Approved for Publication September 25, 1995.
The opinion of the court was delivered by: Bernhard
This motion to dismiss defendant's indictment arises out of an allegedly unbalanced presentation by the Assistant Prosecutor to the grand jury in a sexual molestation case involving a child victim. In light of the recent decision set forth by the Appellate Division in State v. Hogan, 281 N.J. Super. 285, 657 A.2d 462 (App. Div. 1995), this court holds that when a child victim first denies that a defendant molested him, but later alleges that the abuse did in fact take place, the initial denials may not be withheld from the grand jury. Both the exculpatory as well as the incriminating statements must be presented.
By way of factual background, defendant was enrolled as a volunteer in the Big Brothers/Big Sisters Association at some point prior to 1991. In June of that year, he was "matched" with the victim, T.S.. Defendant and T.S. started seeing each other under the auspices of this organization, and the two got along quite well. T.S., his mother, and defendant were all pleased with the match. Defendant and T.S. engaged in many activities together, namely, swimming, fishing, camping, and occasionally, T.S. would sleep over at defendant's home.
During the course of the relationship between defendant and T.S., at various times defendant would disappear and not contact T.S. for long periods of time, which upset both T.S. and his mother. The relationship became rocky, and eventually, in August, 1993, the "match" was terminated by the organization in conjunction with complaints by T.S.'s mother.
On March 20, 1994, T.S.'s father, who had never lived with T.S., and his mother until about the same time the "match" with defendant was terminated, asked T.S. whether defendant had molested him. T.S. admitted that he had been anally penetrated by defendant on a number of occasions while he was sleeping over defendant's house. After this information was disclosed to T.S.'s mother, she contacted the Division of Youth and Family Services, which in turn contacted the Hunterdon County Prosecutor's Office. An investigation followed, criminal complaints for aggravated sexual assault, sexual assault, and endangering the welfare of a child were filed, and indictments returned. This motion followed.
It is well-settled that a court may not exercise its discretion to dismiss an indictment except on the clearest and plainest ground, and that the indictment and must stand unless it is "palpably defective." State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952); State v. Ferrante, 111 N.J. Super. 299, 304, 268 A.2d 301 (App. Div. 1970). The validity of an indictment is determined by giving every reasonable inference to the State, and the evidence that is presented need not be sufficient to convict the defendant, but must only present a prima facie case. State v. New Jersey Trade Waste Ass'n., 96 N.J. 8, 27, 472 A.2d 1050 (1984).
Defendant argues that the Assistant Prosecutor's presentation to the grand jury failed to present evidence in her possession which was exculpatory in nature. He argues that the Assistant Prosecutor presented only bits and pieces of the investigation of defendant and that it was unfair, unbalanced and misleading.
It is clear that a prosecutor has the obligation to present clearly exculpatory evidence to a grand jury. State v. Smith, 269 N.J. Super. 86, 97, 634 A.2d 576 (App. Div. 1993). Smith requires that any information in the State's possession that "clearly negates a defendant's guilt" be turned over to the grand jury. Id. at 92. The court states,
The courts . . . agree that the prosecutor need not introduce evidence which might suggest that it is less likely that the defendant committed the crime, but would not directly negate his guilt. The prosecutor's disclosure obligation is limited to evidence which, if believed, would establish in itself that he had not committed the crime -- such as a confession by another to the crime or evidence that "the accused was nowhere near the scene of the crime when it occurred." [ Id. at 97 (citing 2 LaFave & Israel, Criminal Procedure § 15.4(d) (1991)).]
Reports of the victim's statements to Big Brothers/Big Sisters' case worker Mrs. Kathleen Mary McDonald that defendant had not molested him were not brought in front of the grand jury. Statements made by the victim to his mother in which he failed to allege sexual situations were likewise not presented. Defendant alleges that these statements, if believed, directly negated guilt and should have been presented to the grand jury. This court agrees that certain statements should have been presented to the grand jury and, failing their presentation, the indictment must be dismissed.
Previously, Mrs. McDonald had been called to the Prosecutor's Office to give a statement to Detective Jensen. In Detective Jensen's report, she wrote, "Mrs. McDonald further indicates that at some time in March, 1993 she had spoken with [T.S.] and asked him whether he had ever been touched by Tony to which [T.S.] had said he was not. When asked why she did this, Mrs. McDonald stated that she made this a regular habit when ...