On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Bilder, Baime and Wallace, JJ. The opinion of the court was delivered by Baime, J.A.D.
This appeal presents novel questions concerning the newly created victim-counselor privilege. N.J.S.A. 2A:84A-22.15 provides that a victim counselor has a privilege not to be examined as a witness with regard to any confidential communication. In addition to extending a testimonial privilege, the statute renders immune from discovery or legal process records of the victim's statements. N.J.S.A. 2A:84A-22.13. We hold that the privilege is sufficiently broad to encompass the confidential communications of both direct and secondary victims of violence. Statements made by the mother of a sexually abused child to the counselor are thus protected from disclosure. We also find no basis to require an in camera inspection of confidential files. Absent some compelling reason, we view even such a limited disclosure as a substantial dilution of the statutory privilege. Finally, we conclude that the mistaken release of confidential files by the victim's counselor does not constitute a waiver of the privilege. The privilege may be waived only by the written consent of the victim or his or her guardian.
Other important questions are raised concerning the "tender years" exception to the hearsay rule and the admissibility of confessions. Evid.R. 63(33) permits introduction of a child's statement relating to a sexual assault if, after a hearing, the court finds, among other things, that the declaration is trustworthy. We hold that the court may not consider the congruity of the child's statement and the defendant's confession in determining the trustworthiness of the declaration. The statement must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.
We also conclude that a police officer's promise to release a suspect from custody if he gives a statement does not, by itself, taint a confession. A police officer's promise, even if disingenuous, is merely one of the factors to be considered in deciding whether the defendant's will was overborne.
Tried by a jury, defendant was found guilty of three counts of aggravated sexual assault (N.J.S.A. 2C:14-2a(1)), three counts of second degree endangering the welfare of a child (N.J.S.A. 2C:24-4b(4)), and three counts of third degree endangering the welfare of a child (N.J.S.A. 2C:24-4a). The trial court sentenced defendant to an aggregate term of 55 years and ordered him to serve 27 1/2 years without parole eligibility. The codefendant, Robert Perozzi, was convicted of similar offenses at the joint trial. He was sentenced to an aggregate term of 30 years and was directed to serve 12 years without parole eligibility. Separate appeals were filed. This opinion pertains solely to the arguments advanced by defendant J.G.*fn1
On July 15, 1989, defendant's wife, who was blind, left her home for a 20 day training course at a "seeing eye dog" clinic in northern New Jersey. In her absence, defendant assumed sole parental responsibility for their four children who ranged in age from one to eight years old. During this period, defendant and Perozzi allegedly sexually abused the three oldest children. We need not describe in detail the sordid facts except as necessary to explicate our responses to defendant's arguments. Suffice it to say that defendant and Perozzi allegedly engaged in homosexual acts in the presence of the children, had them perform sexual acts with each other and with them, and photographed much of this aberrant conduct. In addition, defendant allegedly compelled each of the three children to
sleep with him on a rotating basis at which time he engaged in various sexual activities. Each of the children testified at trial and recounted the lurid details surrounding these crimes.
After the return of defendant's wife, she noticed that one of her children was having severe nightmares. Eventually, the child told her that she had been sexually abused by defendant. The local pastor, the family physician and the Division of Youth and Family Services were then notified. In varying degrees of detail, each of the children ultimately revealed what had transpired. Their statements were admitted at the trial under Evid.R. 63(33) after the Judge determined that the foundational requisites were satisfied.
The children's accounts of these incidents were given in a series of interviews conducted by Detective Carl Metroka, a member of the State Police, over a period of time. Defendant's daughter was the first to reveal defendant's sexual abuse. Thereafter, defendant's two sons confided in their mother that other sexual acts had occurred. Initially, defendant was confronted with his daughter's accusations. After waiving his constitutional rights, defendant gave an audiotaped confession in which he admitted that he digitally penetrated his daughter's vagina on three occasions. After defendant's sons divulged other sexual misconduct, defendant was confronted with each new accusation and, after waiving his constitutional rights, confessed to having sexually abused each of them. Following an Evid.R. 8 hearing, defendant's statements were admitted into evidence.
Both defendant and Perozzi testified at trial. Perozzi denied that he was present at defendant's residence when the offenses were committed. Defendant denied all allegations of sexual abuse. He testified that his confessions were untrue and were made only after the police convinced him he could return home if he were to give a statement.
We first consider defendant's arguments pertaining to the victim-counselor privilege. A brief recitation of the salient facts is necessary for a complete understanding of defendant's contentions. Following defendant's arrest, his wife and the three infant victims underwent counseling by Family Services of Burlington County, a private nonprofit mental health group. Family Services provides counseling to families and children where allegations of sexual abuse have been made or there is a history of child abuse. As part of the program, a clinical team of social workers, all of whom hold masters degrees in their specialties, provide counseling under the supervision of a board certified psychiatrist and a clinical psychologist.
Prior to trial, defendant's former attorney, Janet Zoltanski, served a subpoena on Family Services, demanding the files of the three children and their mother. Apparently unaware of the privilege, a clerk employed by Family Services complied with the subpoena and the files were delivered to Zoltanski who examined them. Upon learning of the release of the files, the trial Judge quashed the subpoena, ordered the return of the privileged documents and directed Zoltanski not to reveal their contents. The Public Defender's Office assigned another attorney to represent defendant.
Against this factual backdrop, defendant contends that (1) his wife was not a victim of the crimes alleged in the indictment and her file should have been released, (2) all of the files should have been submitted to the trial Judge for an in camera inspection to determine whether they contained confidential information and, if so, whether the constitutional right of confrontation served to override the privilege, and (3) the inadvertent production of the documents by Family Services constituted a waiver. We disagree with all of these claims.
The victim-counselor privilege was enacted by the Legislature in 1987 and has yet to be allocated as ...