On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication July 2, 1996.
Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by Humphreys, J.A.D.
The defendant appeals his conviction by a jury of sexual assault contrary to N.J.S.A. 2C:14-2(b) (count one); criminal sexual contact contrary to N.J.S.A. 2C:14-3(b) (count two); child abuse contrary to N.J.S.A. 9:6-1 and 9:6-3 (count three); and endangering the welfare of a child contrary to N.J.S.A. 2C:24-4(a) (count four). The defendant's natural son W.L., Jr., ("W.L."), age four, was the victim. Defendant was also found guilty of endangering the welfare of his ten year old step-son L.C. contrary to N.J.S.A. 2C:24-4(a) (count eight). The defendant was acquitted on counts five, six and seven which charged him with sexual assault, sexual contact and child abuse against L.C. The Judge merged counts two and three into count one. The defendant was sentenced on count one to ten years in prison and on counts four and eight to a concurrent term of five years. The defendant appeals his conviction and sentence.
We reverse. Improper statements by the prosecutor in his opening statement and summation coupled with prejudicial psychiatric evidence denied the defendant a fair trial and were clearly capable in this close case of producing an unjust result. See R. 2:10-2.
The defendant's wife ("T.L.") testified that in November 1990 she heard W.L. scream. She went to the bathroom and saw the defendant apparently masturbating W.L., then four years old. She asked the defendant what he was doing and he began to cry. Two months after the incident, the defendant left the marital home.
T.L. did not report the bathroom incident to the police or the Division of Youth and Family Services ("DYFS") or apparently anyone else. The matter first surfaced a year and half later when she testified about the incident at a hearing in a custody dispute with the defendant.
A year before the incident, the defendant's step-son, L.C., had reported to a school counselor that the defendant had been touching his private parts. L.C. and W.L. testified at trial that the defendant had sexually abused them. The State introduced evidence at the trial through a psychiatrist that W.L. at age seven had threatened suicide and been hospitalized for two weeks. The psychiatrist testified that W.L. had told her at the hospital that his father had "touched him." The psychiatrist also testified that in her opinion W.L. suffered from post traumatic stress disorder and that this was not inconsistent with a victim of child abuse.
Defendant testified at trial and denied any sexual abuse. As to the bathroom incident, he testified that he was washing his son's buttocks after his son had a bowel movement.
The defense presented other witnesses. A DYFS worker testified that she had interviewed L.C. in September 1989 and he denied any sexual abuse by the defendant. The DYFS worker recommended that the DYFS investigation be closed and it was. Another DYFS worker testified that she interviewed W.L. in May 1991 and he denied having been "fondled" by anyone including his father. However, she also testified that L.C. told her that the defendant had fondled him and W.L. A supervisor of juvenile visitation for Hudson County testified that he saw some thirty visitations between defendant and his son and had seen no problems.
A psychologist testified on behalf of the defendant that a post traumatic stress disorder may be the result of a parent pressuring a child to repeat a story that may not be true. The psychologist also testified that in her opinion W.L. was not suffering from a post traumatic stress disorder. She conceded on cross-examination that a diagnosis of post traumatic stress disorder caused by sexual abuse was "one of the possibilities."
The prosecutor's opening statement consisted almost entirely of a flagrant appeal for sympathy for the victim and an equally flagrant attack on the defendant's character and credibility. The prosecutor said:
Now, a lot of people you know they think about well pressures of life, of my life get so much to me, geez wouldn't it be nice to go back be a kid again, have those things. I didn't have any worries, I didn't have a job I had to be to, didn't have to pay bills, worry about this or that. That's one part of it.
When you think about it, when you're a kid, you also have something that an adult doesn't, you lack something an adult has which is freedom. The ability to protect yourself. When you're older if things get too much, if you want that private little moment you can do whatever it is you want to do. If you like to jog, go to a museum, go fishing, whatever it is you can do it, jump in a car, take a drive be by yourself. When you're a kid, you don't have that. You just can't say that's it, I've had enough, I want to be by myself, go off by myself, especially if you're a young child like the children in this case were, one of them still is.
When you're a child, when you think about it you have maybe three things that should be your own and that should be unique to a child which should never, ever be tampered with or damaged by anybody. You should be safe in your home. When you talk to a kid, don't go out talk to strangers, watch when you cross the street, don't talk to this guy in the playground or that guy on the corner. But when you're home, it's supposed to end, I'm home now let's just relax.
You know when you're a kid you should also have your own body, your own body should be yours, we call our private parts our private parts for a reason, because you know they're not exposed to everybody, we don't have to have like -- we have our face exposed, our hair, whatever, everybody can look at. Your private parts are obviously covered up. To a kid it's one of the few things I have, my privacy, some kids call it my private part, mine, they're mine.
You also have when you're a kid, you're supposed to have innocence, you know, you're suppose to be a kid, you're supposed to worry about whether or not I'm going to get that candy bar or whether or not I'm going to make the little league team, you're not supposed to worry about or know about sex. I mean it's just not right.
Now, those three things, the sanctity of the home, the sanctity of ones own body, the sanctity of that child like innocence, all of those things were shattered and taken away in this case on two boys, two boys. One of them by their father, the other by their stepfather, it's the same man, it's this man right here, this defendant. He took these things away from little [W.L.] who's now seven, who was then about four and a half, five years old and [L.C.] his stepson who's about 15 now, was about 10, 11, 12. He terrorized these children, terrorized their mother and destroyed the family, destroyed them.
About November of 1990 Miss -- you'll see her here, [T.L.] is cooking dinner in her home, she hears her little boy [W.L.] scream out. Now, she basically let it go the first time because he's in there and his father is giving him a bath, suppose to be a nice thing, right? She hears him scream out a second time. She runs in and what she saw there is the evidence in this case, part of it and also just an all too family horrible story.
Her husband, this man right here, the defendant was naked, he had his hands on his own penis and the little boy [W.L.] was seated upon the sink and his father was masturbating him, his father was basically I guess you would say playing with this little boy's penis.
And she said, you'll hear her say because it's unusual, look we're adults here, we can talk about these things, it's a little boy. And it was unusual that she noticed the child's penis was erect. She said my God why is my son's penis -- what are you doing, what are you doing? This guy over here put a towel around himself, sat down, began to cry. She took the child out.
Now, one of things she thought about at that time was the fact that about a year earlier her son and his stepson had told or found out by school people that when he would sleep at night again the defendant would come into his room when he was sleeping and put his hands into the boys pants and touch his penis and touch his anus and he'd tell him to stop and he wouldn't stop.
She thought about how he told that to her and how upset he was and how terrified she was of this man and you'll hear about it because he controlled everybody. How she believed him, she believed him when her own son told her these things and when he threatened to go down there and sue everybody at the school, she said oh, okay, okay and now here it comes back, she finds out that happened, because she saw it happened here with her other son.
So for about the next three months or so she said get out, that's it, out. He wouldn't leave and didn't have the decency to leave when he was asked after this terrible thing, they basically lived, barricaded her and her two boys petrified until he finally left.
Now, again as I said she was terrified of him, she didn't say a thing until about May of 1991 when she sought custody of the boy against him. At that point she told the Judge downstairs about what happened.
Now, when they went down there the defendant also spoke about what happened with [W.L.] and what he said, well, it's for you to decide. But what he said when you hear it is so perverse in it -- in that it's so ridiculous that to expect anybody to believe it is really offensive. He said that he was asked your son was screaming, your wife ran into the bathroom, saw this, what do you have to say about that? Well yeah he was screaming, this is him talking now. He would scream every time we went into the bathroom because see I was trying to get into this habit after he would go to the bathroom, I would put him up there on the sink and I would take soap and water, as he said I would wipe his little butt out ...