Opinion
DOCKET NO. A-3477-13T1
06-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.C., Defendant-Appellant.
Price, Meese, Shulman & D'Arminio, P.C., attorneys for appellant (Michael Orozco, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-05-1449. Price, Meese, Shulman & D'Arminio, P.C., attorneys for appellant (Michael Orozco, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant J.C. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges stem from defendant's admission, during a telephone call with his daughter, A.C., that he had several sexual encounters with her when she was a child. At trial, a recording of the phone call was admitted into evidence and jurors were given a transcript of the conversation, which was not admitted into evidence. On appeal, defendant challenges the admission of the recording and the use of the transcript, and raises several additional trial errors. We affirm.
We use initials for all parties to protect the victim's anonymity.
I.
We discern the following facts from the record. On January 26, 2012, A.C. was in the car with her mother, A.D.S., when A.C. started to cry. Asked what was wrong, A.C. told her mother that defendant had "sexually molested" her when she was nine or ten years old. Specifically, A.C. claimed defendant had "touched" her vagina and breasts, and also "put his mouth on her vagina." A.C. was born in April 1994, which would place these events in the 2003-2004 timeframe.
A.D.S. and A.C. promptly reported this to the police. On January 29, 2012, A.C. gave a statement to Detective Jamillah Ellis of the Newark Police Department. Working with the Essex County Prosecutor's Office, Newark Police set up a "consensual intercept," see N.J.S.A. 2A:156A-4(c), in which A.C. would call defendant on the phone and allow police to record the conversation. With A.D.S.'s consent, Detective Eric Marino attempted the intercept on February 2. Marino suggested to A.C. that she express to defendant she was willing to forgive him, in order to elicit an admission that what he did was wrong. However, no one dictated what A.C. should say during the call.
A.D.S. first went to the Irvington Police because defendant then lived in Irvington, but she was redirected to the Newark Police, apparently because the events occurred in Newark.
A.C. and defendant conversed in Spanish. A.C. began by discussing an incident that had occurred two months earlier at a Best Buy, where defendant and A.C. were shopping for a laptop for A.C. Defendant asked A.C. for a kiss while they were in the store; in the car afterwards, he discussed his "sexual dreams" with A.C. During the phone call, A.C. asked defendant, "[W]hy did you talk to me that way in the car, telling me about your sexual dreams and . . . ." His response began, "Because I felt pressured, I couldn't take it anymore, I knew it was wrong and I wanted to vent, not with anyone else but only with you . . . ."
We rely on a transcript that includes the spoken Spanish and an English translation. The word "indiscernible" appears in both languages at multiple points in the transcript.
A.C. then confronted defendant with an incident that occurred years earlier in which he took her into a bathroom and fondled her:
[A.C.] . . . I remember everything. I remember you told me to kiss you, I remember how you touched me, I remember everything.
[Defendant] But I didn't — didn't — didn't touch you with mischeavousness [sic], in other words, I didn't touch you with — how can I tell you? I don't know, it was like, look (indiscernible) maybe it was a habit of some kind, you think it's okay and I that you told me on some occasions, I understand that point and forgive me, I don't know why I acted that way . . . .
A.C. returned to the same incident later in the conversation:
[A.C.] We lived with uncle and — and one day you pulled me into the bathroom and — and you touched my breasts and you touched my vagina but it wasn't without wanting, you did it on purpose and you told me not to tell anyone.
[Defendant] I only remember (indiscernible) in the bathroom that I closed the door and you — that was the day that I know you were uncomfortable but that I pulled you in the bathroom, truthfully, that's where I — I would like to tell you completely because I had (indiscernible) I could (indiscernible) that way maybe —
[A.C.] And you —
[Defendant] (indiscernible) You have to (indiscernible) affect you, maybe I had sexual desires at that moment and (indiscernible) I don't know (indiscernible). (Indiscernible) problems on my part, it was a mistake on my behalf. . . .
A.C. also accused defendant of performing oral sex on her. She stated: "I remember when I was little you used to put your mout[h] on my vagina and I know that that's one hundred percent wrong and I wanted to know why — why you used to do it." Defendant gave a long answer, eventually saying, "it's possible that it's true, it's possible that it's true, but I don't remember those moments." A.C. continued asking, "I want to know why." Defendant initially said, "I don't know (indiscernible). I don't know why I did it. I would be lying to you if I told you that — I don't know, I don't know, truthfully I don't."
A.C. then told defendant she was thinking of "going for therapy because I need it, I'm having anxiety attacks, I can't sleep and I remember that you put your mouth on my vagina two times and I want to know why you did that to me and I'm your daughter." Defendant replied, "But, maybe, it was something — something (indiscernible) or something stupid, I don't understand it, truthfully I'm telling you that I would like to understand it (indiscernible)." After A.C. asked, "So, you don't know why you did it to me?" defendant answered, "Because I don't know."
The last indiscernible word in that sentence was a nickname defendant testified he used for A.C. The name is used elsewhere in the conversation where "indiscernible" appears in the transcript.
Later in the conversation, A.C. indicated she wanted to "forgive" him, but was hurt "that you see me that way, like your wife or your girlfriend or — or sexually." Defendant started answering by indicating that he understood, and went on to say:
No, I know that I'm the one at fault for everything, you aren't (indiscernible), I'm the guilty one and — and (indiscernible) different system, right. (Indiscernible) problem with the law (indiscernible) because (indiscernible). Everything you're telling me about ten years I — I kissed your vagina and I touched you and that I kissed you, if an authority hears that, well automatically I'm a sick person and that basically (indiscernible) a lot of problems, I know. (Indiscernible) but, yes (indiscernible) a lot of problems
Defendant was arrested in March, and on May 29, 2012, a grand jury returned an indictment charging him with first-degree aggravated sexual assault based on the alleged oral sex, N.J.S.A. 2C:14-2(a)(1); two counts of second-degree sexual assault based on his allegedly touching A.C.'s breasts and vagina with his hands, N.J.S.A. 2C:14-2(b); and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The indictment alleged that the assaults occurred between April 19, 2003 and April 19, 2005.
Defendant filed a pretrial motion to suppress the recording of the phone call, arguing the State had not met its burden under State v. Driver, 38 N.J. 255 (1962 ). Driver held that sound recordings are admissible if the State establishes that:
(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.Defendant's motion focused on the number of instances where the transcriber could not understand a word or phrase and wrote "indiscernible." Defendant also asserted the recording itself was substantially inaudible. Defendant did not challenge the Spanish-to-English translation.
[Id. at 287.]
He also does not object to the failure to make a verbatim record of the content of the audio as played in court. See R. 1:2-2 (stating that where the transcript is not marked into evidence, "a verbatim record shall be made of the content of an audio or video tape played during the proceedings," in addition to the court admitting the recording itself into evidence, and retaining it).
At a hearing on the motion, Judge Michael L. Ravin listened to the recording and heard testimony from Detective Marino. Judge Ravin denied the motion in a written opinion, finding the State had met its burden under Driver. The judge found that while defendant's voice was hard to understand in some places, "the vast majority of the conversation is audible, and only a small portion was inaudible." The judge stressed that "the contents of the conversation could be clearly understood" and defendant "clearly and audibly ma[de] numerous incriminating remarks" in response to A.C.'s questions.
The judge relied on State v. Zicarelli, in which we held that "if a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible." 122 N.J. Super. 225, 239 (App. Div.) (internal citations omitted), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973). The judge found that defendant's incriminating statements "make the probative value of the recording extremely high, and the clarity of the recording cannot be considered anything close to 'partially intelligible.'" The judge distinguished the recording in Driver, which the Court described as "garbled, full of static and other foreign sounds" and "unintelligible and inaudible for the most part. . . ." 38 N.J. at 288. The judge declined to delete the indiscernible portions of the recording, finding that would make the conversation more difficult to understand.
At trial, the recording was admitted into evidence and played for the jury. As an aid, jurors were given copies of the transcript of the phone call, which included the spoken Spanish and an English translation. But, the transcript was not admitted into evidence.
A.C. testified at length about the abuse, which happened at defendant's house on Kerrigan Boulevard in Newark, where she often spent weekends with him. (A.C. lived with her mother during this time.) She testified she was "pretty sure" that "these incidents occurred around the age of 9 or 10 years old," because "that's when [defendant] was living there."
A.C. had previously told a detective, however, that her understanding of the dates was based on her mother's estimate.
Describing the encounter in the bathroom, A.C. testified:
We were in the living room and my dad was almost angry and he told me that — to come to the bathroom with him. I went to the bathroom, he shut the door and he touched me — well, he touched my breasts over my shirt and my vagina over my underwear and under my pants and he told me not to tell anyone, to keep it a secret.A.C. testified that defendant's brother, J.R.C., was in the house when this happened, "most likely" sitting on the living room couch watching television. She testified that in "the entire time" that she was spending weekends at defendant's house, J.R.C. lived with him at the Kerrigan Boulevard house. However, with the exception of this encounter, "no one was home for any of those other incidents."
A.C. also testified that defendant performed oral sex on her:
In my uncle's room, I was sitting and I had a Game Boy in my hand, and that's when my dad performed oral sex on me, and I guess I tried to ignore it. So I kind of just kept playing, and he took it out of my hands saying that I had to grow to like that.She testified that the "oral sex was performed twice," both times in J.R.C.'s room, and that "no one was home" when this happened.
A.C. claimed that on a different occasion defendant placed her on a kitchen table and kissed her. She testified, "he would say that I had to learn how to kiss, because it was what it [sic] was going to do when I was older." She testified that these were "open-mouth kisses" on the lips.
As we discuss below, the court determined in advance that her testimony about kissing was admissible as evidence of other crimes or wrongs under N.J.R.E. 404(b).
A.C.'s weekend visits with defendant stopped after he tried to force her to touch his penis. She testified:
Defense counsel raised the incident on cross-examination, to elicit A.C.'s reasons for deciding to stop visiting her father.
I started getting scared because there was an incident where I was laying down on the bed and my father laid over me with his pants down . . . .Defendant "grabbed" her hand "to touch it," but A.C. "pulled away." Although she did not tell her mother what happened, A.C. testified, "I felt something was going to happen to me, so I asked my mom not to let me sleep over any more." The overnight visits stopped after this encounter.
. . . when my dad pulled his pants down, he put my hand on his penis. And from what I remember, I went to sleep and that worked. And I went home and I told my mom I didn't want to sleep over my dad's house any more. And she knew something happened, but I was too embarrassed to tell her what, so she didn't really know.
In 2009 or 2010, however, A.C. moved in with defendant for a brief time. She testified that she had been acting out and experiencing anxiety, and A.D.S. "just didn't really know how to handle it." A.C. testified that she "voluntarily went back" to defendant's house, but also said that A.D.S. "asked me to stay with my dad." A.C. testified that she lived with him for "about a year and a half." By this time, defendant had gotten married and was living in Irvington with his wife.
A.C. decided to tell her mother about the abuse after the incident at Best Buy in December 2011. A.C. testified that, in the store, defendant asked her to "give him a kiss" and she told him "to stop." After leaving the store, defendant told A.C. about a dream he had in which he and A.C. were having sex.
A.D.S. testified briefly as a fresh complaint witness. She acknowledged that A.C. was prone to mood swings and ran away from home "a few times," explaining that A.D.S.'s husband had passed away and A.C. "took it really hard." A.D.S. testified that she told defendant, "I really need help with her," and asked him to take in A.C. Whereas A.C. recalled that she lived with her father for a year and a half, A.D.S. testified that the duration was "maybe months." After A.C.'s disclosure in January 2012, A.D.S. told A.C. not to see defendant any more, but A.C. subsequently contacted defendant twice.
After the State rested, defendant filed a motion for acquittal, which the court denied.
Defendant testified through a Spanish interpreter. In response to A.C.'s testimony, he offered general denials of any sexual abuse. He also gave his own account of why A.C.'s overnight visits stopped in 2003. He testified that during one visit, she locked herself in the bathroom for several hours and then asked him to bring her back to A.D.S.'s house. A few days later, he was told by A.D.S. that the overnight visits would stop because A.C. "was feeling uncomfortable."
Defendant also attempted to provide innocent explanations for many of his statements during the recorded phone call. On direct, he was asked to explain what he was saying in the places where the transcript had an "indiscernible" notation. Defendant was given additional opportunities during cross-examination to explain his statements on the recording.
Regarding his comment to A.C. that he did not touch her "with mischeavousness [sic]," defendant testified, "we used to play around, like horseplay, and we used to run and that's what I was saying," but insisted he "never touched her in a sexual manner." He also sought to rationalize his statement, "it's true that there was a time that I kissed you in the mouth." He testified that he "wanted to explain to her like it wasn't some kind of abuse or it wasn't force. I picked up my baby girl and I gave her a kiss — like a hug." Asked to restate his answer to A.C.'s question whether he remembered kissing her on the vagina, he testified, "Here I'm saying no, I would be lying. I don't remember that. I don't honestly remember."
Defendant admitted calling A.C. his "girlfriend," but stated he did not intend to convey any sexual meaning. He also admitted that he discussed a "sexual dream" with A.C. after shopping at Best Buy, but insisted that the dream did not involve A.C. and that he was simply confiding in his seventeen-year-old daughter. Nonetheless, he admitted that he told A.C. that it "was not for [him] to ask her about that."
With respect to A.C.'s charge that he kissed her on the vagina, defendant conceded that he said "maybe he fell in love without noticing," but insisted that this statement was "[n]ot regarding my daughter." He admitted telling A.C. "to be strong," but denied that it was because he had harmed her, testifying, "she was confusing me because I had never expected my daughter to be in that kind of situation and that's why I was telling her to be pretty strong." Defendant admitted that he told A.C., "I'm the guilty one," and that when asked "why [he] did it," he had responded, "I don't know why I did it."
Defendant testified that he "was surprised" by A.C.'s accusations during the phone call. Asked why he did not vigorously and emphatically deny her assertions, defendant claimed he was afraid she might harm herself if he did. He asserted that A.C. had a history of running away or acting out "when she wants something and it doesn't come out the way she wants." In contrast to his response in the phone call, he testified that "nothing that she was talking about had happened." He also testified that A.D.S. had called him once "and said I had no business going to see A.C. because otherwise she would be putting me in jail."
Defendant's brothers, J.R.C. and D.C., testified in his defense. To challenge A.C.'s claim that he was living with defendant when the assaults occurred, J.R.C. testified that he moved to El Salvador on February 1, 2003, and did not return to the United States until 2005. He presented his passport to corroborate the departure date. J.R.C. also testified that he did not see anything that caused him to suspect "any inappropriate contact" between defendant and A.C. and that he never saw defendant take A.C. into the bathroom. D.C. testified that he lived next door to defendant from 2001 to 2004 and that in November 2004, he and defendant moved to a house in Irvington. D.C. testified he did not see anything that caused him to believe defendant was "sexually assaulting" A.C.
J.R.C.'s passport did not reflect his re-entry, which apparently was unlawful.
The jury found defendant guilty on all six counts. In his motion for acquittal or a new trial, defendant argued that the verdict was against the weight of the evidence, claiming there was insufficient proof that the abuse happened in the timeframe alleged in the indictment. He also argued that newly discovered evidence regarding J.R.C.'s move to El Salvador in 2003 warranted a new trial. Defendant raised several additional trial errors that he claimed required a new trial. These included that the court limited inquiry into A.C.'s mental health; admitted evidence of defendant kissing A.C. under N.J.R.E. 404(b); and unfairly handled objections by hearing them in open court more frequently during the defense case.
After hearing oral argument, Judge Ravin denied both motions in a thorough written opinion. Rejecting the weight-of-evidence argument, the judge held A.C.'s testimony and the recording were sufficient proof to find that the abuse took place when A.C. was between nine and ten years old. To the extent defendant raised doubt as to the dates, the judge stated the jury was entitled to credit A.C.'s testimony about when the abuse occurred. The judge also rejected each of defendant's arguments concerning claimed trial errors, all of which are renewed on appeal.
With respect to the newly discovered evidence claim, the judge applied the test established in State v. Carter, 85 N.J. 300 (1981). Under Carter, to obtain a new trial based on newly discovered evidence, the evidence "must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." Id. at 314. All three prongs must be satisfied.
Defendant's proffered evidence consisted of a number of documents that established J.R.C. was in El Salvador from February 1, 2003 until at least 2005. The judge found this failed to meet the first Carter prong, as it was not material to whether defendant committed the charged acts, and was cumulative of J.R.C.'s trial testimony. The judge also found defendant did not meet the second prong, as J.R.C. likely knew at the time of trial that these documents were available.
Finally, the judge found defendant failed to meet the third Carter prong, since the fact that J.R.C. was out of the country for some part of the 2003-2005 period did not establish an alibi for defendant. The judge also noted this evidence was repetitive of J.R.C.'s testimony that he only lived with defendant until February 1, 2003, when J.R.C. moved to El Salvador.
The court sentenced defendant on February 21, 2014 to an aggregate term of fifteen years, with a parole ineligibility period of 12.75 years pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed mandatory parole supervision for life pursuant to N.J.S.A. 2C:43-6.4, and assessed applicable fees.
Defendant presents the following points on appeal:
I. THE TRIAL COURT IMPROPERLY PERMITTED THE USE OF THE CONSENSUAL RECORDING AND TRANSLATION WHEN THE RECORDING AND TRANSLATION CONTAINED NUMEROUS INAUDIBLE PASSAGES.
II. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL PURSUANT TO RULES 2:10-1 AND 3:18-2, THAT THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE VIOLATING THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND UNDER ART. 1 PARA. 1 AND 10 OF THE NEW JERSEY CONSTITUTION, OR IN THE ALTERNATIVE, GRANTING A NEW TRIAL BASED UPON NEW EVIDENCE.
A. The Trial Court Improperly Applied the Standard for a Motion for Acquittal as the State Failed to Provide Evidence Which Would have Permitted the Matter to be Decided by the Jury.
B. The Trial Court Improperly Denied Defendant's Motion for a New Trial based upon New Evidence.
III. THE NUMEROUS ERRORS, WHEN CONSIDERED TOGETHER, CAST SUFFICIENT DOUBT ON THE VERDICT TO REQUIRE A NEW TRIAL.
A. The Court's Refusal to Allow Questioning as to A.C.'s Psychological Treatment/Condition Deprived the Defendant of a Fair Trial.
B. The Court allowed the consensual intercept, and accompanying translation, to be played where it referenced kissing which was not included in the indictment, as well as
testimony concerning same without a proper hearing and A.C.'s testimony in that hearing.
C. There is a notable difference in the form that the Court addressed objections during defendant's and defense witnesses' testimony as compared to the State.
D. The Court's failure to address the Defense request for a read back of defendant's testimony in conjunction with the interpreter's correction of his translation was plain error that deprived him of a fair trial.
II.
We review a trial court's evidentiary decision for "an abuse of discretion, i.e., there has been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015). However, we give no deference to the trial court's legal conclusions. Ibid. We uphold the facts found by the motion judge if they are supported by sufficient credible evidence in the record, but apply the law as we understand it to those facts. Id. at 403.
We begin with defendant's argument that it was improper to allow the jury to review the transcript of the phone call recording. Defendant contends the transcript was prejudicial, as the number of gaps in the transcription marked by the notation "indiscernible" gave the jury an incomplete picture of the conversation between defendant and A.C.
We review a trial judge's decision to permit the use of a transcript of a recording for an abuse of discretion. See Zicarelli, supra, 122 N.J. Super. at 239. We have found no error where transcripts were allowed into the jury room to assist the jury in understanding a recording. State v. De Bellis, 174 N.J. Super. 195, 199 (App. Div. 1980) (citing Zicarelli, supra, 122 N.J. Super. at 239-40).
We find no abuse of discretion here. Jurors were given copies of the transcript as an aid when the recording was being played, but the judge instructed them multiple times that the transcript was not evidence, and even denied the jury's request to review the transcript during deliberations. Moreover, in his testimony, defendant explained what he had said at several points in the conversation where the transcription was incomplete. His recitations usually did not deviate significantly from the translation in the transcript. The fact that he had the opportunity to clarify any gaps undermines his claim that he was prejudiced by the incomplete transcript.
Turning to admissibility of the recording, we review the trial judge's decision to admit the recording for an abuse of discretion. See Nantambu, supra, 221 N.J. at 408. Defendant argues the recording is "largely inaudible." Having listened to the recording, we find ample support for the trial judge's conclusion to the contrary. Both defendant's and A.C.'s voices are audible for the entire conversation. A.C.'s voice is very clear, and while defendant's voice is more muffled, at no point is it so muffled that he cannot be understood at all. At times, his words are difficult to discern because they spilled out with increased speed, as he gave longwinded responses to A.C.'s accusations. The recording here is vastly different from the one in Driver, which the Court held was inadmissible because it was "garbled, full of static and other foreign sounds" and was "unintelligible and inaudible for the most part." 38 N.J. at 288.
This case is also distinct from Nantambu, supra, in which the recording stopped at a critical point in the conversation "when the recording device fell to the ground, causing the wires to disconnect and the device to shut off." 221 N.J. at 395. Even in that case, the Court held the omission did not require suppression of the entire recording. Id. at 406. Instead, in cases of recordings containing partial omissions, the trial court must hold a N.J.R.E. 104 hearing to determine whether the recording is unduly prejudicial under N.J.R.E. 403. Ibid. If the court finds the omission unduly prejudicial, "it must then consider whether the omission renders all or only some of the recording untrustworthy, and suppress only the portion of the recording that is rendered untrustworthy." Id. at 410-11.
In this case, there were no omissions or other flaws that render the recording itself untrustworthy. Unlike in Nantambu, the sound does not cut out at any point, and the entire conversation between A.C. and defendant is audible. We also find no error in the trial court's decision not to redact the portions of the recording deemed indiscernible. The court reasonably exercised its discretion in concluding that doing so would render the recording more confusing, not less. Furthermore, at trial, defendant "filled in the blanks" with respect to many of the indiscernible segments.
III.
We turn next to the denial of defendant's motion for acquittal or a new trial. In assessing the denial of an acquittal motion, we review the record de novo to determine "whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." State v. Dekowski, 218 N.J. 596, 608 (2014).
Defendant renews his argument that the State did not offer sufficient proof that the abuse occurred when A.C. was between the ages of nine and ten. We affirm substantially for the reasons stated in the court's opinion. The jury could credit A.C.'s testimony that the abuse happened when she was nine or ten years old, which is consistent with her statements in the recorded phone call as well as the allegations in the indictment.
The defense relies on the evidence that defendant stopped living at the house where A.C. asserted the assaults occurred in November 2004, as well as J.R.C.'s testimony that he moved out of that house in February 2003. While J.R.C.'s absence was inconsistent with A.C.'s testimony that he was living in the home at the time of the assaults, it did not directly contradict A.C.'s claim that defendant assaulted her. A jury could reasonably conclude, based on A.C.'s testimony and defendant's admissions, that the assaults occurred as alleged in the indictment, notwithstanding the discrepancy regarding J.R.C.'s presence.
Defendant's argument that he was entitled to a new trial fares no better. We will not reverse the denial of a new trial motion "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We apply essentially the same standard as the trial court, except that we give appropriate deference to the court's "feel of the case" and "matters of credibility." State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).
We affirm substantially for the reasons stated in Judge Ravin's opinion. With respect to the first and third Carter prongs, we agree with the judge that newly produced evidence demonstrating that J.R.C. was in El Salvador from February 1, 2003 until 2005 merely corroborated J.R.C.'s trial testimony. Moreover, J.R.C.'s presence in El Salvador did not establish an alibi for defendant at the time that the abuse was alleged to have occurred. We also agree that these documents were reasonably discoverable before trial, as J.R.C. must have known they existed before trial.
IV.
We turn next to defendant's argument that the cumulative effect of several other trial errors requires a new trial. As we conclude there was no error, we need not consider any cumulative effect.
A.
Defendant contends the court erred in barring him from questioning A.C. about her psychological treatment and diagnosis. He argues the State's reliance on the consensual intercept placed A.C.'s mental health in issue, because A.C. stated she was "thinking of" going to therapy. Defense counsel stated, in argument before the trial court, that he wanted to explore A.C.'s mental health history, including an alleged history of cutting herself, "to the extent that it has an impact on her ability to recall information." He also contended that evidence of A.C.'s mental health state would support defendant's claim that he did not directly contradict A.C.'s allegations because of her fragile mental health condition.
Defendant notes that pre-trial he unsuccessfully sought production of A.C.'s medical records, based upon documents provided by the Division of Child Protection and Permanency (DCPP). However, he does not appeal from the order denying disclosure, nor does the record include the DCPP records upon which defendant relied. Therefore, we are unable to consider his argument that A.C.'s statement in the recorded conversation that she was thinking of going to therapy was contradicted by what was found in the DCPP records.
Applying N.J.R.E. 403, the court found that any relevance of A.C.'s diagnosis, or evidence of alleged acts of self-harm, was outweighed by its tendency to confuse or mislead the jury, and to result in a time-consuming minitrial. The court exercises broad discretion in applying N.J.R.E. 403. See State v. Sands, 76 N.J. 127, 144 (1978). We will not disturb a trial court's decision "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
We discern no abuse of discretion here. Defendant presents no basis whatsoever for the assertion that A.C.'s mental health condition was relevant to her ability to recall information. To support defendant's assertion that he avoided directly contradicting A.C. during the phone call to avoid upsetting her, defendant was permitted to elicit substantial evidence regarding A.C.'s mental health, without exploring her specific diagnosis. A.D.S. testified that A.C. had mood swings, had run away from home, and was so unmanageable that she asked defendant to take residential custody of her.
Furthermore, A.C.'s communications with a mental health professional — which would necessarily encompass any formal diagnosis — are privileged. See, e.g., N.J.R.E. 505 (psychologist-patient privilege); N.J.R.E. 506 (physician-patient privilege). Apart from express exceptions set forth in the Evidence Rules, to pierce a privilege a defendant must show that a "constitutional right is at stake, or . . . a party has explicitly or implicitly waived the privilege." State v. Mauti, 208 N.J. 519, 539 (2012).
The record does not reflect what kind of mental health professional, if any, that A.C. was seeing. The standards governing the privileges vary. See State v. McBride, 213 N.J. Super. 255, 270 (App. Div. 1986) (recognizing that "the psychologist-patient privilege affords even greater confidentiality than the physician-patient privilege"), certif. denied, 107 N.J. 118 (1987).
We find no basis for concluding that A.C. waived her privilege. A.C. is a crime victim. She is not a party to this case, nor did she intentionally place her mental health in issue. Cf. N.J.R.E. 506(d) (there is no privilege over communications with a physician "in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient"). Even where a patient's mental health is in issue, the party seeking to pierce the privilege must demonstrate a "legitimate need" for the information, the communication was "relevant and material," and the evidence could not be secured from a "less intrusive source." Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1997); see also Arena v. Saphier, 201 N.J. Super. 79, 88 (App. Div. 1985). Defendant fails on all three prongs.
Notwithstanding her cooperation at the behest of her mother and law enforcement, there is no evidence that A.C. signed a criminal complaint against her father. Cf. McBride, supra, 213 N.J. Super. at 270.
Furthermore, the constitutional right to confrontation upon which defendant relies is not unqualified; it may be balanced against a compelling State interest, such as the interest in confidentiality of child abuse records. In re Z.W., 408 N.J. Super. 535, 539 (App. Div. 2009) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-61, 107 S. Ct. 989, 1002-03, 94 L. Ed. 2d 40, 58-60 (1987)). We held in In re Maraziti, 233 N.J. Super. 488, 496 (App. Div. 1989), that the due process clause, as interpreted in Ritchie, did not compel disclosure of communications protected by the attorney-client privilege where alternative sources of information regarding the victim's credibility were available. The psychologist-patient privilege is "placed on the same basis" as the attorney-client privilege. N.J.R.E. 505.
Defendant's claimed need to explore A.C.'s alleged diagnosis falls far short of the need addressed in State v. L.J.P., 270 N.J. Super. 429, 441 (App. Div. 1994), where a victim recanted to a psychologist. Also distinguishable is McBride, supra, where the victim suffered from an organic brain syndrome associated with confabulation, since the State relied on testimony of a treating psychologist. 215 N.J. Super. at 269-72. In sum, the court did not err in barring defendant from inquiring about A.C.'s treatment and diagnosis.
B.
Next, defendant contends it was an abuse of discretion to admit that part of the consensual intercept in which A.C. talks about defendant kissing her. The judge found the statements about kissing were admissible as evidence of other crimes or wrongs under N.J.R.E. 404(b) after applying the four-factor test in State v. Cofield, 127 N.J. 328, 338 (1992). The judge held the evidence was admissible for the purpose of showing defendant had the opportunity to perform oral sex on A.C. and touch her private parts. See N.J.R.E. 404(b).
The four factors are: (1) the evidence of the other crime must be admissible as relevant to a material issue; (2) it must be similar in kind and reasonably close in time to the offense charged; (3) the evidence of the other crime must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice. Ibid.
Defendant takes issue with the finding that the third Cofield factor was met, which requires that the "evidence of the other crime must be clear and convincing." 127 N.J. at 338. Defendant reasons it was error to rely on the recording itself to establish that the kissing occurred. We disagree. Nothing in Cofield bars a court from considering the proffered evidence as proof of the prior bad act. The recording plainly satisfies this requirement, as defendant openly acknowledged kissing A.C.
Defendant also takes issue with the fourth factor, which requires that "the probative value of the evidence must not be outweighed by its apparent prejudice." Ibid. Defendant apparently argues the probative value was minimal, given the assertion in his brief that "there was plenty of other evidence that the State could have relied upon." While there was some other evidence in the record of opportunity, the prejudice was not so weighty that the judge's analysis of this factor amounted to "a clear error of judgment." Nantambu, supra, 221 N.J. at 402. Accordingly, the judge did not abuse his discretion in admitting these statements.
C.
Defendant also claims, in the form of plain error, that he was denied a fair trial because the judge heard more objections at sidebar during the State's case than he did during defendant's case, which defendant asserts demonstrated a lack of neutrality. Having carefully reviewed Judge Ravin's responses to objections, we discern no error, let alone error clearly capable of producing an unjust result. See R. 2:10-2.
Trial judges have a duty to "insure a fair trial," State v. Taffaro, 195 N.J. 442, 450 (2008), and must not "telegraph to the jury any partiality to a given party's side." State v. O'Brien, 200 N.J. 520, 534-35 (2009). We see no evidence of partiality in the record. Whether an objection was discussed at sidebar was largely a function of whether one was requested, or whether the objection would require extended discussion or reveal information that should not be heard by the jury. The judge swiftly ruled in open court on straightforward objections to leading or repetitive questions, non-responsive answers, and hearsay. Defendant's argument on this point warrants no further comment. R. 2:11-3(e)(2).
We are unaware of any instance in which Judge Ravin refused a sidebar when requested, and defendant has not pointed to any. --------
D.
Finally, defendant challenges a curative instruction regarding the official interpreter's translation of the phrase "yo voy a salir adelante," spoken by defendant at trial. In his testimony, while explaining one of his statements on the recording, defendant apparently used the Spanish phrase, which was not included in the phone call transcript. The phrase was initially interpreted to mean "keep on keeping on," in the context of this testimony:
Because all of that that you're saying about being the 10 years, that I kissed you in your vagina and I touched you and I was kissing you, if a law enforcement authority were to hear something like that they would think I'm a sick person. And I would have -- and I know that I would have automatically be -- have problems. I'm going to keep on -- keep on -- keeping on -- but I am going to have quite a number of problems.When defense counsel asked what "yo voy a salir adelante" meant, defendant explained, as translated by the interpreter, that he was saying he was "just going to move on."
[(Emphasis added).]
During deliberations, the interpreter advised the court that he believed the correct interpretation of the phrase was actually "will I make it" or "I will pull through." Defense counsel initially requested a readback of defendant's testimony in which the phrase was used, but later abandoned that request and consented to a shorter clarification by the interpreter. After the judge told the jury the interpreter wished to correct a phrase from defendant's testimony, the interpreter stated, without providing the context in which the phrase was used:
I don't agree with the phrase "come out ahead" as a proper translation of S-A-L-I-R A-D-E-L-A-N-T-E. That's in my professional opinion. But to the extent that "move on, beyond or keep on keeping on," referring to persisting in the face of adverse circumstances could be better expressed with the words, I will make it or I will pull through, then I would agree with those interpretations.
On appeal, defendant argues, as plain error, that the court should have ordered a readback of defendant's testimony in which the phrase was used. We disagree. First, any error was invited, as defense counsel consented to the very response he now claims as error. See State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966). Second, the curative instruction was not plain error under Rule 2:10-2, as the judge appropriately exercised his discretion in deciding not to order a readback of defendant's testimony. See State v. Wolf, 44 N.J. 176, 185 (1965). The Spanish phrase was reviewed in detail during trial, such that the jury could connect the interpreter's clarification to the trial testimony without a readback. Furthermore, a readback may have inadvertently emphasized defendant's incriminating statements, such as "I'm the one that's guilty as far as everything . . . ."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION