On appeal from the Superior Court, Law Division, Monmouth County.
Dreier, Ashbey and Landau. The opinion of the court was delivered by Ashbey, J.A.D.
Following a report to the Division of Youth and Family Services concerning possible sexual abuse on N.W., then three years old, and a medical examination which revealed no evidence of penetration, defendant Robert M.*fn1 was indicted for three counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1), sexual assault, contrary to N.J.S.A. 2C:14-2b, and endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a. In the course of other pre-trial procedure, the State had advised the court that the child would not testify because she could not remember.*fn2 The State sought to have admitted in evidence statements which the child had made to DYFS workers. On leave granted, the State appeals from the pre-trial order of the trial court which denied the State that opportunity.
A statement by a child under the age of 12 relating to a sexual offense under the Code of Criminal Justice committed on, with, or against that child is admissible in a criminal proceeding brought against a defendant for the commission of such offense if (a) the proponent of the statement makes known
to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 8(1), 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 testified 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 the requirements of paragraph (b) of Rule 17. [Emphasis added.]
Applying that Rule, the trial court excluded the DYFS worker's testimony as untrustworthy.
According to the February 24, 1988 report which was admitted in evidence at the Evid.R. 8 hearing, the police had an anonymous report that N.W. was sleeping and bathing with a man she lived with. She had head lice and body sores and a neighbor saw her "lick the man she lives with pants leg [ sic ]." Testimony revealed that the child had been the subject of prior Division of Youth and Family Services (DYFS) investigations.
At some unspecified prior time a file had been opened, and the Division had investigated defendant's home, based on an allegation, apparently made by an older woman also living there, that the house in which she was living smelled of urine. The worker was told that the child had been left with defendant because her mother had deserted her.*fn3 At this hearing the worker noted that, following the investigation, defendant had improved the conditions in the house, and another worker had maintained supervision. Somewhere between the time of this earlier investigation and the current sexual assault charges, it appeared that the child had been cared for during the day by another family. Much of the cross-examination of the DYFS worker who testified was based upon the fact that the circumstances of this household were unknown to her at the time she interviewed the child and obtained the statements at issue. Apparently this household contained one adult by the name of
Robert and at least one older child also known by that name. In fact the adult named Robert appeared to have been charged with sexual misconduct against the child named Robert. While the worker indicated no such abuse was substantiated, a third child had been removed from the house because of sexual misconduct. These facts were relevant in the light of the child's reference to "Bobby", and concerning whether the potential for confusion made her identification untrustworthy.
At the Evid.R. 8 pre-trial hearing the State's only witness was Barbara Fraley, a DYFS worker of 15 years. She testified that on February 26, 1988, she and Kathy Schaefer Millsap,*fn4 social workers for DYFS, met with defendant and N.W. at the agency's office. Defendant was interviewed by an agency supervisor, while N.W. was taken into the office playroom by Millsap, assisted by Fraley. Once in the playroom, N.W. began to play with various toys while the two workers sat down, watched her and began talking with her. They asked N.W. what games she played. N.W. told them that she played "the sweetheart game" and "the foster child game" with "daddy." Fraley testified that N.W. did not describe these games. When asked who "daddy" was, N.W. responded by stating, "daddy Bobby," "daddy Bobby." The child also spoke independently of "Bobby," but Fraley said that to her they were the same person. The workers asked N.W. where she slept. N.W. replied that she slept with daddy, in his bed. The workers asked what daddy slept in, and N.W. indicated that he slept with no clothes on, while she slept in a nightgown and underpants. Fraley said that N.W. said that she could see daddy's "penie". Asked what the penie was, N.W. responded by pulling down the pants of the male doll, touched the penis and said, "this is daddy's penie." Asked if she ever touched daddy's penie, N.W. said yes and put the face of the little girl doll on
the penis of the male doll. She also stated that, "sometimes it broken." Fraley testified she asked if N.W.'s mouth was placed on daddy's penie. N.W. responded by saying yes, and that it tasted funny, that it tasted like "pooh-pooh". Fraley said the child said that she put medicine on daddy's penie and daddy put medicine in her "hiney", by which she pointed out the rectal area of the little girl doll. When asked where her penie was, she indicated the vaginal or rectal area of the female doll and said that it hurt. When asked if she did anything like this with anyone other than daddy, she said no.
On cross-examination Fraley could not recall if N.W. had been asked about her ability to tell truth from a lie, or when any of the incidents took place. She had not contacted the older woman who lived in the same household with defendant about the allegations, although the "worker in charge," Millsap, might have done so. Fraley had also not contacted a house-keeper who came in on a daily basis. Fraley was unsure whether the "sweetheart" game was a game that the child played at the baby-sitter's house. The child had not demonstrated how she and Daddy had slept together. Fraley said that she had special training "on [using] the dolls many years ago." She did not recall how the dolls were set up in the room. There were four sets of dolls which were homemade. Fraley said that the questions were not repeated because the child was very verbal. Fraley indicated that the day before the interview the child had been asked questions about the allegation that "she had been seen "burying her face in the pants of [defendant]", that she "put her face in [defendant's] lap and lick[ed] his pants[.]" The worker confirmed that the preferred method of questioning children was to have the child circle pictures to show where they were touched in an assault, but gave the opinion that the choice to use pictures or dolls would depend on how the worker felt in this interview. No tapes had been made of this interview.
At summation defense counsel argued that the only source for a time-frame concerning defendant's acts ...