On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Petrella, Conley and Villanueva. The opinion of the court was delivered by Villanueva, J.A.D.
Defendant appeals from his conviction of two counts of first degree aggravated sexual assault, a third count of second degree sexual assault and a fourth count of third degree endangering the welfare of a child. We reverse.
An indictment was filed in Burlington County charging defendant and co-defendant E.S.*fn1 with two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second degree sexual assault, N.J.S.A. 2C:14-2b, and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
On April 26, 1991, the trial Judge ordered that the records of the Division of Youth and Family Services (DYFS) concerning J.B., the victim, be submitted to the court for in camera review. The Judge thereafter released copies of the psychologist's reports to the prosecutor and defense counsel. The Judge heard pre-trial motions regarding the psychologist-patient privilege and testimony relating to the DYFS records, admissibility of similar prior convictions for impeachment purposes and other matters. The Judge denied defendant's request to allow evidence that the victim recanted to a psychologist with whom she had met at the request of DYFS. The Judge also ruled that similar prior convictions of both defendant and defendant's wife were admissible for impeachment purposes if either testified.
At trial, the State's evidence indicated that J.B., who was born on June 13, 1978, was living with her mother in 1988 in a Burlington Township apartment. Her father and two brothers
had moved to another residence. After brief stays in two separate foster homes over a period of four months, J.B. stayed with her father and brothers until Labor Day weekend, in September 1989, when she returned to live with her mother in another Burlington apartment. Defendant, who married J.B.'s mother approximately two weeks thereafter, also lived there.
After the marriage, defendant and J.B. had a father/daughter relationship. According to J.B., within one or two months of the marriage, when they were alone in the apartment, defendant began to touch her inappropriately in the breast and vaginal area, first through her clothing and later underneath it. At that time, J.B. never told anyone because she "just never thought about it [telling someone]." J.B. also stated that she didn't know how she felt about defendant's conduct but wasn't scared at first.
J.B. related a specific incident that occurred in October 1989, involving defendant and E.S. On direct examination, J.B. testified that both men touched her. Later, J.B. stated that she remembered E.S. touching her breasts but did not remember if defendant touched her that day. That particular day was not clear to her, but she testified that defendant had touched her vaginal area and put his finger in her vagina more than once; she just did not "remember the exact dates."
E.S. testified and admitted to rubbing J.B.'s breasts on that occasion. He also testified that he saw defendant rubbing J.B.'s "buttock area underneath her clothes" and then "noticed his hand go underneath between her legs . . . ." When first questioned by police, E.S. denied that anything happened. But, after being offered a plea agreement with a possibility of probation, he pleaded guilty and agreed to testify at defendant's trial. In his formal police statement, where he admitted touching J.B., E.S. said that he had not seen defendant put his hands under her clothing.
J.B. also testified about other incidents including one in which defendant told her to perform fellatio on him and he ejaculated in her mouth. J.B. stated that she did not tell anyone because she
was scared because at that time defendant had told her that if she "told anyone, he would get [her] pregnant."
J.B. also testified about two incidents of sexual intercourse with defendant. J.B. admitted having consensual sexual relations with R.D., a seventeen year-old friend of defendant, in August 1990, in the kitchen of the apartment when her mother was asleep in her room with the door shut and defendant was in the living room. J.B. testified that later the same evening defendant came into her room while she was in bed and "pulled [her] panties off" and had sexual intercourse with her and she thought "he -- it was [R.D.] until he had left." She further stated: "I didn't know that it was [defendant] at the time until he had left and when he left, he said, you thought I was [R.D.], didn't you?"
J.B. testified that there was a second incident of sexual intercourse with defendant but she did not remember when or what happened. Asked about subsequent incidents of intercourse with defendant, J.B. indicated that he had once approached her as she emerged from the bathroom. After forcing her to the floor and removing her clothes, he made her perform fellatio.
J.B. never reported these incidents to her mother or her friends. It appears from J.B.'s testimony that friends unsuccessfully questioned her about defendant and the friends' suspicions were ultimately conveyed to J.B.'s mother. J.B. was taken to a hospital, where she was examined by doctors and also spoke to the police to whom she gave a taped statement.
Afterwards, she went to stay with her aunt and uncle, defendant's sister and brother-in-law, for about one month. While staying there, J.B. wrote a letter dated September 14, 1990, to a Judge stating that the whole story was a lie. At trial, she stated that she copied the letter from one that her uncle wrote for her. J.B. testified that her trial testimony was the truth. On cross-examination, J.B. read the letter aloud,
Dear Judge, I am writing this letter to tell you I am very sorry for causing a big problem, lying about things that my stepfather had done to me. My stepfather did
not ever have any sex with me at any time. I am very sorry about saying this. I don't know why I did this. I hope you will forgive me. Thank you.
On cross-examination, she stated that she wrote the letter because she wanted a decent family that would include defendant: "All I wanted was like a mom and a dad . . . I was just going to give him a second chance." J.B. denied that she and defendant argued about her having boyfriends at the age of twelve but did admit that sometimes he was strict with her.
Called by the defense, Detective Bittner testified that he met with J.B. three times and ultimately J.B.'s mother and uncle told him that J.B. had made the whole story up.
The defense also called J.B.'s uncle, the defendant's brother-in-law, who testified that J.B. came to him "kind of crying" and said "Uncle Bill, I've been lying about everything, I'm sorry." He stated that she said she lied because her mother was not giving her enough attention and she was mad at defendant for punishing her. J.B.'s uncle stated that he and his wife then took J.B. to the police station to see Detective Bittner, along with J.B.'s mother. After he told the detective what J.B. had said to him, he said the detective took J.B. somewhere for about ten to fifteen minutes. He also said that before the detective took her to another room he asked her in front of the others if what her uncle said was true and she said "yes."
J.B.'s uncle also testified that the detective told him that he did not believe J.B. was now telling the truth. J.B.'s uncle therefore consulted a lawyer who advised him to write a letter and "have it signed and notarized." He drafted a letter but after being informed by the lawyer that J.B. should write it in her own words, he had J.B. ...