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State v. Donegan

Decided: May 17, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENNIS PATRICK DONEGAN, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Atlantic County.

Antell, Skillman and Villanueva. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

After a trial before a Superior Court Judge sitting without a jury, defendant was convicted of sexual assault, N.J.S.A. 2C:14-2b, endangering the welfare of a child, N.J.S.A. 2C:24-4, and child abuse, N.J.S.A. 9:6-3. The victim of these crimes was L.M., the six year old daughter of B.M. Defendant was acquitted in the same trial of committing identical offenses upon J.M., L.M.'s four-year old sister. At the time of the criminal events alleged, between June 1, 1990, and September 14, 1990, B.M. and defendant were engaged to be married and were living together, with B.M.'s daughters, in defendant's home.

On appeal, defendant challenges the admission of a videotape recording of a police interview with L.M., and also the court's ruling limiting his cross-examination of B.M. The material facts follow.

On September 14, 1990, the children's Aunt Joan*fn1 unexpectedly came upon defendant and J.M. sitting together on a sofa. The aunt saw J.M. move away from defendant while wiping her mouth. She also heard the child exclaim "Yuck." J.M. later told the aunt that defendant had put his tongue in her mouth. Upon further questioning the aunt learned that defendant had been engaging in sexual relations with both of the girls. The police were notified and on the morning of September 17, 1990, B.M. and the aunt

brought the girls to the prosecutor's office. After a preliminary interview, Lieutenant Kauffman referred them to their pediatrician who, after an examination, reported irritation to the vaginas of both children. In L.M.'s case he also reported a slackish tear of the labia majora. The group then returned to the prosecutor's office where, later that day, the videotaped interview was held.

Before the trial began, the State moved, pursuant to Evid.R. 63(33), for the admission of various out-of-court statements, including the September 17, 1990, interview. After a hearing pursuant to Evid.R. 8, the State's motion was granted. The court concluded that

Considering the totality of the circumstances, on the basis of the time, content and circumstances of the statement, there is a probability of trustworthiness of the video of 9-17 in which L.M. relates what happened to her.

In reaching that Conclusion the court took into account the fact that L.M. would be testifying at trial and would therefore be subject to cross-examination, that the interviewing room and atmosphere were not coercive and that the questions were neutral; that Lieutenant Kauffman, who conducted the interview, displayed no partisanship, and that L.M.'s statement was vivid and detailed in a way that one would not normally expect from a young child unless she was recounting something she had personally experienced. The court also noted that L.M.'s prior Discussions with other people did not affect the spontaneity of her videotaped statement and that L.M. had not been coerced into saying what she did.

Insofar as relevant, Evid.R. 63(33) provides:

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 . . . .

The Rule was adopted in response to the observation of the Supreme Court in State v. D.R., 109 N.J. ...


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