuttal. The nature and scope of this rebuttal evidence must be decided on a case by case basis. The judge here attempted, unsuccessfully, to get defense counsel to provide him with a rational basis for requiring Robin to submit to a face-to-face examination by a yet-to-be-retained defense psychologist. Despite the trial judge's best efforts, defense counsel never provided the court with a plausible explanation for this request.

In the Supreme Court's recent decision in State in the Interest of A.B., 219 N.J.542 (2014), the State challenged "an order of the family court allowing seventeen-year-old A.B. and his attorney to conduct a thirty-minute inspection of a home where the juvenile is alleged to have committed sexual offenses against his six-year-old cousin, N.A." Id.at 546. The Supreme Court affirmed our decision upholding the inspection order as being within the sound discretion of the Family Part. Ibid. Writing for the Court, Justice Albin explained

The right to the effective assistance of counsel in a criminal proceeding includes the right to conduct a reasonable investigation to prepare a defense. The right of the accused to a fair trial, and the right of a purported victim and her family to privacy must be balanced. The family court found that A.B. made a sufficient showing of need to inspect and photograph N.A.'s home. The court issued the inspection order only after carefully weighing the juvenile's fair-trial rights and N.A.'s privacy interests and imposing reasonable time and manner restrictions. We conclude that the family court did not abuse its discretion.

[Id. at 547.]

The Court in A.B. cited R.W., supra, 104 N.J. at 21, and State v. D.R.H., 127 N.J. 249, 259 (1992) (where the Court rejected the defendant's request for a gynecological examination of juvenile sex-abuse victim), as examples of cases where a defendant needs a "'substantial showing of need and justification.'" Id. at 557. A.B.'s holding of broad discovery rights to avoid trials by surprise has no application here because defendant was well aware of the State's intent to call an expert witness to supplement its application under N.J.S.A.2A:84A-32.4.

The trial court gave defense counsel a reasonable opportunity to present psychiatric or legal grounds to support his motion. The record here is inadequate to address this question. Defense counsel did not provide the trial court with a report of a mental health expert explaining the need for a face-to-face psychological examination of Robin. Because ultimately defendant did not seek to introduce expert testimony at the N.J.R.E.104 hearing, we discern no legal basis to disagree with the approach the trial judge adopted here.

Finally, we address defendant's argument attacking the trial court's decision to permit the jury to see and hear Robin's video/audiotaped statement. Defendant argues the statement was tainted by improper investigative techniques. Again we disagree. The judge who decided this motion was not the judge who presided over the trial.

The motion judge thoroughly reviewed the DVD and transcript of the interview and issued a memorandum of opinion in which he concluded

In this case there is no evidence of any pre-interview discussion that would have affected or influenced [Robin's] statement say for the prison comment made to her while she was riding in the car with her mother and the defendant. There was no evidence of any communication with [Robin] during the break say for her review of the journal that she had already read. [Robin] was not prompted with regard to the details of the sexual misconduct. She spontaneously revealed the particulars of defendant's actions. While Santos, who is trained and experienced in interviewing child victims, as evidenced by her credible testimony at the 104 Hearing, Santos did not let [Robin's] initial denial of abuse by defendant go by without further questioning. She was not coercive or overly suggestive. She maintained her objectivity in dealing with [Robin]. Reviewing the statement set forth above, the content and circumstances of same prove the statement to be trustworthy.

And while the presence of leading and repeated questions at certain points of the interview, a portion of which led to some general disclosures and which led to a liberal granting of the Michaels hearing to ensure that the issue was completely explored, this [c]ourt finds that the State has proved the reliability of the statement by clear and convincing evidence. As developed above, a review of the statement and totality of the circumstances regarding the interview prove that [Robin's] disclosure was not tainted. Although some leading questions were asked and Santos pursued some areas after [Robin] did not initially admit or respond in full, she did not, under the analysis the [c]ourt has set forth on the record here, taint the statement made by [Robin].

In Michaels, supra, 136 N.J. at 299, the Supreme Court outlined the factors to determine the admissibility of an interview of a child sexual assault victim. We must determine whether there is a "lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements. The analysis is flexible and does not require a mechanical approach." State v. P.S., 202 N.J. 232, 250 (2010) (internal citations omitted). One of the key issues the Court underscored in Michaels was "the importance of videotaping child interviews[,] and [it] held that such videotapes should be considered in any trustworthiness analysis." Ibid. (quoting Michaels, supra, 136 N.J. at 313-14 n.1).

A trial court's determination of reliability or trustworthiness sufficient to allow admission of evidence should not be disturbed unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" State v. Locurto, 157 N.J.463, 471 (1999) (citations omitted) (internal quotation marks omitted). Only in those circumstances may the court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." State v. Elders, 192 N.J.224, 244 (2007) (citations omitted) (internal quotation marks omitted). We affirm the trial court's decision to admit the video/audio recording of Robin's interview with Detective Santos substantially for the reasons expressed by the motion judge.

Affirmed.

1 As required by Rule 1:38-1(c)(12), we use initials or fictitious names throughout this opinion to protect the identity of this alleged victim of sexual abuse.

2 As will be discussed in more detail later in this opinion, the trial judge also considered Robin's in camera testimony.

3 We identify Robin's classmates by the first letter or letters of their first names.

4 The trial judge's complete "Fresh Complaint" instructions extended over four and one half pages of the transcript of this particular part of the trial. The judge's instructions tracked the key points in the model jury charge, and incorporated language reflecting the Court's principal concerns in State v. R.K., 220 N.J. 444, 454-56 (2015), and State v. P.H., 178 N.J. 378, 398-99 (2004).

5 Effective June 29, 2012 the "Division of Youth and Family Services" was renamed the "Division of Child Protection and Permanency."

6 The State also called as expert witnesses at trial Dr. James Oleske, a specialist in immunology and sexually transmitted diseases, Trinidad Chan, the Supervisor of Beth Israel's Microbiology laboratory, and Cynthia Bringas, the staff person who performed the NAAT in Robin's case. The combined effect of these witnesses' testimony was to corroborate Dr. Morgan-Glenn's earlier testimony concerning the scientific reliability of the NAAT results.

7 Dr. McNeil-Haber was on maternity leave from February 2009 to November 2010, and again from June 2011 to August 2011. Robin was treated by psychologist Dr. Alejandra Morales at Trinidad Regional Medical Center when Dr. McNeil-Haber was not available.

8 Dysthymia Disorder "is a mild but . . . chronic form of depression. Symptoms usually last for at least two years, and often for much longer than that. Dysthymia interferes with your ability to function and enjoy life." Persons who suffer from this psychiatric condition "may lose interest in normal daily activities, feel hopeless, lack productivity, and have low self-esteem and an overall feeling of inadequacy. People with dysthymia are often thought of as being overly critical, constantly complaining and incapable of having fun."

www.mayoclinic.org/diseases-conditions/dysthymia/basics/definition/con-20033879

(last visited July 30, 2015).

9 Copies of these emails were not provided to us as part of the appellate record.

10 At this point we must note that defense counsel decided not to cross-examine Robin. Defense counsel cross-examined her extensively at the N.J.R.E. 104 hearing to determine whether she needed to testify via closed circuit.

11 We have observed that a child who reveals she has been molested by a father-figure faces enormous pressure and anxiety. See New Jersey Division of Youth & Family Services v. H.B., 375 N.J. Super. 148 (App. Div. 2005), noting a child victim of sexual abuse

may feel responsible for thrusting her family into an emotional quagmire. This kind of misguided guilt can only exacerbate the psychological trauma associated with accusing a close family member of committing acts that profoundly violate the trusting relationship a child ordinarily enjoys with a parent or parent-like figure.

[Id. at 184-85.]

12 Defense counsel's "motion papers" were not included in the appellate record.