On appeal from the Superior Court, Law Division, Monmouth County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton J. Greenberg, P.J.A.D.
[200 NJSuper Page 562] Defendant was indicted in Monmouth County for aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)), sexual assault (N.J.S.A. 2C:14-2(b)) and endangering the welfare of a three-year-old child (N.J.S.A. 2C:24-4(a)). The alleged victim, defendant's daughter, was born March 4, 1980. The time of the offenses was specified in the indictment as between March 29, 1983 and May 10, 1983. Prior to the trial on the State's motion over defendant's objection the indictment was amended by the court to fix the time of the offenses as between December 1, 1982
and May 10, 1983 when the infant was between 33 and 38 months old. Defendant pleaded not guilty to the indictment.
Defendant served two pretrial motions which he conceived would aid him in ascertaining the capacity and credibility of the infant as a witness. The first filed November 3, 1983 asked that she be examined by a psychiatrist and psychologist he would retain to determine her competency as a witness. On November 16, 1983 defendant filed a supplemental motion asking that the infant be examined by a psychiatrist and psychologist retained by him to determine whether in light of her age she had sensory or mental defects relevant to an assessment of her credibility. The State objected to these motions and they were denied by order of December 2, 1983.
At pretrial proceedings on January 5, 1984 defendant made two motions. He asked for a postponement of the trial so he could obtain a psychiatric examination of the infant but this motion was denied. The second motion related to possible prejudice from a television movie. Defendant was aware of the scheduling for telecast on Monday, January 9 of a movie entitled "Something About Amelia," dealing with an incestuous relationship between a father and a teenage daughter. The program had been heavily advertised thus causing defendant to be concerned that jurors who watched the show might be prejudiced against him. Accordingly he moved for an instruction from the judge to the jurors that they not watch the show. The judge did not rule on the motion on January 5. The jury trial started on Monday, January 9, 1984 and was continued for three more days until January 12, 1984. At the outset of the proceedings on January 9, 1984 defendant renewed his request concerning "Something About Amelia." The judge denied the motion but indicated he would give the jury cautionary instructions concerning the show.
The evidence at the trial showed that defendant and the child's mother were married in 1977. Defendant's wife worked with autistic children and understood behavior modification.
The infant was raised in an open manner without inhibitions concerning her body and was thus taught the proper names for the anatomy. Defendant routinely bathed with her.
On December 1, 1982 defendant's wife left the marital home and moved to a different municipality. Defendant and his wife then orally agreed to share custody of the infant. According to defendant's wife, several months later the infant told her of conduct by defendant that we need not detail but which might constitute a sexual assault. The wife confronted defendant with this information but he denied it. In April 1983 defendant's wife took the child to Boston for a visit with the wife's sister. The sister testified at the trial and described being told by the infant of conduct by defendant that would indicate she may have been the victim of a sexual assault.
There were no eye witnesses to the offenses other than the infant nor was there any substantial physical evidence of the offenses though the wife did indicate that in May 1983 she noted the infant's vagina was red and swollen. A physical examination by a physician the following day showed no evidence of sexual abuse, a result which did not conclusively demonstrate there had been no abuse.
In May the matter was formally reported to the Division of Youth and Family Services and the police and on May 25 defendant was advised by his wife's lawyer he was initiating divorce proceedings. The indictment was returned June 14, 1983 and the following month defendant's wife filed the divorce complaint.
Obviously the infant's testimony was crucial. Defendant challenged her competency but the court allowed her to testify though the judge was understandably concerned about difficulties in obtaining her evidence. Consequently before she testified the judge in the presence of the jury told the infant that if what she said was "real" she would get ice cream. The infant then related acts constituting the sexual assaults. At the conclusion of her direct examination the infant refused to
testify without the ice cream. The judge then said to her in the presence of the jury that "I told you [her name] if you told real things and not pretend things, I would give you an ice cream, right?" After the witness said "Yes," the judge said "Okay. You're going to get it." She was then given the ice cream in the presence of the jury.
The infant then testified on cross-examination, apparently while eating the ice cream. When the testimony was completed the infant at the judge's direction came around to his bench and the following ensued in the presence of the jury.
THE COURT: Did you tell us everything that was real?