On certification to the Superior Court, Appellate Division, whose opinion is reported at 310 N.J. Super. 140 (1998).
The opinion of the court was delivered by: Coleman, J.
This appeal involves a conviction for aggravated sexual assault upon an eight-year-old female. The critical issues raised are whether permitting the child to testify before the jury on closed circuit television violated defendant's constitutional right to confrontation, and whether a videotaped statement made by the child to the police should have been excluded from the trial as unreliable evidence. In a published opinion, the Appellate Division ruled in favor of defendant on both issues. 310 N.J. Super. 140, 145-46 (1998). We granted the State's petition for certification, 155 N.J. 587 (1998), and now reverse on both issues.
T.I., the victim of the alleged aggravated sexual assault, was eight years old at the time of the offense on December 30, 1994. The offense occurred while T.I. was spending the night with her aunt, A.T., who lived with defendant at the same address. T.I. testified on closed circuit television because the trial court found that she was too frightened to testify before defendant or in an open courtroom. T.I. testified that the incident occurred while she was sleeping on a sofa in the living room at her aunt's apartment. She stated that while she was sleeping on her stomach, a person pulled down her pajama bottoms and digitally penetrated her from the back and front. Although T.I. could not see the perpetrator's face at the time, she saw that it was defendant as he was going to the bathroom. She also recognized the individual's voice as that of defendant when he said to her that he was sorry and that he thought she liked it. After the incident, T.I. saw the perpetrator go into her aunt's bedroom. T.I. was able to see by light from a television in her aunt's bedroom.
T.I. spent the next day at her aunt's apartment without telling her aunt what had happened the night before. The aunt dropped T.I. off at T.I.'s mother's house the evening of December 31, 1994. After arriving at home, T.I. told her mother what had happened. Detective Edward R. Koenig interviewed T.I. on January 3, 1995, and videotaped the interview. A copy of the video tape was admitted as evidence even though it was duplicative of T.I.'s court testimony. T.I. used an anatomically-correct doll during the videotaped interview to demonstrate what defendant had done to her.
A.I., the child's mother, testified that there was a time when she and T.I. lived with A.T. During that period, defendant would visit the home almost daily. When T.I. was taken back to her home on December 31, 1994, T.I. told her mother what defendant had done to her. Although A.I. was not asked to repeat what T.I. said, A.I. stated that based on what T.I. told her, A.I. contacted the county prosecutor on January 3, 1995. The trial court immediately explained to the jury why that fresh-complaint evidence was admitted.
Defendant testified on his own behalf and denied the allegations. He stated that on the night in question he returned home intoxicated. He testified that after going to the bathroom, he went to bed without disturbing T.I.
The jury convicted defendant of first-degree aggravated sexual assault. He was sentenced to a custodial term of seventeen years without a parole disqualifier. On appeal, the Appellate Division reversed his conviction. Smith, supra, 310 N.J. Super. at 145-47. The panel reasoned that T.I.'s fear of testifying in the open courtroom was not a sufficient basis to allow the use of the closed circuit television under the principles enunciated in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), and adopted by this Court in State v. Crandall, 120 N.J. 649 (1990). Smith, supra, 310 N.J. Super. at 145. The panel read Craig and Crandall as holding "that testimony by closed circuit television may only be employed to protect the infant from a face-to-face confrontation with the defendant." Id. at 144-45. Fear of the courtroom alone was deemed insufficient. Id. at 145.
The panel also held that it was reversible error to admit into evidence that portion of the videotaped interview of T.I. that followed a one-minute break. Id. at 146. According to the panel, the "re-interview" was "replete with suggestive material and more akin to cross-examination than the neutral examination [N.J.R.E. 803(c)(27)] requires." Ibid.
The State argues that under the facts of this case, the provisions of N.J.S.A. 2A:84A-32.4, and the controlling decisional law, permitting T.I. to testify on closed circuit television did not deprive defendant of his constitutional right of confrontation. Defendant maintains that the Appellate Division properly limited the availability of closed circuit television testimony to those instances in which specific findings have been made that the witness will be traumatized by the defendant's presence. Defendant insists that the evidence at trial was ambiguous regarding the determinative cause of T.I.'s fear and that the trial court improperly refused to permit him to waive his right to be present so as to enable T.I. to testify live before the jury.
Our analysis must begin with an examination of the facts found by the trial court that informed its decision to allow T.I. to testify on closed circuit television. At the time of trial, T.I. was nine years old. The trial court conducted a pretrial hearing to determine whether T.I. should be permitted to testify on closed circuit television pursuant to N.J.S.A. 2A:84A-32.4. That hearing was conducted on June 4, 1996.
T.I. testified at the hearing that she feared talking about the incident and stated that she would not be able to talk about it if defendant was present. T.I. also indicated that she would not be able to testify in court in front of a jury even if defendant was not present.
Next to testify was Jacquelyn Bonanno, a counselor for the Resolve Community Counseling Center, who had been working with T.I. through T.I.'s school. Ms. Bonanno testified that in her opinion, T.I. would be unable to testify either in front of defendant or in front of a jury. She stated that T.I. continually indicated that she was frightened and did not want to go to court. When Ms. Bonanno was asked by the trial Judge whether she thought that testifying would be a traumatic event for T.I., Ms. Bonanno said yes.
A.I., T.I.'s mother, testified that a week prior to the hearing T.I. and the assistant prosecutor had come to court to try to acquaint T.I. with the courtroom. A.I. indicated that T.I. refused to sit in the witness chair and refused to talk. A.I. also testified that T.I. was having problems going to school and interacting with other children.
At the close of the evidentiary hearing, the trial court made the following factual findings and legal Conclusions:
"My view of that child is, A, sure, she is frightened but it's beyond the fear I've seen in other children who have testified in similar cases before me in similar courtrooms as this. I have had other cases involving children of seven, eight, nine, ten and they're all afraid to come into court. But that is overcome in the past at least by them coming in a day or week before and sitting in the [witness] seat."
"This child is a very frightened little girl. That fear comes through quite clearly. It comes through also if [T.I.] doesn't want to go on about a question, [T.I.] puts her head down and doesn't say anything and ...