Opinion
DOCKET NO. A-2498-11T3
03-26-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.P., Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-12-1225.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
A jury found defendant, M.P., guilty of eight crimes involving sexual abuse of his stepdaughter, A.A., and one weapons offense. The abusive conduct commenced in February 2004, when A.A. was eight years old, and continued until February 2007. It occurred in New Jersey on the weekends and during the summer weeks while A.A., who lived with her father in Maryland, was in the care of her mother and stepfather in their New Jersey home. Ordinarily, three other younger children were staying in the home when A.A. visited — one is defendant's child and two are A.A.'s half-siblings.
The jury returned the following guilty verdicts: second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a (count one); first-degree aggravated sexual assault (placing his penis in the mouth of a child less than thirteen years of age), N.J.S.A. 2C:14-2a(1) (count two); first-degree aggravated sexual assault (placing his penis in the vagina of a child less than thirteen years of age), N.J.S.A. 2C:14-2a(1) (count three); first-degree aggravated sexual assault (performing oral sex on a child less than thirteen years of age), N.J.S.A. 2C:14-2a(1) (count four); second-degree sexual assault (touching the breasts of a child less than thirteen years of age), N.J.S.A. 2C:14-2b (count five); second-degree sexual assault (touching the vagina of a child less than thirteen years of age), N.J.S.A. 2C:14-2b (count six); second-degree sexual assault (causing a child less than thirteen years of age to touch his penis), N.J.S.A. 2C:14-2b (count seven); third-degree showing obscene material to a minor, N.J.S.A. 2C:34-3b(2) (count eight); and third-degree possession of a destructive device, N.J.S.A. 2C:39-3a (count nine).
The judge sentenced defendant to an aggregate term of imprisonment for thirty-three years, which is subject to parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence consists of concurrent eighteen-year terms of imprisonment on counts two and four and a consecutive fifteen-year sentence on count three. Concurrent sentences were imposed on the remaining charges: nine years for endangering the welfare of a child, count one; eight years for the three sexual assaults based on different types of sexual contact with A.A., counts five, six and seven; five years for showing A.A. an obscene video, count eight; and three years for possession of a destructive device, count nine. Because of his convictions on the first seven counts, defendant is subject to registration, N.J.S.A. 2C:7-2, and supervision for life as required by N.J.S.A. 2C:43-6.4.
I
It is an understatement to say that the State's evidence adequately supports the verdict. A.A., who was fifteen years old when the case was tried in 2011, testified that defendant started sexually abusing her in 2004, when she was eight years old and continued until 2007, when she was eleven years old. A.A. acknowledged enjoying her time in New Jersey with her family and, for a time, wanting to live there rather than in Maryland. Nevertheless, A.A. testified about what defendant did to her and caused her to do to him while she was with him.
A.A. described a variety of sexual acts to which defendant subjected her to over the three-year period: penile penetration of her vagina on one occasion; touching of her breasts; causing her to touch his penis; cunnilingus; and causing her to engage in fellatio.
With respect to "oral sex," A.A. testified that defendant used a purple, rubber toy he took from under his and her mother's bed and directed her to suck it. Sometimes he substituted his penis for the toy. In addition, she said that defendant licked her vagina, "usually either before or after" she "gave him oral sex."
A.A. also described the prelude to the only act of intercourse she acknowledged at trial. Defendant showed her a video that depicted "a regular teenager, a girl, and her father . . . having sex in the back of a van." After A.A. looked at the video on the living room computer as defendant directed, he asked her if "she wanted to try it," took her to the couch, pulled down her pants and "stuck his penis in [her] vagina."
A.A.'s last visit to New Jersey was on the weekend before March 6, 2007, which was the day A.A. first disclosed defendant's abuse to an adult. A.A. made the disclosure in Maryland to Detective Chrystal Hassler (then known as Detective Chrystal Young) and a Maryland social worker, Joan Willemain.
As A.A. explained at trial, she did not go to the detective's office on her own. She went to answer the detective's questions "about something [she] and [her friend C.D.] had did [sic]" in Maryland. The detective's questions "led to something else, and come to find out that I had let out that my step-dad was sexually abusing me, and they stopped me from going there."
A Maryland report about the children's sexual experimentation with each other led Hassler and Willemain to interview C.D. After C.D. told the women A.A. admitted to her that she was being abused by the stepfather and then discussed the girls' sexual contact, the women interviewed A.A.
An audio recording of A.A.'s March 2007 interview with Detective Hassler and Willemain was played for the jury at trial. A.A.'s descriptions of defendant's conduct during that interview were generally consistent with, but not identical to, her trial testimony. For example, during the interview, A.A. described the purple toy defendant used to teach her before tricking her by putting his penis in her mouth. She also described defendant making her watch videos on the computer in the living room that showed teenagers doing the things defendant "tr[ied] to do to [her]."
A.A.'s interview was video-recorded, but in an effort to enhance the audio portion of the recording, the video portion was lost.
Following a pretrial hearing on admissibility of the recording, the judge ruled that the State could play the recording at trial pursuant to the tenderyears exception to the hearsay rule, N.J.R.E. 803(c)(27). That determination is challenged on this appeal and is discussed in Part II of this opinion.
At the trial court's direction, the audio recording was redacted to eliminate references to defendant's acts of domestic violence and A.A.'s sexual experimentation with C.D. and another child.
Other than differences in the terminology A.A. used when she was interviewed at age eleven and testified at trial at age fifteen, the most notable differences between her accounts were: her descriptions of cunnilingus, which A.A. disclosed at trial but not during the interview; and her description of penile penetration of her vagina, which she told Hassler and Willemain occurred about "five or four" times in defendant's bedroom but told the jury occurred only once in the living room.
Evidence tending to corroborate A.A.'s testimony was retrieved during a search of the New Jersey home defendant shared with A.A.'s mother, two children born of their relationship, and defendant's son born of another relationship, who is a year younger than A.A. That search was conducted shortly after A.A.'s interview. A purple dildo, along with other sexual devices and a device for cleaning them, was found in a bag under the bed used by defendant and A.A.'s mother. A substance retrieved from the purple device was subjected to DNA testing and determined to be saliva of a female, but it was not A.A.'s saliva.
Videos stored on the computer in the living room in the home of A.A.'s mother and defendant were also found and seized. One of the videos, which was four minutes and nine seconds long, graphically depicts actual anal and vaginal intercourse between a mature adult male and a teenage girl. The conduct takes place in the back of a vehicle that appears to be either a station wagon or SUV with a hatchback that is up and open to expose the flat surface of the interior. That video was played for the jurors.
The young woman in the video is wearing shorts, her hair is in pigtails tied with bows, and she repeatedly addresses the older male as "daddy." That was the only video shown to the jurors. But the officer who recovered that video from the computer in the living room of defendant's home selected and retrieved others, and he testified briefly about their various titles and content.
The State also presented expert testimony tending to corroborate vaginal penetration. In March 2007, Dr. Wendy Lane who was qualified at trial as an expert in pediatric medicine with a specialty in pediatric abuse, examined A.A. and found damage to the eleven-year old's hymenal tissue. In Dr. Lane's opinion, the damage was caused by penetrating trauma, not blunt trauma such as one from a fall on gymnastics equipment or a bicycle. Dr. Lane also ruled out A.A.'s use of a tampon or self-exploration as possible, but very unlikely, causes of the well-healed transection she observed.
The doctor acknowledged she could not identify the source of A.A.'s penetrating trauma with absolute certainty. Nevertheless, based on A.A.'s history, which included the child's denial of consensual sexual conduct and no history of other penetrating trauma, Dr. Lane opined, within a reasonable degree of medical probability, that the penile intercourse with defendant was the cause.
Finally, the State presented evidence that A.A. had confided in other children while the abuse was ongoing. At trial and during her interview with Hassler and Willemain, A.A. said she told defendant's son that defendant was hurting her and told her friend C.D. about the sexual abuse.
Defendant's son testified for the defense. He denied being told about A.A.'s being hurt. C.D. testified for the State at trial and told the jurors what A.A. said.
Following a pretrial hearing, the trial court determined that C.D.'s testimony about what A.A. told her was sufficiently trustworthy to be admitted at trial. That determination is not challenged on appeal.
C.D. lived in Maryland. And, by both A.A.'s and C.D.'s accounts, they were best friends when A.A. confided in her. According to C.D., while they were sharing secrets, A.A., who seemed upset but did not cry, told her that her stepfather "touched . . . and licked her in her vaginal area and did it with her," meaning to C.D. that "he had sexual intercourse with her." C.D. explained that she did not tell anyone because A.A. asked her not to.
During her March 2007 interview, A.A. said: "I told [C.D.] what my step-dad had done to me because she was, she was kinda the only person I could tell at the time." At trial A.A. volunteered additional information. When the prosecutor asked what she told C.D., A.A. said: "My step-dad started sexually abusing me and it was basically like a teacher and student kind of thing. And when me and [C.D. got to] know each other more, I soon told her about it and then we started experimenting with each other." Moments later, A.A. repeated her statement linking her telling C.D. about defendant's abuse and the two girls' "experimenting."
Relying on the Rape Shield Law, N.J.S.A. 2C:14-7, the trial court denied defense counsel's application to explore the children's sexual conduct at trial. That ruling is challenged on appeal. That application was not renewed after A.A.'s testimony acknowledging the children's sexual experimentation.
The State also presented evidence to establish defendant's possession of a destructive device. It was found during the search of defendant's room in March 2007. The device consisted of a fused, five-inch cardboard cylinder holding an explosive mixture containing black powder. A detective from the arson and bomb squad unit of the New Jersey State Police testified that if the fuse was ignited the device would explode and propel anything in the area outward in all directions.
The defense primarily focused on the absence of opportunity defendant had to engage in the sexual conduct A.A. described and A.A.'s desire to live in New Jersey. A.A.'s mother and defendant testified on those points. Both described circumstances in their household that precluded an opportunity for the conduct A.A. described to occur — defendant's demanding work hours, which kept him away from the home much of the time; A.A.'s mother's adjustment of her work schedule to maximize her time at home when A.A. was there; and the fact that there were generally three other children at home when A.A. was visiting. They also described A.A.'s happiness while with them, her interest in moving to New Jersey to live with them and her reluctance to leave for Maryland when it was time for her to return.
Defendant and A.A.'s mother admitted ownership and use of the legal adult sexual devices found in their bedroom and their shared interest in pornography, which was also legal. They denied that the children had access to either, and they explained their supervision of the children's computer use and efforts to keep their sexual conduct and paraphernalia private.
II
Defendant's attorney raises these issues on appeal:
I. THE TRIAL COURT VIOLATED M.P.'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE RIGHTS BY EXCLUDING EVIDENCE REGARDING THE SEXUAL RELATIONSHIPS BETWEEN [X.Y.Z.], C.D., AND A.A. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 10.
II. THE ADMISSION OF MISLEADING TESTIMONY THAT HASSLER INTERROGATED A.A. EMPLOYING THE RATAC PROTOCOL DENIED M.P. HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. [I], ¶¶ 1, 9, AND 10. (NOT RAISED BELOW).
III. THE TRIAL COURT VIOLATED M.P.'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AS ENUNCIATED IN STATE V. MICHAELS AND N.J.R.E. 803(c)(27).
A. Hassler Engaged In Coercive, Incessant Questioning Of A.A., Curtailed Spontaneous Recall, And Exhibited "Interviewer Bias" In Violation Of Michaels And The RATAC Protocol.IV. ADMISSION OF THE EROTIC VIDEOS/PHOTOGRAPHS VIOLATED NEW JERSEY RULE OF EVIDENCE 403 AND THEREBY DENIED M.P. BOTH DUE PROCESS OF LAW AND A FAIR TRIAL AS REQUIRED BY U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, AND 10.
B. Hassler And Willemain Impermissibly Interjected "Facts" Gleaned From C.D.'s Statement Into The Interrogation of A.A. In Violation of Michaels And The RATAC Protocol.
V. THE TRIAL COURT ERRED UNDER STATE V. SANDS BY RULING THAT M.P.'S 1997 CONVICTION COULD BE INTRODUCED BY THE STATE TO IMPEACH HIS CREDIBILITY DENYING M.P. BOTH DUE PROCESS OF LAW AND A FAIR TRIAL AS REQUIRED BY U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, AND 10.
VI. THE TRIAL COURT ERRED UNDER RULE 3:15-2(B) BY JOINING THE CHARGE PURSUANT TO N.J.S.A 2C:39-3A, POSSESSION OF A DESTRUCTIVE DEVICE, WITH THE ALLEGED SEXUAL OFFENSES THEREBY DENYING M.P. BOTH DUE PROCESS OF LAW AND A FAIR TRIAL AS REQUIRED BY U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, AND 10. (PARTIALLY RAISED BELOW).
VII. THE NEED FOR INSTRUCTION AS TO LESSER-INCLUDED OFFENSES TO POSSESSION OF A DESTRUCTIVE DEVICE, IN VIOLATION OF N.J.S.A. 2C:39-3A, WAS CLEARLY INDICATED BY THE RECORD. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. [(1947),] ART. I, ¶¶ 1, 10. (NOT RAISED BELOW).
VIII. THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED M.P. A FAIR TRIAL. (Not Raised Below).
IX. THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, M.P. WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND.
Defendant has filed a pro se brief raising twelve additional issues.
I. TRIAL COURT ERRED IN FAILING TO ALLOW PSYCHOLOGIST C.T. TO TESTIFY ON BEHALF OF THE DEFENSE. (raised below).
II. THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OF OTHER CRIME EVIDENCE SO SANITIZED THAT ALL RELEVANCE WAS WASHED FROM IT, IMPERMISSIBLY PREJUDICING DEFENDANT. (not raised below).
III. TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING VIDEOTAPED STATEMENT TO BE REPLAYED FOR JURY OUTSIDE OF THE COURTROOM, PLUS COMMITTED REVERSIBLE ERROR IN ALLOWING VIDEOTAPED STATEMENT TO BE REPLAYED IN COURTROOM WITHOUT THE CONTEXT OF CROSS-EXAMINATION PLUS ALLOWED THE CHARGES AGAINST THE DEFENDANT TO BE ENTERED MULTIPLE TIMES VIA ORAL AND DIGITAL MEDIUM, THEREBY OVERLY PREJUDICING DEFENDANT IN JURY'S EYES. (not raised below).
IV. TRIAL COURT ERRED BY NOT CHARGING THE LESSER-INCLUDED OFFENSE OF SEXUAL ASSAULT WHICH, WHEN PENETRATION IS NOT PROVEN, IS THE NEXT STEP DOWN THE CRIMINAL LADDER. THE JURY WAS ONLY GIVEN THE OPPORTUNITY TO FIND THE DEFENDANT GUILTY OF EITHER A FIRST DEGREE CRIME OR NOTHING. AS THERE WAS NO SEMEN, NO WITNESSES, NO CORROBORATING EVIDENCE OF ANY SORT, COMBINED WITH THE AMBIGUITY PRESENT IN THE STATE'S MEDICAL EXPERT'S TESTIMONY AND THE FACT THAT THE SOLE IOTA OF PROOF THAT CUNNILINGUS OR FELLATIO EVEN OCCURRED IS THE VICTIM SAYING IT DID, THE JURY IS LEFT WITH ROOM FOR
DOUBT AS TO WHETHER PENETRATION EVER OCCURRED. (not raised below).
V. TRIAL COURT ERRED IN ALLOWING A.A. TO TESTIFY THAT DEFENDANT WAS DRUNK ALL THE TIME. (not raised below).
VI. TRIAL COURT ERRED IN ALLOWING EXTRANEOUS MARITAL AIDS TO BE DISPLAYED - AIDS THAT WERE NOT MENTIONED AS BEING INVOLVED IN ANY OF THE CHARGES AGAINST DEFENDANT. THIS ALLOWANCE CREATED AN UNFAIR PREJUDICE AGAINST THE DEFENDANT, DENYING HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (not raised below).
VII. DEFENDANT WAS CHARGED AND CONVICTED OF VIOLATING 2C:39-3A (WEAPONS POSSESSION - DESTRUCTIVE DEVICE (5" TUBE OF BLACK POWDER).
A) BECAUSE THE STATE AMENDED THE INDICTMENT TO READ "A 5" TUBE OF BLACK POWDER," THE CHARGE OF VIOLATING N.J.S.A. 2C:39-3A IS IMPROPER AS, WITHOUT MORE PROOF, THE DEVICE MET THE STATUTORY REQUIREMENTS OF A FIREWORK AND NOT A DESTRUCTIVE DEVICE. SEE N.J.S.A. 21:2-2. IN FACT, THE DEVICE DID NOT EVEN MEET THE STATUTORY REQUIREMENT OF A "DANGEROUS FIREWORK" AS IT DID NOT EXCEED 5". (not raised below).VIII. THE PROSECUTOR'S EXPLICIT DESCRIPTION OF EVENTS DURING HER SUMMATION CONSTITUTED IMPERMISSIBLE APPEAL TO THE JUROR'S EMOTIONS. (not raised below).
B) THE BURDEN OF PROVING THE DEVICE WAS NOT AN EXPLOSIVE DEVICE WAS IMPROPERLY SHIFTED TO THE DEFENDANT IN THIS CASE. (not raised below).
C) THE STATE'S WITNESS NEVER PROVED THE BLACK POWDER WAS ACTUALLY EXPLOSIVE. (not raised below).
IX. THE PROSECUTOR'S MISLEADING COMMENTS AND MISREPRESENTATION OF FACTS IN HER SUMMATION DENIED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (not raised below).
X. TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING STATE'S WITNESS ALEXANDER PERRY TO INJECT HEARSAY TESTIMONY PURPORTEDLY FROM THE LAB TECHNICIAN WITHOUT HAVING
SAID TECHNICIAN PRESENT AND AVAILABLE FOR CROSS-EXAMINATION. (not raised below).
XI. ERRORS AND OMISSIONS BY COUNSEL WERE SO DEFICIENT AND EGREGIOUS THAT PREJUDICE TO THE DEFENDANT MUST BE PRESUMED. (not raised below).
XII. CONSIDERATION OF ISSUES RAISED FOR THE FIRST TIME ON APPEAL IS WARRANTED TO ADDRESS ERRORS OF CONSTITUTIONAL DIMENSION AFFECTING DEFENDANT'S RIGHT TO A FAIR TRIAL. (not raised below).
III
Of the first five points raised by appellate counsel, all but the claim of prosecutorial excess raised in Point II, involve evidentiary rulings. Specifically, the objections are to the trial court's application of: the Rape Shield Law, N.J.S.A. 2C:14-7; the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27); the rule requiring exclusion of evidence with probative value substantially outweighed by the risk of undue prejudice, N.J.R.E. 403; and the rule permitting admission of a prior conviction relevant to credibility, N.J.R.E. 608(a).
Defendant, pro se, raises additional objections to the judge's evidentiary rulings in Points I, II, V and VI of his brief. All but one of his objections are raised for the first time on appeal and involve the application of N.J.R.E. 403. The one issue that was raised at trial concerns the court's exclusion of evidence based on the privilege recognized in N.J.R.E. 505 and N.J.R.E. 517.
Appellate courts review the evidentiary rulings at issue here for abuse of discretion. State v. J.D., 211 N.J. 344, 354-58 (2012) (rape shield); State v. Rose, 206 N.J. 141, 157, 177-78 (2011) (N.J.R.E. 403 and N.J.R.E. 404); State v. P.S., 202 N.J. 232, 250 (2010) (N.J.R.E. 803(c)(27)); State v. Sands, 76 N.J. 127, 144 (1978) (N.J.R.E. 609). Under that standard, a trial court's determination is upheld unless it is "'so wide of the mark' as to result in a manifest injustice." J.D., supra, 211 N.J. at 354 (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Such deference is not afforded, however, if the trial court has misapplied the law to the evidence in question. Rose, supra, 206 N.J. at 157-58; State v. Barden, 195 N.J. 375, 391 (2008).
There is an additional restriction on an appellate court's authority to grant relief when the evidence was admitted at trial without objection. In that circumstance, review is for plain error and reversal is appropriate only if the error is "clearly capable of producing an unjust result." R. 2:10—2; Rose, supra, 206 N.J. at 157. In reviewing for plain error, relief is not granted if the evidence "could not reasonably have led the jury to reach a conclusion that it otherwise might not have reached." State v. Gore, 205 N.J. 363, 383 (2011); cf. State v. Sanchez, 129 N.J. 261, 278-79 (1992) (error that leaves a reviewing court with uncertainty about whether it "contributed to defendant's conviction" warrants relief where review is for harmless error).
With those standards in view, we consider the evidentiary objections raised by appellate counsel and defendant pro se.
A. The Rape Shield Law
The first objection concerns defendant's request to cross-examine A.A. and C.D. about their sexual conduct with one another. Appellate counsel argues, as did trial counsel, that such evidence could have undermined Dr. Lane's testimony about the cause of the injury to A.A.'s hymenal tissue by providing an explanation other than penile penetration. Appellate counsel also urges us to reverse on a ground not raised by trial counsel — that the evidence of the girls' conduct could have been used to impeach A.A., who told Dr. Lane that she had never had consensual sex.
Although defendant frames the issue to include a third child, X.Y.Z., his brief does not include any argument pertinent to that child. Accordingly, we deem that aspect of the argument abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
In deciding whether to admit evidence of a victim's previous sexual conduct over the presumptive bar of the Rape Shield Law, N.J.S.A. 2C:14-7, the trial court must "balance the exquisite tension that inheres in protecting a defendant's right to challenge the individual accusing him of a crime while at the same time protecting the victim of a sexual assault from unjustified incursions into past conduct." J.D., supra, 211 N.J. at 348. The balancing is "fact-sensitive" and entails the weighing of the relevance, veracity and importance of the evidence to the defense against the potential for unnecessary humiliation of the victim and confusion of the jury. Id. at 358.
For several reasons, the trial court's decision in this case was on, not wide of, the mark. The only evidence about the nature of sexual experimentation by C.D. and A.A. the defense had was what C.D. told Hassler and Willemain when they interviewed her. Because of the trial court's ruling, C.D.'s recorded interview was not admitted and A.A.'s recorded interview was redacted to eliminate the vague and uninformative reference to her sexual contact with C.D.
Although C.D.'s interview was not admitted into evidence, it is part of the record on appeal. During the interview, C.D. described nothing other than external contact between A.A. and herself, and she expressly denied any internal touching. In short, there was no good faith basis for questions foraging for information about "penetrative trauma." State v. Budis, 125 N.J. 519, 532-33 (1991). Because there was no "clear proof" of relevant conduct, the trial court properly concluded that defendant had not overcome the bar of the Rape Shield Law. P.S., supra, 202 N.J. at 262; Budis, supra, 125 N.J. at 532-33.
With respect to any impeachment value that "consensual" sexual conduct between these children might have, plain error review applies because this ground was not asserted at trial. As previously noted, A.A. twice testified that she and C.D. experimented sexually with one another after she confided in C.D. Thus, the impeaching evidence was before the jury. Because the evidence was presented, the judge's ruling restricting defendant's right to present that evidence and confront A.A. did not have that result. She testified to the facts and could have been cross-examined. Accordingly, it had no capacity to alter the verdict. R. 2:10-2.
B. The admission of the audio recording of A.A.'s interview pursuant to the tender-years exception, N.J.R.E. 803(c)(27).
Defendant's challenge to the judge's application of the "tender-years" exception to the hearsay rule, N.J.R.E. 803(c)(27), also fails. The rule was adopted in recognition of the importance of the testimony of a child who is a victim of sexual misconduct, the potential reliability and credibility of the victim's spontaneous out-of-court statements, the impact of lapse of time and the stress of the courtroom setting on the child's ability to testify credibly before the jury. State v. D.R., 109 N.J. 348, 358-60 (1988); State v. Burr, 392 N.J. Super. 538, 565-66 (App. Div. 2007), aff'd as modified on other grounds, 195 N.J. 119 (2008).
N.J.R.E. 803(c)(27) applies to "[a] statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child." Admissibility of such a statement "is conditioned upon the State's prior notice of its intention to introduce the child's statement, 'a pre-trial judicial finding of trustworthiness, and [an] opportunity to cross-examine the child at trial[.]'" P.S., supra, 202 N.J. at 249 (alterations in P.S. quoting State v. R.B., 183 N.J. 308, 318 (2005)).
There is no dispute that the age requirement was met. A.A. was eleven when she was interviewed, and the age of the child at the time of the statement, not the time of trial, controls. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). Moreover, defendant had prior notice of the State's intention to introduce the statement and its content, and A.A. testified at trial.
The only condition of admissibility in dispute is the trial court's determination of the trustworthiness, or the reliability, of the statements A.A. made during the interview. That determination requires consideration of the totality of the circumstances and an assessment of sufficient reliability that is "based on the 'time, content and circumstances of the statement.'" P.S., supra, 202 N.J. at 249 (quoting State v. D.G., 157 N.J. 112, 128 (1999)); see id. at 249-50 (noting that the foregoing factors, which the Court endorsed in D.G., are appropriate).
The Court has also recognized the importance of considering the methods used in eliciting the child's out-of-court statement. State v. Michaels, 136 N.J. 299 (1994). The Court concluded, "sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events . . . ." Id. at 312-13.
As the Court explained in P.S.: "Relevant to the analysis [of the methods used] are details such as '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[.]'" 202 N.J. at 250 (quoting Michaels, supra, 136 N.J. at 309). That analysis of the investigatory process "is flexible and does not require a mechanical approach," but it should include consideration of recordings. Id. at 250.
In Michaels the Court considered whether the interrogations conducted were "so suggestive or coercive that they created a substantial risk that the statements and testimony thereby elicited lack sufficient reliability to justify their admission at trial." 136 N.J. at 313. The Court concluded that the multiple interrogations of the multiple children who alleged abuse, "utilized most, if not all, of the practices that are disfavored or condemned by experts, law enforcement authorities and government agencies." Ibid. The Court identified several of the problematic techniques: the absence of questions calling for "'free recall,'" ibid. (quoting the Appellate Division decision in State v. Michaels, 264 N.J. Super. 579, 629 (App. Div. 1993)); failure to record first interviews; lack of objectivity on the part of the investigators; the asking of "blatantly leading questions that furnished information the children themselves had not mentioned"; subjecting the children "to repeated, almost incessant, interrogation"; "the use of mild threats, cajoling, and bribing"; investigators' expressions of positive and negative reinforcement; investigators' "vilification" of the suspect; and investigators' pleas for assistance. Id. at 314-15.
See id. at 624 (discussing the work of an expert distinguishing "free recall" and "recognition").
The hearing on admissibility in this case was brief. Detective Hassler testified and the recording, which had been redacted to reflect the judge's prior rulings on the Rape Shield Law and to exclude statements A.A. made about defendant's violence toward her mother and siblings, was played in its entirety.
Defense counsel urged the trial court to exclude the recording as untrustworthy because Hassler and Willemain asked leading questions. He also noted that while Detective Hassler was now experienced and well-trained in interviewing children alleged to be abused, she had not had that training when she interviewed A.A. He stressed what Detective Hassler had acknowledged, that she received "RATAC" training after she interviewed A.A.
As Detective Hassler explained at the hearing, RATAC training is an acronym for an accepted approach to conduct a non-suggestive forensic interview of an allegedly abused child. It involves five steps — rapport building, anatomy, touch inquiry, abuse scenario and closure.
The trial court, noting its obligation to consider the totality of the circumstances, rejected defendant's arguments and found the recorded statements sufficiently trustworthy. The court explained:
I've had the opportunity to listen to the tape here today and review the transcript, as it was being played.
Obviously, the [c]ourt views these things in it[s] totality. There may have been some leading questions here or there but I, in hearing the nature of the colloquy back and forth between both Ms. Will[emain] and Detective [H]assler, it was clear to me that the child was not being led.
There weren't repeated interviews. There weren't repeated leading questions. It — I did not find it to be at all coercive; the type of inquiry that we saw in State v. Michaels, where there were repeated interviews, coercive and very suggestive questioning.
I don't find that here. I find that, based on the content and the circumstances of the statement, there is probability that it's trustworthy and, therefore, I will allow it to be admitted.
While the trial court did not provide a detailed analysis of the "time, content and circumstances of the statement" that led the judge to conclude that it was trustworthy, the only objections defendant raised were to the qualifications of Detective Hassler and the manner in which the interview was conducted. Additional factual findings would have informed our review and ability to defer, but, based on our review of the record, we are confident that the trial court did not abuse its discretion.
We agree with the trial court that the interview techniques used in this case bear only slight resemblance to some of those discussed by the Supreme Court in Michaels. Hassler and Willemain had information from C.D. about what A.A. told her defendant had done and some information about the licking and touching the girls had done to one another after A.A. disclosed defendant's conduct. They did not, however, pursue that notion as with an apparent preconception that what C.D. told them had actually occurred. The interviewers were coercive only in the sense that they encouraged the child to speak truthfully and fully. They told A.A. she would not get in trouble; that it was their job to help children by getting the truth to come out; and that they were worried about her because of what C.D. had told them about an adult being involved. They also urged A.A. to speak by explaining that she would be protecting other children.
When A.A. disclosed physical, not sexual, abuse defendant inflicted on others in her family, Willemain referred to such conduct as exemplifying that of a bully who would not stop and lacked respect for his victims. Arguably, those techniques could be characterized as falling within the Michaels Court's broad descriptions of improper techniques — cajoling, vilifying and lack of objectivity. But those broad descriptions must, in our view, be understood and applied in context, and in light of the central inquiry. The central question is whether the techniques "were so suggestive or coercive that they created a substantial risk that the statements and testimony thereby elicited lack sufficient reliability to justify their admission at trial." 136 N.J. at 313.
Having heard the recording of the interview and studied the transcript, we conclude that the approach taken did not create a risk of eliciting unreliable information. Neither the interviewers' dialogue with A.A. nor their questions suggested any of the details A.A. provided. While A.A. was encouraged, and arguably cajoled, to speak, she freely recalled and described defendant's conduct and her conduct. In fact the interviewers did not have any detailed information. C.D.'s account of what A.A. told her, the only information the interviewers had, was vague. A.A. volunteered and supplied the details during her interview — the purple rubber toy and its use, defendant's use of videos and penetration. A.A.'s hesitancy was in disclosing her role and lack of success in repelling defendant. A.A. repeatedly cast her descriptions in terms of what defendant "tried" to do to her. The interviewers pressed her to say what defendant did and told her that C.D. told them A.A. admitted to her that defendant had done more. Importantly, they did not say what that "more" was. Thus, the persuasion exerted by the interviewers went to lack of spontaneity in the disclosure not to lack of trustworthiness of the content of A.A.'s statement.
One might argue that the context of the interview, an investigation into something A.A. and C.D. had done, provided A.A. some motivation to cast blame on others with respect to the matter under investigation. But any disclosures about defendant's conduct in New Jersey with A.A. in no way implicated defendant in what occurred in Maryland.
There were, as the trial court noted, a few leading questions. For example, A.A., who had not mentioned "oral sex" was asked, "So where did you learn to do oral sex, how did you learn to do that?" A.A. said, "Him." She was then asked how defendant taught her. A.A. went on to describe how and in what room defendant "tried" to use the purple rubber toy and "would sometimes trick" her.
The lack of information supplied by the interviewers, a major factor in Michaels and the difference in the ages of the preschoolers in Michaels and this eleven-year-old child, distinguishes the techniques employed. 136 N.J. at 310-12. While portraying interest in the welfare of A.A. and other children and encouraging disclosure, these interviewers did not supply facts. They told A.A. that C.D. had told them what A.A. said, but they did not tell A.A. what C.D. had said.
In the end, the totality of the circumstances indicate that A.A.'s account is best characterized as a reliable and trustworthy one involving "free recall" of information disclosed after significant efforts to persuade the eleven-year-old child to talk, not affect what she would say. While not spontaneous in the sense that A.A. immediately volunteered the information, when she made the statements she spoke freely and gave details that were not suggested. Crying, A.A. said she was trying not to remember. It was after A.A. disclosed what defendant "tried" to do to her and "tried" to have her do to him and the surrounding circumstances, that the interviewers' persuasive efforts shifted to getting A.A. to tell them what defendant accomplished as well as what he "tried" to accomplish. They did that without suggesting any answer. Cf. Michaels, supra, 136 N.J. at 315-16.
After considering every objection defendant has raised to admission of the recording, we find none that undermines the trial court's conclusion about the impact of the interview techniques on the reliability and trustworthiness of the facts A.A. recalled without any suggestion. Accordingly, we find no abuse of discretion or error here.
C. Failure to exclude prejudicial evidence pursuant to N.J.R.E. 403.
Evidence that poses a risk of prejudice is properly excluded only if its probative value is substantially outweighed by risk of undue prejudice. N.J.R.E. 403. Appellate counsel argues error in application of that rule in Point IV, and defendant argues different misapplications in Points V and VI of his pro se brief.
The only issue under N.J.R.E. 403 raised in the trial court concerned the admission of the brief video of graphic sexual activity in the rear of a SUV or station wagon. Defendant contends that the video's non-existent probative value was substantially outweighed by the risk of undue prejudice. The video did have probative value. First, it was additional evidence of the video A.A. briefly described in her testimony, which was the prelude to intercourse in the living room.
More important, defendant was charged with exhibiting "obscene material" to a person under the age of eighteen. N.J.S.A. 2C:34-3b(2). For purposes of that crime, "'[o]bscene material' means any . . . depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a . . . film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity." N.J.S.A. 2C:34-3a(1).
Without question, the video includes unmistakably graphic images of portions of the human anatomy and their sexual use. The depictions are undoubtedly of a sort most jurors would likely deem offensive or perverse. But, given the statutory definition of obscene material and considering the content of A.A.'s brief testimony about the video, we cannot conclude that the trial court abused its discretion in denying defendant's request to exclude it under N.J.R.E. 403. It was evidence of the crime charged. Defendant's objection to its admission on the ground that A.A. did not watch and identify it in the presence of the jury lacks merit. Her trial testimony about what she recalled defendant showing her years earlier provided a sufficient foundation for its admission.
To the extent that defendant argues that the jurors could have misused the video and convicted him because of what his possession said about his character, attitudes and propensities, any error was invited. The trial court prepared a limiting instruction addressing those concerns, but defense counsel, after consultation with defendant, initially urged the judge not to deliver it. In the final instruction to the jury, however, the judge delivered a complete and appropriate limiting instruction with defense counsel's consent.
The remaining objections to the trial court's application of N.J.R.E. 403 have insufficient merit to warrant more than brief comment in this opinion. R. 2:11-3(e)(2). The evidence was admitted without objection, and, as previously explained, is consequently subject to review for plain error.
Contrary to defendant's claim, photographs of defendant's penis and other erotic videos stored on the computer in defendant's home were not introduced into evidence. The evidence of those items was testimonial and not inflammatory. While the probative value of the testimony was limited, the photos and videos were on the computer and most of the sexual devices were all found under defendant's bed. Defense counsel may well have declined to object because the location supported the testimony of defendant and his wife about their reason for having paraphernalia of the sort A.A. described in their home.
Given the proofs at trial, even if we were to conclude that the testimony should have been foreclosed, we have no doubt that the verdict would have been the same if this evidence had been excluded. That is true even when we consider the collective impact of this evidence.
D. Admission of defendant's prior conviction, N.J.R.E. 609.
Appellate counsel and defendant pro se both claim error in the admission of defendant's prior conviction. Defendant's conviction was from 1997, and defendant was sentenced to probation for five years, suspended. It was defendant's only conviction. There is no dispute that this conviction was for a crime. The State represented that the conviction, which was for "child abuse," was equivalent to endangering the welfare of a child. Apparently, the charge was based on defendant giving chewing tobacco to a child who was three years old.
"Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144. Because this conviction pre-dated the trial by about fourteen years and seemingly had more to do with judgment than honesty, we most likely would have reached a different conclusion on remoteness. Our view, however, is not determinative. The questions are whether the court erred in declining to exercise its discretion to exclude this impeachment evidence and, if so, whether its admission had the capacity to change the outcome. Recognizing that credibility was important in this case, we are confident that the jury would have reached the same verdict whether or not the jury knew about this 1997 conviction for which defendant received a suspended sentence of probation.
Defendant objects to the fact that the judge, at defense counsel's urging, sanitized the conviction. Because sanitization was required to avoid any suggestion that defendant had no regard for the well-being of children, this argument, raised for the first time on appeal, requires no discussion.
E. Defendant's pro se objection to exclusion of psychological testimony.
The first point raised by defendant in his pro se brief concerns exclusion of testimony from a clinical social worker who did a "child access evaluation for the courts" in Maryland, apparently in the context of a custody dispute. Defense counsel's proffer was that A.A. had the opportunity to and ability to report abuse and said she wanted to live with her mother and defendant in New Jersey and not with her father in Maryland. The trial court reviewed counseling records, found the privileges recognized in N.J.R.E. 505 and N.J.R.E. 517 applicable and concluded that the records did not contain any relevant information.
We do not have the documents reviewed by the court and the only transcript addressing the subject we have is an oral application for reconsideration. On this record, we are not in a position to assess the court's ruling. We are, however, confident that the exclusion of the information could not have affected the outcome. A.A. was cross-examined about the many opportunities she had to disclose defendant's abuse prior to her interview, and she acknowledged her interest in living in New Jersey with her mother and defendant during her testimony at trial.
F. Evidence of defendant's drinking.
Defendant's pro se brief also includes a claim for relief based on the trial court's failure to exclude A.A.'s references to defendant's drinking from her recorded statement and testimony. There was no objection to that evidence at trial, and the references were too brief and, in context, too insignificant to prejudice defendant.
IV
Defendant, in Point III of his pro se brief, raises an objection to the manner in which the court responded to a request from the deliberating jurors to rehear the audiotape of A.A.'s pretrial statement in Maryland and the testimony of A.A. and C.D. He contends that the court erred by giving the deliberating jurors unfettered access to the audiotape of A.A.'s interview during their deliberations. Without any objection from defense counsel, the deliberating jurors reviewed the audiotape in the jury room during deliberations.
In State v. Burr, 195 N.J. 119, 135 (2008), the Supreme Court directed that "any playback" of a "videotaped" statement of a child introduced into evidence at trial "must occur in open court, along with the readback of related testimony that the court shall require." In Burr, the Court set forth procedures a court should follow if "faced with a request by the jury to have a replay of the videotaped pretrial interview of" a child. Ibid. More recently, indeed days before this trial commenced, the Court provided "guidelines for the playback of video-recorded witness testimony" and stated that "[p]laybacks, like read-backs, should take place in open court with all parties present." State v. Miller, 205 N.J. 109, 114, 123 (2011). And most recently, in fact after the briefs on this appeal were filed, the Court reiterated "the need" for "specific measures to avoid the dangers associated with video-recorded evidence and expressly disapprov[ed] permitting unfettered access by the jury to video-recorded statements of witnesses or a defendant during its deliberations." State v. A.R., 213 N.J. 542, 560 (2013).
The procedures and guidelines the Court established for replays of videotaped statements and videotaped testimony are designed "to further the ultimate goal of a fair trial." Id. at 559. The concerns about fairness raised by replay of videotaped statements and testimony is that the jury will assign "undue weight" to or "unfairly emphasize" that evidence. A.R., supra, 213 N.J. at 554-56; Miller, supra, 205 N.J. at 123, 125; Burr, supra, 195 N.J. at 134. With respect to videotaped pretrial statements of children, the procedures directed in Burr are as follows:
[T]he court first should inquire of the jury whether it would be satisfied with a readback of [the child's] testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means.In the omitted footnote, the Court stressed that "it [is] imperative that the victim's related cross-examination at trial also be read back to the jury," where the videotape includes "hearsay testimony admitted pursuant to the tender-years hearsay exception." Id. at 135 n.9.
[195 N.J. at 135 (footnote omitted).]
Most likely because A.A.'s recorded statement included an audio but not a video track, the trial court did not employ the procedures for a videotaped statement directed in Burr. Indeed, although the court notified the attorneys of its intention to treat the audio recording as a trial exhibit admitted into evidence, which it was, neither attorney suggested an alternate approach or voiced an objection.
While the Supreme Court has not expressly directed courts to follow the Burr procedures where replay of an audio-recorded pretrial statement of a witness is at issue, the Court's reasoning suggests that they should be.
In A.R., the Court discussed technological advances related to preservation of evidence and testimony presented at trial and the changes in procedures for jurors' review of both types of evidence that have accompanied those advances. 213 N.J. at 545-46. In short, the Court has "acknowledge[d] and embrace[d] advances in technology while addressing the practical concerns they raise." Miller, supra, 205 N.J. at 125.
In Burr, the Court recognized that a recorded pretrial statement is evidence, an exhibit, and that deliberating jurors are generally given access to a trial exhibit, "subject to the court's instructions on its proper use." 195 N.J. at 133-34; see R. 1:8-8(a); see also A.R., supra, 213 N.J. at 560. The Court reasoned, however, that a "videotaped pretrial statement" is "significantly different from a demonstrative exhibit." Burr, supra, 195 N.J. at 134. The difference the Court found significant is that such a statement is "evidence" and "testimony" — a "hybrid of the two." Ibid.
The Court explained, "[u]nlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted. Moreover, the videotape is powerful evidence for the jury to see again, if it is not placed into context." Ibid. The Court was concerned about the potential prejudicial effect of allowing a jury "unrestricted access . . . during deliberations" — specifically the danger of a jury "unfairly emphas[izing] . . . videotaped statements over other testimony presented at trial, including [the declarant's] own cross-examination." Ibid.
In A.R., the Court discussed the concerns raised by both types of recordings — audio and video. Stressing that the procedures in Burr address the enhanced risk of undue emphasis posed by video recordings, the Court explained:
An audio recording permits the jury to hear every inflection, every hesitation, and every equivocation in the voice of the witness. A video recording magnifies the effect of a playback of testimony. Repeated jury review of a video-recorded statement is tantamount to a second, third, or even fourth appearance of the same witness at trial.Because an audio-only-recording does not have all of the concerning characteristics of a video-recorded statement, it may be argued that the risk of jurors' assigning undue weight or unfairly emphasizing an audiotaped pretrial statement that is replayed may be less significant. But because an audio recording has so many of the concerning characteristics, the risk is not non-existent. Although A.R. involved a video-recorded statement, the Court directed: "[U]nder no circumstances shall the jury have unfettered access to audio- or video-recorded statements in the jury room during deliberations. Replay in open court permits the required record of the replay to be made." 213 N.J. at 560-61.
[A.R., supra, 213 N.J. at 546.]
As previously noted, A.R. was decided after this case was tried. Thus, when these jurors were given unfettered access to A.A.'s audio-recorded pretrial statement, the Court had not expressly cautioned against that practice. It is appropriate for us to consider the absence of explicit direction to trial courts on juror access to audio recordings at the time of this trial in addressing what occurred in this case. See, e.g., Miller, supra, 205 N.J. at 126 (directing the delivery of a special jury instruction on replayed testimony in future cases and considering the absence of that instruction in the case before the Court "in light of the state of the law at the time" of the trial).
In this case, the trial court's decision to give the deliberating jurors the audio recording did not come as a surprise. The trial court's intention to do that was clear from the outset of trial. The recording was played at trial during the testimony of the State's first witness. Before it was played, the court advised the jurors that the "tape itself," not the transcript, "is evidence." The court stated, "[t]he CD will be taken into the jury room with you, not the transcript." In short, the court advised the attorneys of its intention to treat the recording like any other exhibit. R. 1:8-8. But, there was no objection.
During the court's final instructions to the jury, the court again advised that the recording would be in the jury room. Again there was no objection.
The issue arose again before the jurors listened to the CD on which the audio track of the statement was stored. We know that because the jurors consulted with the court before they listened. The jurors were released to commence deliberations at 11:36:56 a.m., and broke for lunch until 12:45 p.m.
At 1:28:59 p.m., the court went back on the record with a note from the jurors. The court read the first sentence of the note, "[A.A.'s] initial tape from Maryland." The court gave this response: "And you have that now and you have a DVD player to[o] — okay. Did you check? Is it working? Can you hear it?" The foreperson replied, "We didn't actually try it yet."
After explaining that the equipment the jurors had in the jury room should work, the court asked the jurors to let the court know if it did not. Again there was no objection.
The court then read the remainder of the jury's note, which asked: "is testimony available for [A.A. and C.D.], either written or taped?" The court answered that it was on tape and that the court would replay whatever the jury wanted. The court advised the jurors of the approximate length of the testimony they had requested and asked them if they knew what they wanted to hear. The foreperson answered: "I think the jury would like to rehear their testimony."
The court then told the jury it would take about ten minutes for the court and counsel to get ready to play the testimony requested. The court further instructed the jurors that they could listen to the recording in the jury room first and let the court know when they were ready or they could come out when the court had the testimony ready, whichever they wanted. Again there was no objection, and the jurors left the courtroom with direction to let the court know what they wanted to do.
If there were any communications between the jurors and court staff after the jurors departed, they are not reflected on the record. The audio recording of A.A.'s pretrial statement is fifty-eight minutes long. The jurors left the courtroom at 1:31:53 p.m. and returned to the courtroom at 2:56:53 p.m. There was no discussion of an audio recording at that point.
The testimony of C.D. and A.A. was replayed for the jury in open court from 2:56:35 p.m. until 3:22:39 p.m. At the conclusion of the replay, the court advised the jurors, "we'll get the laptop to come in and set up so you can listen to the tape there; all right? Thank you." Although that comment suggests that jurors had not been able to listen to the tape, that is not clear. In any event, defense counsel again lodged no objection.
The jurors left the courtroom at 3:23:08 p.m. and returned at 4:54:10 p.m. At that point, the jurors had sent the court a note saying that they wanted to continue deliberations until 5:00 p.m., would not reach a verdict that day and wanted to come back again. The judge told the jurors what time to return the next day.
The judge asked, seemingly as a matter of managing the evidence, if the jury would need the laptop the next day. The foreperson answered: "No, we're finished with that." The jurors returned the verdict at 11:48:34 a.m. the next day.
We cannot tell with any certainty when the jurors listened to the audio recording, which would take fifty-eight minutes. In fact, we cannot be certain whether they listened to all, some or none of the recording. All we know is that the jurors decided they were "finished" with the laptop. Admittedly, given their request to rehear the statement, it seems unlikely that they did not listen at all.
Despite those uncertainties, there are some important things that we do know. The jurors heard a replay of all of A.A.'s recorded testimony and all of C.D.'s recorded testimony. Consequently, we know that the jurors were not exposed to a repetition of A.A.'s statement that was unaccompanied by cross-examination. Moreover, we also know that there would have been nothing unique for the jurors that would invite unfair emphasis because the statement was recorded. See generally, Miller, supra, 205 N.J. at 125 (noting that "the recorded testimony replayed for the jury was of the same type as all other trial testimony" and distinguishing the video-recorded testimony replayed in Michaels on the ground that no other testimony in that trial had been videotaped). In short, the only procedural safeguard directed in Burr that was not followed here was that the jurors had unfettered access to the recording for a brief period, albeit a period long enough to permit the jury to replay the full interview and do some selective replaying.
That said, we turn to consider whether defendant can seek redress from this court based on a procedure he acquiesced to at trial. In A.R., the Supreme Court addressed the significance of the deviation from the procedures it directed in Burr. 213 N.J. at 558-59. Recognizing the procedural error in that case involving a video-recorded pretrial statement squarely within the rule announced in Burr, the Court rejected defendant's contention that such an error is structural and warrants relief without regard to prejudice. Id. at 552, 557-61. As there was no objection, defendant must, at a minimum, establish plain error.
We say at a minimum, because this case gives us reason to consider whether the error was invited. Implicit in the court's conclusion was an assumption that the Burr procedures were not implicated by an audio recording. A.R., a case involving a videotaped statement to which the jurors were given unfettered access that fell squarely within Burr, was decided on invited error. Id. at 561-64.
In taking that approach, the Court followed "a settled principle of law":
[T]rial errors that "'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. . . .'" State v. Corsaro, 107 N.J. 339, 345 (1987) (alteration in original) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). In other words, if a party has "invited" the error, he is barred from raising an objection for the first time on appeal. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010).
[Id. at 561.]
As our prior discussion of the multiple occasions on which the trial court plainly expressed its intention to send this audio recording into the jury room with all other exhibits indicates, defense counsel stood silent. In our view, that repeated failure to voice any objection or present any argument for an extension of Burr amounted to acquiescence and a course of conduct implying consent. While defense counsel did not urge the course taken, he took no action to alter it. In our view, such repeated instances of silence in the face of the court's repeated explanations of how the recording would be handled is not comparable to a single failure to object to a statement in closing argument, or an erroneous jury charge, or a question calling for an inadmissible response. The course of conduct too clearly bespeaks what this judge, one whose conduct demonstrated receptivity to considering objections, would infer — that there was no objection.
In N.J. Div. of Youth & Family Servs. v. M.C. III, the Court found invited error based on "defense counsel's indication that he did not object to the admission of the various documents." 201 N.J. at 341-42. True, counsel in that case voiced his non-objection to the admission of documents that included inadmissible hearsay after having an opportunity to review the documents. Ibid. The court noted the possibility of a strategic decision on counsel's part to forego "facing a witness's direct testimony" that would make reversal unfair to the Division, which had no reason to cure the problem. Id. at 342. Here too, had the State been alerted to the fact that defendant would argue for an extension of Burr, the State could have urged the court to replay the audio recording in open court along with the audio recording of A.A.'s and C.D.'s testimony. If defense counsel considered an extension of Burr, there may have been a strategic decision here as well. After all, A.A.'s trial testimony and recorded statement were not, as previously discussed, wholly consistent. In our view, the course of conduct here evinced acquiescence as clearly as the voicing of no objection in M.C. III.
Accordingly, we hold that defendant is barred by the doctrine of invited error from contesting for the first time on appeal the admission of the various documents.
We recognize that the doctrine of invited error should not be invoked "if it were to 'cause a fundamental miscarriage of justice.'" Id. at 342 (quoting Brett v. Great Am. Rec., 144 N.J. 479, 508 (1996)); accord A.R., supra, 213 N.J. at 561. But there is none here. As in A.R., the "strength" of the State's evidence "and the nature of the error," if any, given the State of the law at the time of this trial, warrants that conclusion. See A.R., supra, 213 N.J. at 563. As discussed above, the only significant deviation from the Burr procedures was allowing the jurors unfettered access to the audio recording during a portion of the jury's deliberations.
We could and would deny relief on this claim without any reliance on the principle of invited error. Because there was no objection at the time, our review of this claim is for plain error. R. 2:10-2. While the audio recording unmistakably reflects A.A. crying while she is reporting what defendant did, the emotional response one hears on listening to the recording is not surprising, shocking or highly inflammatory. The natural reaction evoked is one that is as likely to be lessened with repetition as it is to be exacerbated. Moreover, the State's evidence of defendant's guilt was not only adequate, it was strong. A.A.'s trial testimony and her recorded statement were properly admitted. C.D.'s testimony, offered for the limited purpose of rebutting any inference of fabrication based on delayed reporting, was also properly admitted. And, the State had physical evidence tending to corroborate A.A.'s testimony about defendant's use of the purple toy and the video. Moreover, there was physical evidence of injury to A.A. that was consistent with vaginal penetration.
Given that evidence and the fact that it would have been entirely appropriate for the court to replay the audio recording in open court for the jurors on their request, we have no doubt that the verdict would have been the same if the court had replayed the audio recording in the courtroom rather than allowing the jurors to play it in the jury room. Accordingly, relief is properly denied, without regard to invited error, because defendant has failed to show plain error.
V
We turn to consider appellate counsel's and defendant's pro se claims of prosecutorial misconduct. Their claims, all raised for the first time on appeal, are subject to review for plain error. R. 2:10-2. Moreover, where, as here, there was no objection, the prosecutor's conduct is generally not deemed prejudicial. State v. Josephs, 174 N.J. 44, 124 (2002). Relief is appropriate only if "the conduct was so egregious that it deprived the defendant of the right to a fair trial." Ibid.; see State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Applying those standards, we conclude that defendant is not entitled to relief on any ground asserted here.
These arguments are raised in Point II of appellate counsel's brief and Points VIII and IX of defendant's pro se brief.
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Counsel argues that "the State engaged in prosecutorial misconduct by offering Hassler as an expert in RATAC [a method of questioning children suspected to be victims of sexual abuse] at the time A.A.'s statement was recorded." The argument, as we understand it, is that the prosecutor misled the jury by suggesting that Hassler conducted A.A.'s interview in accordance with "the RATAC protocol she described at trial." Hassler did say that she uses the RATAC protocol, but during her direct testimony and cross-examination, she acknowledged that she did not have RATAC training when she interviewed A.A. Thus, the record does not support the claim.
Detective Hassler's trial testimony preceded the playing of the recording of A.A.'s interview. By her training, she had knowledge of the RATAC protocol for interviewing children and her testimony about it provided context for the jurors. Detective Hassler explained the acronym. The "R" stands for "rapport," which means "develop[ing] a relationship with the child, so they'll be more likely to talk to you about the most personal inner workings of their lives." The first "A" is for "anatomy" which means that "we have to make sure we understand what the child calls different body parts that we're going to be referring to, because we don't want to use terminology that they don't understand or something that they're not familiar with or uncomfortable with." The "T" stands for "touch inquiry," which is questioning to determine the child's understanding of "good" touches and "bad" touches and places that should not be touched. The "A" is for "abuse scenario," which is where the child explains any physical or sexual abuse that has occurred, and the "C" is for "closure," which is a chance for the child to talk and ask questions.
To the extent that Hassler's brief description of the RATAC protocol she now uses suggested that she employed that technique during this interview, the prosecutor and defense counsel elicited testimony showing that she did not. Thus, defendant's claim of prosecutorial misconduct based on a suggestion of facts that were false has no merit.
Defendant pro se contends that the prosecutor's summation was so graphic that it amounted to an emotional appeal and defendant claims that the argument included a reference to defendant's failure to provide an exculpatory statement. Defendant has not pointed us to the passages in the closing supporting those claims. Having reviewed the summation, we have not detected any reference to defendant's denial of guilt. We are inclined to agree that the prosecutor's emphasis on A.A.'s vulnerability was a veiled emotional appeal, but it was not so clearly and unmistakably improper as to "substantially prejudice[] the defendant's fundamental right to have a jury fairly evaluate the merits of [defendant's] defense." State v. Harris, 181 N.J. 391, 495 (2004). Finally, defendant's claim that the prosecutor's summation conveyed a false impression about the DNA testing done is not supported by the record. The prosecutor did not misstate the results of the DNA testing, and those results were stipulated. Given the stipulation, the prosecutor's accurate, but incomplete, discussion of the DNA testing was not misleading.
VI
Appellate counsel and defendant raise several issues related to his conviction for possession of a destructive device. All are raised for the first time on appeal, and consequently they are reviewable for plain error.
A. Joinder of possession of a destructive device and abuse and endangerment charges.
Appellate counsel contends the court erred by allowing the State to try the crime of possession of a destructive device with the charges alleging abuse and endangerment of A.A. Although the point heading indicates that this issue was partially raised in the trial court, the court, not counsel, mentioned the charge. Specifically, the court asked the prosecutor if the State intended to pursue the charge. The State said it did and identified the discovery that had been given to the defense. That was the extent of the discussion.
Even if defendant had requested severance of this count of the indictment prior to trial as required by Rules 3:15-2 and 3:10-2, a denial of severance would not have been improper. Generally charges included in the same indictment are tried together. R. 3:15-2(b). True, severance should be granted where there is a "real possibility of prejudice." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div. 2001) (internal quotation marks omitted). But there was no real possibility of prejudice that would have been apparent to the court prior to trial and none that is apparent now.
Defendant's claim that the jurors would be more likely to convict him of the sexual offenses charged because of evidence that he possessed this device has insufficient merit to warrant any additional discussion. R. 2:11-3(e)(2); cf. State v. Orlando, 101 N.J. Super. 390, 394 (App. Div. 1968) (noting that joinder of two distinct charges of child abuse, each with a different victim, had the effect of "giv[ing] the State two witnesses instead of one to overcome defendant's denial of either offense" and "multiply[ing] the chances that defendant would be convicted").
B. Lesser-included offenses of possession of a destruction device.
Appellate counsel urges us to reverse defendant's conviction for possession of a destructive device because the trial court did not sua sponte charge the jurors on what he contends are offenses included in that crime. Generally, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). But in the absence of a request, a sua sponte charge is required only if the evidence clearly indicates or warrants it. State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Savage, 172 N.J. 374, 401 (2002)).
More important here, where an offense is related to a charge in the indictment, in the sense that it is based on the same facts, but it is not included in a crime charged in the indictment, because it includes an element that is not included in the crime charged, it is improper for a court to give a sua sponte charge. See id. at 129-33. The offenses that defendant claims the court should have charged are "related" to but not "included" in the charge of possessing a destructive device. Thus, a sua sponte charge would have been error.
M.P. was charged with violating N.J.S.A. 2C:39-3a, which makes it a crime of the third degree to knowingly possess any destructive device. In pertinent part, "[d]estructive device" is defined as
any device, instrument or object designed to explode or produce uncontrolled combustion, including (1) any explosive or incendiary bomb, mine or grenade . . . . The term does not include any device manufactured for the purpose of illumination, distress signaling, line-throwing, safety or similar purposes.
[N. J.S.A. 2C:39-1(c) (emphasis added).]
Defendant claims the court should have given the jury the option of convicting him of the fourth-degree crime charged in N.J.S.A. 21:2-6, which makes it "unlawful to manufacture, sell, transport or use dangerous fireworks within the state." See N.J.S.A. 21:2-35 (specifying the degree of the crime). He also argues that the court should have charged the offense defined in N.J.S.A. 21:1A-132, which provides: "It is prohibited for any person to manufacture, store, sell, transport, use, dispose of, or possess explosives in any manner except as permitted under this act." That "act" referenced is the Explosives Act, N.J.S.A. 21:1A-128 to -144, not N.J.S.A. 23:39-3a.
Defendant's argument fails because each of the offenses he references requires proof of an element not included in the definition of possession of a destructive device. Specifically, N.J.S.A. 21:2-6 requires conduct beyond the possession that is required by N.J.S.A. 2C:39-3a, and N.J.S.A. 21:1A-132 requires proof that the conduct is not permitted under the Explosives Act, a fact that need not be shown to prove a violation of N.J.S.A. 2C:39-3a. For that reason alone, a sua sponte charge would have been improper.
C. The admission of hearsay evidence to support defendant's conviction for possession of a destructive device.
Defendant notes, quite correctly, that a detective testified about the results of a lab test of the explosive mixture of powder in his device that was done by a "lab," not the detective. In Point X of his pro se brief, defendant argues that this hearsay testimony, which was admitted without objection, violated his right to confront the person who did the testing. But there was no objection. See State v. Miller, 170 N.J. 417, 436 (2002) (construing "N.J.S.A. 2C:35-19c to require only that a defendant object to the lab certificate"); see also State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2006) (holding "that the admission in evidence of [a blood test certification], without the opportunity for cross-examination over the objection of defendant, runs afoul of the right of confrontation"); State v. Berezansky, 386 N.J. Super. 84, 95 (App. Div. 2006), appeal dismissed, 196 N.J. 82 (2008). Accordingly, we reject defendant's argument.
D. Burden of proof.
Defendant raises two additional claims pertinent to his conviction for possession of a destructive device — the burden of proof on this charge was shifted to him and that the State never proved the black powder was explosive. Both have insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
For the foregoing reasons, we reject all of the arguments defendant has presented for reversal of his conviction of the crime of possessing a destructive device.
VII
We have also considered the record in light of the arguments advanced in support of Point VIII of appellate counsel's brief and Points IV, XI and XII of defendant's pro se brief. With the exception of defendant's claim of ineffective assistance of counsel, which we preserve for review by way of petition for post-conviction relief in accordance with State v. Preciose, 129 N.J. 451, 459-60 (1992), the arguments have insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).
VIII
Appellate counsel argues that defendant's sentence is excessive, unduly punitive and based on an application and weighing of aggravating factors that lacks support in the record. As noted at the outset of this opinion, defendant's thirty-three-year sentence, subject to NERA, consists of two concurrent eighteen-year terms and one consecutive fifteen-year term. All other sentences imposed are concurrent. The Court found no mitigating factors and three aggravating factors — risk of recidivism, criminal record and need to deter. N.J.S.A. 2C:44-1a(3), (6), (9). The Court also addressed the factors pertinent to consecutive sentences set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985).
This court reviews sentencing determinations with great deference. State v. Fuentes, ___ N.J. ___, ___ (2014). We must
affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Id. at 13 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The Supreme Court has recently reminded trial courts that "[a] careful statement of reasons . . . facilitates appellate review" and that an "explanation of its reasoning 'is important for meaningful appellate review of any criminal sentence challenged for excessiveness,' because the appellate court 'is expected to assess the aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record.'" Fuentes, supra, ___ N.J. at ___ (slip op. at 18) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). The Court stressed that a "clear and detailed statement of reasons is thus a crucial component of the process conducted by the sentencing court, and a prerequisite to effective appellate review." Fuentes, supra, ___ N.J. at ___ (slip op. at 18).
In this case, the trial court found aggravating factors three, six and nine based on defendant's convictions in Maryland for: theft in 1996, for which defendant received probation; receiving stolen property in 1997, for which he was fined; and child abuse in 1997, for which he received a suspended sentence and five years of probation, which was terminated early; and violation of a protective order in 2000, for which defendant received "probation before judgment, unsupervised" and was required to pay $55 in fines and fees.
With respect to aggravating factor three, the trial court discussed the prior convictions and stated that it was assigning this factor "substantial weight." With respect to aggravating factor six, the court recited the factor and stated, "this [factor] is given moderate weight." Finally, with respect to aggravating factor nine, the court gave this explanation: "This factor applies in every case of this type. It especially applies to the fact the defendant's a repetitive offender who needs specific deterrence; this factor is given substantial weight."
The trial court stated that it did not find any mitigating factors, and did not explain why it rejected the mitigating factors defense counsel urged. The court's findings on the aggravating factors, however, made discussion of the mitigating factors related to the unlikelihood of recidivism unnecessary. N.J.S.A. 2C:44-1b(8), (9). With respect to hardship to defendant's family, N.J.S.A. 2C:44-1b(11), defendant's criminal record included offenses against members of his family. A trial court should, but is not required, to address mitigating factors raised by defendant and not supported by the record. Bieniek, supra, 200 N.J. at 609.
We have considered the arguments defendant has offered to establish that his sentence is excessive and determined that they lack sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2). The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See Bieniek, supra, 200 N.J. at 608; State v. Cassady, 198 N.J. 165, 180-81 (2009). To the extent defendant argues that the court's remarks about defendant's exercise of his right to trial and the age of the victim suggests reliance on impermissible criteria, we are confident that the sentence imposed is based on the statutory aggravating factors the court identified and not the court's introductory remarks.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION