Opinion
DOCKET NO. A-5252-13T3
11-04-2015
STATE OF NEW JERSEY IN THE INTEREST OF J.J., A Juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant J.J. (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-1028-13. Joseph E. Krakora, Public Defender, attorney for appellant J.J. (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
J.J., a juvenile, appeals from a January 23, 2014 order of the Family Part adjudicating her as a delinquent. We affirm.
We use initials to protect the identity of the juvenile and the privacy of the parties. --------
We discern the following facts from the record. J.J. is a sixteen-year-old teenager who lived with her foster mother, A.W., in February 2013. N.W., age six, lived with his mother, T.W., A.W.'s niece. In late February 2013, while playing, N.W. told his friend that J.J. was his girlfriend and that the two of them had been "freaking". When T.W. overheard N.W. say he had a girlfriend, she asked him "what did [you] say[?]". Although N.W. was quiet at first, T.W. brought him into a bathroom to maintain some privacy. N.W. then told T.W. that he and J.J. had "freaked" at J.J.'s house a few weeks prior.
Upon hearing this information, T.W. called A.W. A.W. spoke to N.W. on the phone. After several minutes of encouragement by A.W., N.W. told A.W. that J.J. "freaked" him and asked him to kiss her vagina.
A.W. confronted J.J. and asked if N.W.'s story was true. J.J. responded saying, "[I'm] not saying that he's lying, but [I] didn't do it[.]" A.W. told J.J. that she needed help, and told her that she was going to call the police and the Division of Child Protection and Permanency (the "Division"). The police placed J.J. with the Psychiatric Intervention Program in Atlantic City to determine her mental health status.
T.W. called a Division hotline to report N.W.'s abuse. As a result of T.W.'s call, the Division called the Atlantic County Prosecutor's Office to arrange an interview with N.W. and T.W. Detective Rosiello interviewed T.W. and N.W., and video-recorded her interactions with N.W.
The State initiated a delinquency trial against J.J. in the Family Part in Atlantic County on September 27, 2013, charging her with acts that, if committed by an adult, would constitute first- and second-degree aggravated sexual assault, as well as third-degree aggravated sexual contact. The State moved to allow the testimony of T.W. and A.W., as well as the videotape of N.W.'s interview with Detective Rosiello, under the "fresh complaint" and "tender years" exceptions to the rule against hearsay. After a hearing, the trial judge found N.W.'s hearsay statements made to T.W., A.W. and Detective Rosiello fell inside the exceptions, and considered such evidence when making his ruling. After hearing the remainder of the evidence, the trial judge found J.J. guilty of both first- and second-degree aggravated sexual assault, as well as third-degree aggravated sexual contact. J.J. was sentenced to two years at the Training School for Girls, suspended, and two years of probation with a requirement of completion of a residential sex offender program; compliance with the requirements of the Atlantic County Care Management Organization; no unsupervised contact with children under age fourteen; registration as an offender under Megan's Law; as well as other fines and penalties. This appeal followed.
On appeal J.J. argues:
POINT I
THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF A.W. AND T.W. AND THE VIDEOTAPE OF N.W.'S INTERVIEW WITH DETECTIVE ROSIELLO BECAUSE THAT EVIDENCE DID NOT MEET THE REQUIREMENTS EITHER OF THE FRESH COMPLAINT DOCTRINE OR THE TENDER YEARS EXCEPTION TO THE HEARSAY RULE
Because this appeal concerns the trial court's evidentiary rulings, this court reviews the trial court's decision for an abuse of discretion. See State v. L.P., 352 N.J. Super. 369, 379-81 (App. Div.), certif. denied, 174 N.J. 546 (2002) (citing State v. Hill, 121 N.J. 150, 167-68 (1990)). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (citations and internal quotation marks omitted).
J.J. asserts that the trial court's admission of T.W.'s and A.W.'s testimony under the fresh complaint hearsay exception, constituted an abuse of discretion. Hearsay testimony is generally inadmissible at trial, unless an exception applies to the testimony. N.J.R.E. 801, 802. The "fresh complaint" exception is applicable in sexual assault and abuse cases. Although this exception is not recognized under the New Jersey Rules of Evidence, our Supreme Court has recognized the fresh complaint exception to the hearsay rule. Hill, supra, 121 N.J. at 165-166. Such testimony is only admissible for purposes of showing that a victim in a sexual abuse or assault case made a complaint; the hearsay evidence cannot be considered as substantive evidence of guilt. Id. at 166.
In order for the fresh complaint exception to apply, the proponent of the evidence must establish that, (1) the victim of the sex crime made statements concerning the crime to someone he or she would ordinarily turn to for support; (2) such statements were made within a reasonable time after the alleged assault; and (3) the statements were spontaneous and voluntary. Hill, supra, 121 N.J. at 163. In cases involving child victims, the requirements for the fresh complaint doctrine are generally flexible because of the potential for children to be "cajoled and coerced into remaining silent by their abusers[.]" State v. Bethune, 121 N.J. 137, 143 (1990).
The trial judge correctly found the statements that N.W. made to T.W. are admissible as fresh complaint evidence under the Hill test. T.W. is N.W.'s mother and courts generally recognize mothers as someone to whom a sex abuse victim would turn to for support after an assault has occurred. See Hill, supra, 121 N.J. at 160 (citing Baccio v. People, 41 N.Y. 265, 268 (1869)).
N.W. spoke with T.W. about the "freaking" near the end of February. The incident itself took place a few weeks prior, at the beginning of February. The fact that the complaint occurred several weeks after the assault is not fatal to the admission of the complaint. The Supreme Court recognized the need for the fresh complaint doctrine to be flexible in child abuse cases because of the possibility that children will be reluctant to speak to their parents about such matters. Bethune, supra, 121 N.J. at 143-44. N.W. spoke with T.W. only two to three weeks after the assault occurred. T.W.'s conversation with N.W. happened as soon as T.W. overheard him discussing the incident.
N.W.'s statements to T.W. were also spontaneous and voluntary. Although defendant asserts that Bethune and Hill limit admission to statements that were not made "directly in response to [] interrogation," defendant's characterization of the relevant case law is incomplete. Bethune, supra, 121 N.J. at 145. Defendant argues that because T.W. asked N.W. what he said after he told his friend that he and J.J. "were freaking," T.W.'s conduct constitutes interrogation under Bethune and renders the statement inadmissible under the fresh complaint rule. We disagree.
In Bethune, the Supreme Court said, in cases involving child sex abuse, "not all questioning preceding a complaint deprives an utterance of the spontaneity and voluntariness needed for it to be admissible under the fresh complaint rule." Bethune, supra, 121 N.J. at 144. Hill provides that "statements that are procured by pointed, inquisitive, coercive interrogation lack the degree of voluntariness necessary to qualify under the fresh-complaint rule." Hill, supra, 121 N.J. at 167. Bethune similarly provides that statements "made directly in response to coercive questioning are inadmissible under the fresh-complaint rule, because coercive interrogation robs those statements of the self-motivation necessary to qualify as fresh complaint." Bethune, supra, 121 N.J. at 145.
The questions that A.W. and T.W. asked were not the pointed questions discussed above. Specifically, the Court noted that complaints elicited by questions such as "what's wrong?", "what happened?", and "did he do something to you?" were admissible because they were general, non-coercive questions. Id. at 144-45 (citations omitted). The Court specifically noted that coercion is measured by determining several factors, including "the age of the child, the child's relationship with the interviewer, the circumstances under which the interrogation takes place, whether the child initiated the discussion, the type of questions asked, whether they were leading, and their specificity regarding the alleged abuser and the acts alleged." Bethune, supra, 121 N.J. at 145.
In this case, T.W.'s questioning was non-coercive. She merely asked N.W. to repeat what he said to his friend. N.W. told her that he had been "freaking" with J.J. and that she asked him to kiss her "stuff". She followed up N.W.'s explanations with questions like "why?" and "did you?" and "what did it smell like?" N.W.'s comments to his friend prompted the questioning, and although specific, the questions were mostly in response to statements that N.W. had spontaneously spoken to his friend in her presence. Accordingly, the trial court did not err in allowing T.W.'s statements regarding the conversation into evidence as a fresh complaint.
N.W. is A.W.'s nephew. Although the case law is silent regarding whether an aunt is someone a victim would normally turn to for support after a sexual assault, the circumstances of this case demonstrate that A.W. might be someone that N.W. ordinarily would turn to for support. N.W. made his complaint to her within several minutes of making the complaint to his mother, and so the same reasoning arguably operates to allow A.W.'s testimony to satisfy the second prong of the Hill test.
However, N.W.'s statements to A.W. were neither spontaneous nor voluntary. Although Bethune provides a flexible standard that is adaptable to the need to sometimes draw complaints from young children, the Supreme Court has provided factors for a court to consider in determining whether a complaint is spontaneous enough to merit admission under the fresh complaint rule. Bethune, supra, 121 N.J. at 145. In this case, N.W. only spoke with A.W. when T.W. called her and put N.W. on the phone. Such an action is coercive given the circumstances; T.W. told A.W. that N.W. had something to say in regards to J.J. A.W. also had to speak to N.W. for several minutes, telling him that it "was okay" and otherwise convincing him to speak. The hearsay statements between N.W. and A.W. were made under circumstances too coercive to be admissible under the Hill test.
Although the trial court erred in admitting the hearsay statements made to A.W. as fresh complaint testimony, such error was harmless. The trial court properly admitted T.W.'s testimony, which overlapped significantly with A.W.'s testimony and Detective Rosiello's interview. The trial court also relied heavily on N.W.'s own testimony in reaching his decision; he found the child's testimony to be credible because of his knowledge of what a vaginal area looks like, his lack of vindictiveness, and the intricacy and general consistency of his story. Considering N.W.'s testimony, together with T.W.'s testimony, the trial court had other bases upon which to find defendant guilty beyond a reasonable doubt.
Moreover, N.W.'s statements to A.W., as well as his statements to T.W. and Detective Rosiello, are admissible evidence under New Jersey's tender years rule pursuant to N.J.R.E. 803(c)(27):
A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of Rule 601.
In this case, the trial court made several findings as to N.W.'s trustworthiness that are supported by credible and sufficient evidence in the record. First, the trial court found that the child's terminology demonstrated a lack of manipulation by adults; for example, N.W.'s use of the word "stuff" and "freaking" suggested that N.W.'s story arose on its own, as opposed to something that an adult would coach him to say on the stand. The trial court also relied on N.W.'s mental state in forming its conclusion. The trial court noted that there were some inconsistencies in N.W.'s statement in the interview, but that such inconsistencies are to be expected with such young children. The trial court found that there was no other mode of manipulation in Detective Rosiello's interview because N.W. could answer questions in any way he wanted. The court also found that N.W. had no motive to fabricate given his fondness of defendant.
The trial court considered all of these factors on the basis of the interview presented at trial, the testimony of the witnesses, and the demeanors it observed. A review of the record demonstrates substantial, credible evidence which supports the trial court's finding.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION