On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-7-377.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we review two evidentiary rulings which defendant contends deprived her of a fair trial. One ruling barred defendant from access to the educational records of the young man defendant was accused of sexually assaulting. The other ruling barred admission of expert testimony regarding her psychological condition which defendant sought to introduce in support of her defense of duress. We affirm the exclusion of the expert testimony. We find, however, that the trial judge mistakenly exercised his discretion when he failed to conduct an in camera inspection of the victim's school records and release of those records to defense counsel.
Following a jury trial, defendant, Sheryl Van Dyke, was convicted of a single count of second degree sexual assault contrary to N.J.S.A. 2C:14-2c(4) and two counts of third degree endangering the welfare of a child contrary to N.J.S.A. 2C:24-4a. The primary victim, J.M., was thirteen at the time of the offense. At sentencing, the judge merged the endangering conviction involving J.M. with the sexual assault conviction and imposed a five-year term of imprisonment. On the second endangering conviction, which involved K.M., the judge imposed a concurrent three-year prison term. The appropriate penalties and assessments were imposed. In addition, defendant must register pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19, submit to DNA testing, and she is subject to community supervision for life.
In the summer of 1999, defendant was thirty-four years old and married for fifteen years. Defendant and her husband had two children, an eleven year old son and an eight year old daughter, who played frequently with thirteen year old J.M. and his twelve year old sister K.M. They were neighbors of J.M.'s family. The children spent their time swimming, watching television and playing on the computer at defendant's residence.
Defendant conceded that a sexual relationship developed between J.M. and her in September 1999. She testified that J.M. coerced her by threatening to punch her eight year old daughter, who wore a cardiac pacemaker at the time. Defendant testified that she feared that a punch would disrupt the pacemaker and trigger cardiac arrest.
J.M. testified that defendant initiated the relationship. He conceded that he physically assaulted defendant in the later stages of the relationship but contended it was a reaction to her sexually assaultive behavior. We relate both versions of the relationship.
According to J.M., about a week after his thirteenth birthday, he was at defendant's residence in the playroom watching the movie"Face Off" with defendant. Defendant came over to the sofa where J.M. was lying, laid down on top of him and started to kiss him. J.M. testified he was shocked and pushed her off him when someone came inside. J.M. went upstairs and sat at the kitchen table, and defendant also went upstairs and stared at him across the table. Nothing else happened that day.
A few weeks later, during the evening of September 16, 1999, J.M. was at defendant's residence. Defendant's husband and children were asleep upstairs. In the playroom, defendant asked J.M. if he wanted a"blow job" and proceeded to give him one. J.M. stated this was his first sexual experience. He denied cursing at defendant or making any threats toward her at that time.
At the end of September, defendant asked J.M. to help her fix the headboard on her bed. Defendant's two children and J.M.'s siblings were downstairs in the playroom. According to J.M., defendant pushed him onto the bed, took off her pants and had intercourse with him. Defendant made J.M. wear one of her husband's condoms. J.M. denied punching or using force with defendant at that time.
J.M. explained that defendant kept track of when they had sex by using color-coded dots on a calendar, with each color representing a different sexual act. J.M. claimed that he had sex with defendant four to five times a week after school. Defendant often invited his siblings to the house for sleepovers. During these sleepovers, defendant and J.M. would have sex while the other children were asleep.
J.M. testified that defendant joked about J.M. killing her husband and giving him half the insurance money. Defendant would also say"I love you," and said she wanted to marry J.M. when her husband died and J.M. turned eighteen. J.M. described underwear that defendant wore, and described defendant's Caesarean section scar. He also viewed pornographic movies with defendant.
J.M. testified that after his grandmother passed away in February 2000, he began to have feelings of anger because of what defendant was doing to him. At this point, J.M. began to fight defendant when she tried to have sex with him and was physically aggressive during other times. In one incident, defendant and J.M. argued over a bag of bagel chips, and he kicked defendant and pushed her onto the floor. J.M. took the channel changer and smashed it in defendant's face with such force that the batteries flew out; defendant sustained a black eye and a bloody nose. J.M. also admitted choking defendant during this altercation. J.M. testified that this sort of physical assault happened approximately once a month, and verbal confrontations occurred about twice a week.
J.M. used defendant's computer frequently, and had access to defendant's America Online account. He had his own screen names on defendant's account, such as"popkornpimp69" and"XXXpimp69XXX." At one point, America Online closed the account because of J.M.'s behavior on the internet. J.M. claimed defendant showed him how to access porn sites, and would use the porn sites to arouse him so they could have sex.
J.M. testified that defendant threatened to overdose on her medication, cut her wrists with a razorblade, or take her two children and move in with someone she met on the internet if he told anyone about their relationship. J.M. claims that he cut off the sexual relationship on April 10, 2000 after the bagel chips incident, because defendant expressed an interest in having a lesbian relationship with his younger sister K.M., and began to do the same things with K.M., such as talking on the phone, that defendant had done to establish a relationship with him. On May 18, 2000, J.M. told his sister K.M. and another sister that he had been having an affair with defendant and that defendant might try to have sex with K.M. He then informed his parents who took him to the police.
Defendant testified that her daughter had a pacemaker and that J.M. threatened to punch her daughter in the chest if defendant did not have sex with him. Defendant claimed that J.M. and his sisters began coming over, uninvited, to play with her children and use her computer in May 1999. She claimed J.M. was pleasant at that time, but constantly complained about his home life. In July 1999, J.M. had a bad day, and she comforted him by giving him a hug and kiss on the cheek. After this incident, J.M.'s behavior began to change; he sat close to her, put his arm around her or his head on her lap. Defendant tried to discourage this behavior by telling him to move over, but he persisted.
In August 1999, defendant claimed J.M. began to show signs of aggression towards her, such as hitting her, kicking her or spitting on her. Defendant tried to send him home after this behavior, but he would not leave. J.M. fought with defendant's son, positioned him in a choke hold, and said,"I could kill him in a second." J.M. remembered"clowning around" with defendant's son, with his hands around his neck, but denied threatening to kill him. J.M. boasted about his violent behavior at home, bragged of holding a knife to his sister's throat, and setting fire to a field and being arrested. J.M. admitted that he told defendant about these things. According to defendant, J.M. also questioned defendant repeatedly about her sex life, and J.M. hit or threatened her when she would not answer.
On September 16, 1999, defendant recalled watching TV in the playroom with J.M. Her husband was not home. Defendant claimed J.M. sat close to her on the couch and requested that she give him a blow job. When she refused, he threatened to kill defendant's daughter by punching ...