Before Judges Pressler, Wefing and Parrillo.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Retried by jury following a mistrial resulting from jury deadlock, defendant E.B. was convicted of two counts of first- degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second-degree impairing the morals of a child, N.J.S.A. 2C:24-4(a). The victim was his youngest of three daughters, seven years old when the alleged sexual abuse took place and nine years old when she testified. Two additional counts of the indictment alleging second-degree sexual assault and fourth-degree endangering involving another child, were severed. Defendant, protesting his innocence, refused to submit to evaluation by the Adult Diagnostic and Treatment Center. Accordingly, he was sentenced to state prison terms: consecutive terms of twenty years on each of the first-degree convictions, each with a ten-year parole ineligibility term, and a concurrent ten-year term subject to five years of parole ineligibility on the second-degree conviction. Appropriate statutory penalties were also imposed. Defendant appeals. We reverse and remand for a new trial.
As is not untypical is cases of this kind, the proofs against defendant consisted solely of the charges made against him by the victim. There was no real corroboration, and defendant, who testified on his own behalf, vehemently denied them. Ultimately, the issue was simply one of credibility as between father and daughter. The jury heard the child's version five times, four times on the State's case. At least some of her allegations were repeated by the testimony of the detective who conducted a videotape-recorded interview of the child when she first made the charges. The jury also viewed the videotape-recorded interview and heard, in addition, the child's testimony. The physician who examined the child several days after the charges were made and who found no physical corroboration thereof repeated the child's allegations as part of the medical history she took. Finally, the child's mother, called as a witness by defendant, obviously hostile to defendant but perhaps not technically so, testified to what the child had told her. The child's testimony was admitted after a finding that she was a competent witness understanding the difference between truth and falsehood. The physician's testimony was admitted pursuant to N.J.R.E. 803(c)(4) (statements made for purposes of medical diagnosis or treatment). The hearsay and prior consistent statement of the child were admitted pursuant to N.J.R.E. 803(c)(27) (statements by a child relating to a sexual offense). Against these multiple repetitions was only defendant's denial. It is particularly in this context that we have concluded that defendant's right to a fair trial was unduly prejudiced by the judge's exclusion of testimony tending to corroborate a motive for what defendant claimed to be an invention and fabrication of sexual abuse where none existed. We are also constrained to note at the outset that we are extremely loathe to subject the child to yet another trial. But we are persuaded that a wrongful conviction of the acts here alleged is at least as intolerable as the acts themselves. And for the reasons we hereafter set out, we do not have sufficient confidence in the fairness of this trial simply to affirm.
The background of the family dynamics is relatively undisputed. E.B. and K.B. were married in 1985. Their daughter Anne *fn1 was born in 1986, their daughter Beth in 1988, and their daughter Carol in December 1989. They separated in mid-1991. K.B. was then pregnant with their son and youngest child, Donald, who was born after the separation. E.B. and K.B. were ultimately divorced. Their relationship both before and after the divorce was apparently extremely bitter, acrimonious, and hostile. From the time of the separation, custody and parenting time had been in frequent controversy. For some period of time, defendant's parenting time had been suspended altogether and for some period of time it had been supervised. The record does not disclose the precise reasons therefor although it is at least inferable that K.B. was desirous of no or limited contact between E.B. and the children. In any event, the record does reveal that for some time, perhaps a year or so prior to Carol's making of these charges, parenting time had been resumed. Defendant had the children every other weekend. In the week following weekend visitation, he also had the children on Thursday afternoon and in the week following the other weekend, he had the children on Monday. At that time, defendant was living in a small two-room apartment. It appears that at various prior times following the separation, he had had no fixed home of his own but various makeshift arrangements.
The immediate events leading up the charges occurred in 1997. In January of that year, K.B. filed a post-judgment motion in the matrimonial action seeking, among other relief, the elimination of the weekday parenting time on the ground that it unreasonably interfered with the children's ability to participate in extra- curricular activities. That motion was granted, apparently on the papers, and later in the spring, in May 1997, defendant unsuccessfully sought reconsideration. In February 1997, the school the three girls attended offered a child-abuse program, known by the acronym CAP, to all grades, including Carol's first grade class. The essence of the program was to encourage children to tell a trusted adult about conduct of others that made them feel uncomfortable. Virtually immediately following this program, the family had contact with the Division of Youth and Family Services (DYFS), as well as a second DYFS contact in April 1997. The contact was with a DYFS worker, Heidi Zorde. The jury did not hear any testimony regarding Zorde's communication with the children or the action she took based thereon or the substance of the complaints made to DYFS since Zorde's testimony was excluded following the voir dire proffer.
This is the substance of the proffer. According to Zorde, she received a complaint from Anne, the oldest girl. Anne's complaint was that she had been made to feel uncomfortable by her father, E.B., who had tickled her. Zorde interviewed all three girls separately at school and Donald at home. She concluded that nothing other than horseplay had been involved and concluded that a charge of abuse was unsubstantiated. The April episode involved an event that took place at the home of defendant's girlfriend, who has two children of the same ages as two of his, and apparently a fair amount of defendant's parenting time was spent at her home, including weekend overnights. There was apparently a game played in the backyard with bamboo sticks, and Anne had been struck on the hand by a bamboo stick thrown by defendant. Again Zorde, after another interview with the girls, concluded that that complaint did not constitute abuse, and again found it to be unsubstantiated. The significance of the proffer, as we see it, lay in Zorde's testimony respecting the girls' attitude towards their father. According to Zorde, each of the girls, including Carol, told her that they did not want to see their father and that they knew that if charges of abuse had been sustained they would not have to see him again. Zorde also testified that Anne expressed her disappointment at DYFS's inability to "help her." Although Carol was thus interviewed by Zorde twice, once in February and once in April, she made no mention of her father's alleged abuse of her, which she later claimed to have been ongoing for some months at this time. We also note that by the time of this proffer, Carol had herself clearly testified that she did not like seeing her father. Aside from the abuse claims, she said the visits were boring; he disciplined the children by spanking; he didn't let them watch television; and he made them do their homework. Finally, we also point out that Carol, at least in her videotaped interview, made clear her awareness of the long-term hostility between her parents.
We come now to the charges and the weekend of July 5, 1997. Defendant picked up the children for visitation on Saturday morning. He was initially to have had the children for a week, but had told K.B. on the previous Thursday that he would be unable to do so and would return them Monday morning. K.B., so she testified, was annoyed and angry at this change of plan since she had to rearrange for child care for that week. According to her testimony, following their return to her on Monday morning, Carol was visibly upset and finally, on Wednesday evening, July 9, told her what was troubling her, namely the specific actions of her father that made her feel uncomfortable. K.B. reported the conversation to the prosecutor's office, and the next day, she, the four children, and her boyfriend whom she later married saw Detective Roy Aycock. His videotaped interview with Carol took place that day.
According to Carol, and as she also testified at trial, her father's abuse of her had been going on, from time to time, for about a year. She described this abuse as his "licking her private" or "licking her vagina," rubbing his private against my private," and, on one occasion, requiring her to "lick his private." These episodes, of which she was able to recall several specific ones at trial, took place at night, at various locations in the apartment. She recalled his having carried her to his bed in his bedroom or to the bathroom. She recalled that he took her to the bathroom where, she said, he held her up on the towel rack. And she recalled, on that last weekend before her revelation, that he had come into the bedroom she shared with her three siblings, lying down next to her on the bed she slept in with her two sisters and abusing her in the described fashion while the two older girls were sleeping, as was her brother, who slept on a cot next to the girls' bed.
Following the interview, Carol was examined by a pediatrician, specializing in child abuse cases. Although she found some redness in Carol's hymenal area, she could not attribute that finding to the abuse Carol alleged although she concluded that the redness was not inconsistent with such abuse. The pediatrician also testified that while she "was not convinced," she referred Carol for counseling since therapy was indicated whether or not the abuse had actually taken place.
As we have pointed out defendant testified, absolutely denying the charges and attributing them to the maliciously motivated actions of his former wife. The jury evidently believed the child and found him guilty as charged.
In challenging the judgment of conviction, defendant raises the following issues:
I. DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO COMPULSORY PROCESS, TO CONFRONT WITNESSES AND TO A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S REFUSAL TO PERMIT DEFENDANT TO OFFER EVIDENCE CONCERNING THE FAMILY'S HISTORY WITH THE DIVISION OF YOUTH AND FAMILY SERVICES AND TO ...