On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.
Defendant was convicted of aggravated sexual assault, N. J.S.A. 2C:14-2a; sexual assault, N.J.S.A. 2C:14-2b; and impairing and debauching the morals of a child, N.J.S.A. 2C:24-4a. He was sentenced to concurrent terms of 15 years, seven years and four years on the respective counts, and assessed a Violent Crimes Compensation Board penalty of $75. The victim was defendant's 2 1/2-year-old granddaughter.
After an acrimonious divorce, defendant's son and his family were given substantial visitation rights concerning the victim, N.R. The visitation order of April 1983 envisioned that the father's parents, defendant and his wife, would babysit two days a week while the mother was at work, and that this visitation would take place at defendant's home. N.R. would stay at her grandparents' home from Friday morning through Saturday evening.
In December 1983 the victim's mother noted a change in the child's behavior. She began complaining that her "peepee" hurt and that it burned when she went to the bathroom or took a bath. The child would scream and cry if the mother even attempted to put cream on it. During the next month both the mother and another babysitter noted that the child's sleeping patterns had become disturbed and that she would awaken screaming in the middle of the night or from her afternoon nap. The child would not respond when asked what was bothering
her. Due to this behavior the mother immediately scheduled the child's upcoming six-month examination with her pediatrician. Alerted by the mother to the possibility of sexual abuse, the pediatrician focused his examination on the anal-vaginal area and found no bruises, marks, irritation or signs of infection. Due to N.R.'s young age, the pediatrician thought it physically impossible that there had been anal or vaginal penetration, but felt it "imperative" that the mother contact the Division of Youth and Family Services (DYFS) and insisted that the call be made before the mother left his office. DYFS immediately commenced its investigation, and the mother ceased having the child go to her paternal grandparents for visitation. Both the mother and her babysitter, a cousin of the mother, noticed that the symptoms subsided within weeks after this visitation ceased.
On February 9, 1984, after the victim indicated sexual activities with defendant, Detective Mazzei of the Somerset County Prosecutor's Office met with defendant for the purpose of discussing these allegations. After being given his Miranda rights, defendant initially denied that he had been sexually involved with N.R. Mazzei then showed defendant a drawing of a female child and male child, with circles around the female genital area and the male child's chest. The detective told defendant that the child circled these areas, alleging where defendant had kissed her and where she had kissed him. Furthermore, defendant was told that the detective had a tape recording of N.R.'s allegations and that it would be played for defendant if he wanted to hear it. Defendant exhibited no interest in hearing the tape. Mazzei then asked defendant to explain how such a young child could make the markings contained in the drawings and provide the statements on the tapes. Defendant responded by asking what would happen if he denied the acts. Mazzei explained that the investigation would continue and if enough evidence developed, the matter would be presented to a court and the child would be brought in to tell her side of the story. Defendant then became sullen, put
his head down, and after not saying anything for a minute or two, told Mazzei what had transpired.*fn2
According to Mazzei, defendant explained that one morning in January 1984 he arrived at home approximately 12:30 a.m., after having a few drinks. N.R. indicated that she needed to go to the bathroom and defendant assisted her. After she completed a bowel movement, defendant wiped her behind and vaginal area. While doing this and sitting on the edge of the tub, his penis became exposed. N.R. asked him what it was and he replied that it was his penis and asked her if she would like to touch it. She did so and defendant then asked her if she would like to kiss Grandpa's penis. He let her do so. Mazzei at that point terminated the informal interview and decided to obtain a formal taped statement which defendant agreed to give. Defendant was again advised of his Miranda rights and the taped statement was given which expanded upon the original informal statement. Defendant further noted that when he placed N.R. on his lap to aid her in pulling up her pants, his penis touched her vagina. He also admitted placing his penis in the child's mouth, but denied ejaculating.
Defendant testified in his own behalf. He stated that after being told of N.R.'s allegations of a sexual assault and being confronted with the drawings and taped statement, he still denied committing any sexual offense. However, upon being informed that his wife and the child would be brought in for questioning, and knowing that his wife had previously been hospitalized for nervous breakdowns, he agreed to give a taped statement. This agreement, however, was in response to Mazzei's
assertion that if defendant gave the statement the investigation would be over. He, therefore, concocted the statement; his reasons for falsifying being that he did not wish his granddaughter or wife to be brought in for questioning. He claimed that the details on the tape were suggested by Mazzei, not in so many words, but at least by suggesting the areas that should be encompassed by the testimony.
One of the main witnesses for the State was Dr. Martin Krupnick, a clinical psychologist specializing in the field of incest and childhood sexual assaults. He interviewed N.R. three times in September 1984. During at least one of these interviews N.R. was given anatomically correct dolls to facilitate her expressing herself concerning what had occurred. These dolls previously had been used by the prosecutor's office, and, in fact, N.R. had given them the names of "Grandpa [R]" and "baby [N]." Dr. Krupnick testified that N.R. was suffering an acute phase of a "post-traumatic stress disorder." This disorder was triggered by a major traumatic event outside of the normal human experience, namely a sexual assault. He further acknowledged that the child's description of what had occurred might have been the result of prompting arising from the marital discord, but that such a diagnosis was inconsistent with the behavior exhibited by N.R. He noted specifically:
Q. Other than her behavior that was reported to you, you say that you noticed specific behavior of hers yourself when you examined her that you felt was significant in formulating your diagnosis?
A. Yes. When using the anatomically correct dolls -- these are dolls that are used to allow a child to facilitate an expression of what has gone on in her past experience, and using these anatomically correct dolls, she was able to act out and demonstrate a sexual assault, specifically talked about the penis being placed in the mouth of the young female.
During that time she showed a lot of anxiety, fear. She was very uncomfortable and requested that we terminate rather quickly from that part of the examination.
Q. Did she use the doll as a specific person?
A. Yes. She named the male doll Grandpa [R] doll and the female doll baby [N].
At a voir dire hearing the victim was determined incompetent to testify. She was but three years old at the time of the trial, and, although the trial judge tested her competency using appropriate audio-visual insulation from the courtroom setting, he determined that she was incapable of dealing with the concept of lying and telling the truth, and it was inappropriate for her to testify.*fn3 State in the Interest of R.R., 79 N.J. 97, 113-14 (1979). We here determine, however, that such a finding would not preclude the substantive admission of her statements to the doctor.
Defendant has raised three issues on appeal:
The trial court committed plain error by not charging the jury as to the limited admissibility of the basis underlying the expert witness's opinion. (Not raised below).
The sentencing court clearly abused its discretion by imposing a manifestly excessive sentence.
The conviction for sexual assault and the conviction for endangering the welfare of a child must be vacated, as they merge with the aggravated sexual assault conviction. (Partially raised below).
A. Use of Statements as Basis for Expert's Opinion.
Absent Dr. Krupnick's testimony, the sole evidence against defendant was his confession to the detective. It is firmly established in our law that "an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." State v. Lucas, 30 N.J. 37, 51 (1959). The corroboration required by Lucas ...