State v. E.B.
State v. E.B.
Opinion of the Court
The opinion of the court was delivered by
Retried by jury following a mistrial resulting from jury deadlock, defendant E.B. was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second-degree impairing the morals of a child, N.J.S.A. 2C:24-4(a). The victim was his youngest of three daughters, seven years old when the alleged sexual abuse took place and nine years old when she testified. Two additional counts of the indictment alleging second-degree sexual assault and fourth-degree endangering involving another child, were severed. Defendant, protesting his innocence, refused to submit to evaluation by the Adult Diagnostic and Treatment Center. Accordingly, he was sentenced to state prison terms: consecutive terms of twenty years on each of the first-degree convictions, each with a ten-year parole ineligibility term, and a concurrent ten-year term subject to five years of parole ineligibility on the second-degree conviction. Appropriate
As is not untypical in cases of this kind, the proofs against defendant consisted solely of the charges made against him by the victim. There was no real corroboration, and defendant, who testified on his own behalf, vehemently denied them. Ultimately, the issue was simply one of credibility as between father and daughter. The jury heard the child’s version five times, four times on the State’s case. At least some of her allegations were repeated by the testimony of the detective who conducted a videotape-recorded interview of the child when she first made the charges. The jury also viewed the videotape-recorded interview and heard, in addition, the child’s testimony. The physician who examined the child several days after the charges were made and who found no physical corroboration thereof repeated the child’s allegations as part of the medical history she took. Finally, the child’s mother, called as a witness by defendant, obviously hostile to defendant but perhaps not technically so, testified to what the child had told her. The child’s testimony was admitted after a finding that she was a competent witness understanding the difference between truth and falsehood. The physician’s testimony was admitted pursuant to N.J.R.E. 803(c)(4) (statements made for purposes of medical diagnosis or treatment). The hearsay and prior consistent statement of the child were admitted pursuant to N.J.R.E. 803(c)(27) (statements by a child relating to a sexual offense). Against these multiple repetitions was only defendant’s denial. It is particularly in this context that we have concluded that defendant’s right to a fair trial was unduly prejudiced by the judge’s exclusion of testimony tending to corroborate a motive for what defendant claimed to be an invention and fabrication of sexual abuse where none existed. We are also constrained to note at the outset that we are extremely loathe to subject the child to yet another trial. But we are persuaded that a wrongful conviction of the acts here alleged is at least as intolerable as the acts themselves. And for the reasons we hereafter set out, we do not
The background of the family dynamics is relatively undisputed. E.B. and K.B. were married in 1985. Their daughter Anne
The immediate events leading up the charges occurred in 1997. In January of that year, K.B. filed a post-judgment motion in the matrimonial action seeking, among other relief, the elimination of the weekday parenting time on the ground that it unreasonably interfered with the children’s ability to participate in extra-curricular activities. That motion was granted, apparently on the
This is the substance of the proffer. According to Zorde, she received a complaint from Anne, the oldest girl. Anne’s complaint was that she had been made to feel uncomfortable by her father, E.B., who had tickled her. Zorde interviewed all three girls separately at school and Donald at home. She concluded that nothing other than horseplay had been involved and concluded that a charge of abuse was unsubstantiated. The April episode involved an event that took place at the home of defendant’s girlfriend, who has two children of the same ages as two of his, and apparently a fair amount of defendant’s parenting time was spent at her home, including weekend overnights. There was apparently a game played in the backyard with bamboo sticks, and Anne had been struck on the hand by a bamboo stick thrown by defendant. Again Zorde, after another interview with the girls, concluded that that complaint did not constitute abuse, and again found it to be unsubstantiated. The significance of the proffer, as we see it, lay in Zorde’s testimony respecting the girls’ attitude towards their father. According to Zorde, each of the girls, including Carol, told her that they did not want to see their father and that they knew that if charges of abuse had been sustained they would not have to see him again. Zorde also testified that Anne expressed her disappointment at DYFS’s inability to “help
We come now to the charges and the weekend of July 5, 1997. Defendant picked up the children for visitation on Saturday morning. He was initially to have had the children for a week, but had told K.B. on the previous Thursday that he would be unable to do so and would return them Monday morning. K.B., so she testified, was annoyed and angry at this change of plan since she had to rearrange for child care for that week. According to her testimony, following their return to her on Monday morning, Carol was visibly upset and finally, on Wednesday evening, July 9, told her what was troubling her, namely the specific actions of her father that made her feel uncomfortable. K.B. reported the conversation to the prosecutor’s office, and the next day, she, the four children, and her boyfriend whom she later married saw Detective Roy Ayeock. His videotaped interview with Carol took place that day.
According to Carol, and as she also testified at trial, her father’s abuse of her had been going on, from time to time, lor about a year. She described this abuse as his “licking her private” or “licking her vagina,” “rubbing his private against my private,” and, on one occasion, requiring her to “lick his private.” These episodes, of which she was able to recall several specific ones at trial, took place at night, at various locations in the apartment. She recalled his having carried her to his bed in his bedroom or to the bathroom. She recalled that he took her to the bathroom where,
Following the interview, Carol was examined by a pediatrician, specializing in child abuse cases. Although she found some redness in Carol’s hymenal area, she could not attribute that finding to the abuse Carol alleged although she concluded that the redness was not inconsistent with such abuse. The pediatrician also testified that while she “was not convinced,” she referred Carol for counseling since therapy was indicated whether or not the abuse had actually taken place.
As we have pointed out defendant testified, absolutely denying the charges and attributing them to the maliciously motivated actions of his former wife. The jury evidently believed the child and found him guilty as charged.
In challenging the judgment of conviction, defendant raises the following issues:
I. DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO COMPULSORY PROCESS, TO CONFRONT WITNESSES AND TO A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO PERMIT DEFENDANT TO OFFER EVIDENCE CONCERNING THE FAMILY’S HISTORY WITH THE DIVISION OF YOUTH AND FAMILY SERVICES AND TO CALL WITNESSES WHO HAD RELEVANT TESTIMONY TO OFFER NEGATING DEFENDANT’S GUILT.
II. DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURTS FAILURE TO EXCUSE JUROR NUMBER 8 AND TO VOIR DIRE THE REMAINING JURORS.
III. DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BY THE TESTIMONY OF DETECTIVE ROY AYCOCK.
IV. IN VIOLATION OF DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL THE TRIAL COURT PERMITTED TWO WITNESSES TO GIVE FRESH*343 COMPLAINT TESTIMONY WITHOUT FIRST HOLDING A HEARING. THIS ERROR WAS COMPOUNDED BY THE TRIAL COURT’S FAILURE TO GIVE THE JURY A LIMITING INSTRUCTION REGARDING THE TESTIMONY.
V. THE TRIAL COURT ERRED IN ADMITTING THE VIDEOTAPED STATEMENT OF H.B. CONTRARY TO DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO CONFRONTATION AND TO A FAIR TRIAL.
VI. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL REQUIRING A REVERSAL OF HIS CONVICTION.
A. Defense Counsel’s Failure To Request A Michael’s Hearing.
B. Defense Counsel’s Failure To Object To Highly Prejudicial Fresh Complaint Testimony.
C. More Instances Of Defense Counsel’s Failure To Object To Highly Prejudicial Inadmissible Testimony.
D. Defense Counsel’s Failure To Make A Timely Motion For H.B.’s Psychological And Medical Records And To Have Her Submit To An Independent Psychological Evaluation.
VII. FEDERAL AND STATE DUE PROCESS REQUIREMENTS, AS WELL AS THE CANONS OF JUDICIAL ETHICS SHOULD HAVE CAUSED THE TRIAL COURT JUDGE WHO PRESIDED OVER THE [DEFENDANT’S] MATRIMONIAL PROCEEDINGS TO RECUSE HIMSELF, PARTICULARLY WHERE DEFENDANT WAS REPRESENTING HIMSELF PRO SE.
VIII. IN VIOLATION OF DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS THE TRIAL COURT FAILED TO APPROPRIATELY WEIGH THE STATUTORY AGGRAVATING AND MITIGATING FACTORS, IMPOSED AN EXCESSIVE SENTENCE AND INAPPROPRIATELY IMPOSED CONSECUTIVE SENTENCES, NOT WARRANTED BY THE FACTS OR BY THE LAW.
IX. IN VIOLATION OF DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE TRIAL COURT MADE A FINDING THAT DEFENDANT IS A REPETITIVE AND COMPULSIVE SEX OFFENDER WITHOUT AFFORDING HIM A HEARING.
We are satisfied that there is merit in the challenge to the exclusion of Zorde’s testimony. Before addressing that issue, we point out that her testimony was the only proffer made at trial regarding the family’s history with D.Y.F.S. Defendant raises a much broader issue on appeal, suggesting that during the years following the couple’s separation, K.B. had made numerous com
Zorde’s testimony was excluded based on the judge’s ruling that it was not relevant and that even if it were, “the prejudice, the necessity to go through and have testimony as to all of the underlying fact would be so time-consuming and it would be unnecessary. I’m not going to permit that testimony.” At this point, we note that the original basis of the proffer was the suggestion that during the course of the interviews, Zorde, by the nature of her interrogation, might herself have inadvertently planted the idea of sexual abuse in Carol’s mind and might even have suggested the acts Carol ultimately charged him with. It became clear during the proffer, however, that there was no sexual content at all during the interviews and did not need to be. Defense counsel then urged admission of the testimony on the ground “that it goes to the core of the State’s case in that it gives ... [Carol] a motive to lie.” We agree.
We are aware that the trial judge is accorded broad discretion in determining whether or not to admit evidence alleged to be relevant and has, as well, broad discretion in determining that even relevant evidence should be excluded if its probative value is outweighed by undue prejudice or undue delay. See N.J.R.E. 403. See also State v. McDougald, 120 N.J. 523, 577-578, 577 A.2d 419 (1990). Consequently, the trial court’s ruling in this regard is entitled to deference unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See, e.g., State v. Koedatich, 112 N.J. 225, 313, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d
To begin with we have no doubt of the relevance of Zorde’s testimony. This was a case based on credibility alone. Certainly the desire of the children, particularly Carol, not to see her father and her understanding, before she made these charges, that substantiated charges of abuse would relieve her of the necessity of seeing him, could have constituted strong motivation to invent or fabricate. Of course, that testimony cuts both ways. A jury would certainly be justified in concluding that the real reason Carol did not want to see her father was precisely because of the abuse. The jury could also, however, conclude to the contrary. The point of course is that defendant had a right to have the jury evaluate that motive testimony since it could have provided the jury wúth a credibility-impeaching inference. Moreover, we see no basis at all for concluding that admission of that relevant evidence would have unduly delayed or prejudiced the trial.
We find the exclusion of Zorde’s testimony particularly egregious in view of the evidential consequence of N.J.R.E. 803(c)(27) of permitting the repeated admission of the child’s extra-judicial statements even where the child herself is fully competent to testify and does testify. We understand the significant interests that led to the adoption of N.J.R.E. 803(c)(27) and the attempt of that rule to effect a reasonable balance between the State’s
Because we have concluded that there must be a retrial of the charges, we do not address those challenges by defendant that are mooted by that event, including the failure of the trial court to excuse juror number 8, the alleged ineffectiveness of trial counsel, the presiding over this trial by the judge who presided over defendant’s matrimonial proceedings, and sentencing issues.
We reject the issues defendant raises challenging the admission of hearsay and the videotaped interview. N.J.R.E. 803(c)(27), as interpreted by State v. D.G., supra, 157 N.J. 112, 723 A.2d 588, permits it in principle. We do not, however, foreclose defendant
Finally, we reject defendant’s fresh-complaint objections. See generally State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990). As we view it, N.J.R.E. 803(c)(27) constitutes an exception to the fresh-complaint rule when child sexual-abuse allegations are involved, and we read State v. D.G. as constituting N.J.R.E. 803(c)(27) as an exception to the prior consistent statement rule of N.J.R.E. 607 as well.
The judgment of conviction is reversed, and we remand for a new trial.
The names ascribed to the children of E.B. and K.B. are all fictitious to protect their anonymity.
We note that in its 1998 report, the Supreme Court Committee on the Rules of Evidence, in recognition of the danger of multiple retellings, recommended deletion of N.J.R.E. 803(c)(27) in its present form, to be replaced by a rule excluding hearsay and evidence of prior consistent statements in those cases where the child victim is able to give "full and cogent" testimony. See Committee Report, 151 N.J.L.J. 729-730 (1998). This proposal was not adopted.
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. E.B.
- Cited By
- 12 cases
- Status
- Published