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State v. R.B.

May 23, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
R.B., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal the Court is asked whether certain statements were properly admitted at trial under the tender years exception to the hearsay rule, N.J.R.E. 803 (c) (27); whether the jury charge on the use of Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence was sufficient; and, whether the prosecutor committed prosecutorial misconduct in summation.

R.B. and K.B. were married and living in Jersey City. During the summer of 1998, R.B., K.B. and their two-year-old baby daughter were joined by C.R., K.B.'s six-year-old son from a prior relationship. From the beginning, C.R. was a difficult child, but over the following year the boy's behavior progressively deteriorated.

C.R. began torturing the family cat, set a rug on fire, and once defecated in the cat's litter box. C.R.'s behavior worsened and K.B. sought guidance from her mother, who suggested that K.B. ask C.R. if anyone had inappropriately touched him. At first C.R. denied that anyone had touched him inappropriately, but then implied that his natural father had done so. Upon further questioning, C.R. retracted his statement about his natural father and, instead, stated that R.B. inappropriately touched him. C.R. was then taken to the Sexual Assault Victim's Assistance Unit (SAVA) in Jersey City, where he disclosed detailed information about several instances of sexual abuse by R.B.. While C.R. was being interviewed, R.B. arrived at the SAVA unit and agreed to answer questions. At first R.B. denied the allegations, but subsequently admitted that he had "possibly" touched C.R.'s genitalia, but that he suffered from "blackouts" and could not recall if he had in fact done so.

On May 9, 2002, following a retrial after his first jury was unable to agree on a verdict, R.B. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C: 14-2a, second-degree sexual assault, N.J.S.A. 2C: 14-2b, second-degree endangering the welfare of a child, N.J.S.A. 2C: 24-4a, and the disorderly persons offense of child abuse, N.J.S.A. 9: 6-1 and 9: 6-3. The trial court merged the sexual assault charges, sentenced R.B. to eighteen years incarceration with a nine-year period of parole ineligibility on those charges, and sentenced him to seven years with a three-year period of parole ineligibility on the remaining charges, which were also merged. The court ordered the separate terms of incarceration to run consecutively, resulting in an aggregate twenty-five year term of imprisonment with a twelve-year period of parole ineligibility, and assessed corresponding penalties.

On appeal, R.B. attacked both his convictions and sentence. The Appellate Division affirmed R.B.'s convictions, but remanded for the imposition of concurrent terms.

We granted certification and affirm the judgment of the Appellate Division.

HELD: C.R.'s statements were properly admitted without reservation under the tender years exception to the hearsay rule; the jury charge, although somewhat different from the model charge, communicated clearly the purpose and limitations of Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence and was sufficient under the circumstances; and, the prosecutor's remarks in summation did not constitute prosecutorial misconduct.

1. A hearsay statement by a child under the age of twelve, relating to sexual misconduct against that child, may be admitted at trial under the tender years exception when there has been notice of intention to use the hearsay statement, a pre-trial judicial finding of trustworthiness, and either the opportunity to cross-examine the child at trial or corroborating proof of the act of sexual abuse. N.J.R.E. 803 (c) (27). First, the trial court properly found that the State provided appropriate notice to R.B. of its intention to use C.R.'s statements to his mother and to the police. Second, as a result of the proofs adduced in the Rule 104 hearing, the trial court found that the time, content and circumstances of the statements demonstrated a sufficient probability of trustworthiness to justify their admission.

Third, the final requirement is easily satisfied as C.R. testified at trial and was cross-examined on both his pre-trial and trial statements. We find that the requisite elements for admissibility of C.R.'s pre-trial statements under the tender years exception to the hearsay rule were present and that the trial court's ruling admitting C.R.'s pre-trial statements to his mother and to the police implicating R.B. as his sexual abuser should not be disturbed. (Pp. 7-13)

2. Testimony concerning CSAAS is not admissible as substantive proof of child abuse. Expert testimony concerning this syndrome, however, is permitted on a circumscribed basis to explain what may well be counterintuitive to a jury: that a child victim of sexual assault is often loath to press an accusation. Because R.B. did not object to the charge when given, we review the charge under the plain error standard and find that the charge, although somewhat different from the model charge, communicated clearly the purpose and limitations of CSAAS evidence and was sufficient under the circumstances. (Pp. 13-19)

3. In addition to rejecting R.B.'s "fresh complaint" objection, we reject R.B.'s complaint that the cumulative use of his six-year-old stepson's "fresh complaint" together with the expert testimony concerning CSAAS was improper. Although this case comes perilously close to the setting we condemned in State v. J.Q., 130 N.J. 554 (1993), R.B.'s claim that the expert CSAAS testimony simply served to bolster the testimony concerning C.R.'s "fresh complaint" cannot be sustained. Because the CSAAS expert's fleeting reference to syndrome-like behaviors did not causally link C.R.'s behavior with one or more of the elements the CSAAS expert would look for in determining the applicability of the Child Sexual Abuse Accommodation Syndrome, and because other, strong evidence of guilt was presented by the prosecution, the CSAAS expert's list of some behaviors that coincide with some of the behaviors exhibited by C.R. and separately testified to by C.R.'s mother is harmless error as it is not "clearly capable of producing an unjust result." Rule 2:10-2. That said, it is incumbent on all trial courts to insure that either CSAAS expert testimony or a CSAAS charge is provided for its carefully circumscribed and limited purpose and does not infringe on the jury's exclusive prerogative. (Pp. 19-26)

4. R.B. also claims that the prosecutor committed misconduct in three separate instances during summation. In one instance, the trial court sustained R.B.'s objection and immediately issued a curative instruction. In the second instance of alleged misconduct by the prosecutor, the trial court overruled R.B.'s objection. Although the argument was improper, we find that, in those circumstances, it was harmless error. While a prosecutor's summation is not without bounds, the prosecutor is "entitled to wide latitude in his summation." State v. Mayberry, 52 N.J. 413, 437 (1968) (citations omitted). Moreover, we do not find that the prosecutor's comments could have "led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973). The third complaint is directed at the prosecutor's comment that the police had no motive to lie, which was offered in response to defense counsel's suggestion that Detective Hadfield was complicit in manufacturing C.R.'s recorded statement. The trial court sustained the objection and instructed the jury to disregard the comments. Although we have not squarely ruled on this issue, we agree with our Appellate Division in holding that it is improper for a prosecutor to contend in summation that the police had no motive to lie. Moreover, the prosecutor in this case should not have stretched his advocacy to the use of sarcasm in defense of the credibility of Detective Hadfield. Yet, his comments did not constitute reversible error. (Pp. 26-32)

5. Trials, particularly criminal trials, are not tidy things. The proper and rational standard is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. We are satisfied that, on the whole, R.B.'s trial and conviction were fair. (P. 32)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICES LONG and WALLACE join,stating that, in his summation, the prosecutor pursued a line of argument to bolster C.R.'s testimony that was unsupported by the evidence and clearly impermissible, and that the improper remarks poisoned R.B.'s ability to receive a fair trial, particularly when combined with the trial court's inappropriate charge on the use of Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and ZAZZALI join in JUSTICE RIVERA-SOTO's opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICES LONG and WALLACE join.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 14, 2004

Following a retrial after his first jury was unable to agree on a verdict, defendant R.B. was convicted of various sexual abuse offenses involving his six-year-old stepson. On appeal to the Appellate Division, R.B. raised a number of challenges to both his convictions and sentence. The Appellate Division affirmed R.B.'s conviction but remanded for the imposition of a concurrent term on count three of the indictment rather than the consecutive term imposed by the trial court.

R.B. raises before us the same challenges to his convictions that he presented to the Appellate Division.

We hold that:

(a) the trial court properly admitted the six-year-old victim's statement to the police under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27);

(b) the victim's statement to his mother qualified for admission under the tender years exception to the hearsay rule and, therefore, the objection to that statement as not qualifying as a "fresh complaint" is irrelevant;

(c) the trial court's charge sufficiently informed the jury concerning the limited and proper use of the Child Sexual Abuse Accommodation Syndrome;

(d) the cumulative use of the six-year-old victim's "fresh complaint," together with expert testimony concerning the Child Sexual Abuse Accommodation Syndrome, was harmless error; and,

(e) the prosecutor's remarks in summation did not constitute prosecutorial misconduct.*fn1

As a result, we affirm the judgment of the Appellate Division affirming R.B.'s convictions.*fn2

I.

A. Factual Background

R.B. and K.B. were married and living in Jersey City. During the summer of 1998, R.B., K.B. and their two-year-old baby daughter were joined by C.R., K.B.'s six-year-old son from a prior relationship. From the beginning, C.R. was a difficult child, but over the following year the boy's behavior progressively deteriorated. C.R. began torturing the family cat, set a rug on fire, and once defecated in the cat's litter box.

In August 1999, R.B. and K.B. separated, although they remained on speaking terms and even discussed reconciliation. In the interim, C.R.'s behavior worsened. On September 21, 1999, after C.R. threw food and punched his then three-year-old sister, K.B. sought guidance from her mother and, at her mother's suggestion, asked C.R. if anyone had inappropriately touched him while he was living with his grandfather or uncle. C.R. initially denied any inappropriate touching, but then implied that his natural father, C.R., Sr., once touched him inappropriately. When K.B. continued to question C.R., he retracted his statement about his natural father and, instead, stated that R.B. inappropriately touched him.

K.B.'s mother contacted the police, and C.R. was taken to the Sexual Assault Victim's Assistance Unit (SAVA) in Jersey City. Sergeant Spirito and Detective Hadfield interviewed the child for approximately one hour and fifteen minutes, following which they took a fifteen minute taped statement. In that statement, C.R. said that R.B. forced C.R. to "put [C.R.'s] mouth on [R.B.'s] private part, and [R.B.'s] mouth on [C.R.'s] private part . . . ." C.R. also explained that R.B. had "peed" in C.R.'s mouth, which was understood as a reference to R.B. having ejaculated in C.R.'s mouth. In his taped statement, C.R. provided Sergeant Spirito and Detective Hadfield with detailed information about several instances of sexual abuse by R.B., including where and when those events occurred.

While Sergeant Spirito and Detective Hadfield were interviewing C.R., R.B. arrived at the SAVA Unit and agreed to answer questions. Immediately after concluding C.R.'s taped statement, Detective Hadfield and Lieutenant Domanski went to the interview room, where R.B. was being held, to question him. Detective Hadfield advised R.B. of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). R.B. signed a written waiver of those rights and spoke with the police. He initially denied C.R.'s allegations of abuse. Ultimately, R.B. stated that he had "possibly" touched C.R.'s genitalia, but then R.B. added that he suffered from blackouts and could not recall if he did.

B. The Charges, Trial and Appeal

On April 10, 2000, a Hudson County Grand Jury returned a four-count indictment charging R.B. with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and the disorderly persons offense of child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count four).

On January 29, 2002, before empanelling the jury, the trial court conducted a hearing pursuant to N.J.R.E. 104 to consider the admissibility of both C.R.'s statements to his mother and to the SAVA Unit under the tender years exception to the hearsay rule, as provided by N.J.R.E. 803(c)(27), and R.B.'s post-arrest statement to the police. After a full examination, the trial court ruled the three statements admissible. Trial commenced the next day and continued until February 8, 2002, when the court declared a mistrial as a result of a hung jury. At the second trial, which started on May 7, 2002, R.B.'s defense, other than his cross-examination of the prosecution's proofs, consisted of one character witness. On May 9, 2002, the jury returned guilty verdicts against R.B. on all four counts of the indictment.

When R.B. was sentenced on September 3, 2002, the trial court merged the conviction for second-degree sexual assault (count two) into the first-degree aggravated sexual assault conviction (count one), and the disorderly persons offense of child abuse conviction (count four) into the second-degree endangering the welfare of a child conviction (count three). On the merged sexual assault charges, R.B. was sentenced to eighteen years incarceration with a nine-year period of parole ineligibility; on the endangering the welfare of a minor merged charges, R.B. was sentenced to seven years incarceration with a three-year period of parole ineligibility. The trial court ordered the separate terms of incarceration to run consecutively, resulting in an aggregate twenty-five year term of imprisonment with a twelve-year period of parole ineligibility, and the assessment of an aggregate of $2,180 in penalties.

Before the Appellate Division, R.B. attacked both his convictions and sentence. The Appellate Division affirmed R.B.'s convictions, but remanded for the imposition of concurrent terms on the merged charges.

We granted certification. 178 N.J. 454 (2004). For the reasons that follow, we affirm the judgment of the Appellate Division.

II.

We begin our analysis of R.B.'s assignments of error by addressing first his evidentiary objections: that the trial court should not have admitted the statements of C.R., R.B.'s six-year-old stepson, to both his mother and the police under the tender years exception to the hearsay rule, and that the trial court should not have allowed C.R.'s mother, K.B., to testify concerning C.R.'s identification of R.B. as his sexual assailant because C.R.'s identification does not qualify as a "fresh complaint." As the record amply demonstrates, the admission of those statements was proper under the tender years exception to the hearsay rule, rendering irrelevant whether the statements also were admissible under the "fresh complaint" exception, which "permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice." State v. Balles, 47 N.J. 331, 338 (1966).

A hearsay statement by a child under the age of twelve, relating to sexual misconduct against that child, may be admitted at trial under the tender years exception when there has been notice of intention to use the hearsay statement, a pre-trial judicial finding of trustworthiness, and either the opportunity to cross-examine the child at trial or corroborating proof of the act of sexual abuse. N.J.R.E. 803(c)(27).*fn3

Applying these three requirements here, we note first that the trial court properly found that the State provided appropriate notice to the defendant of its intention to use C.R.'s statements to his mother and to the police.

Second, as a result of the proofs adduced in the Rule 104 hearing, the trial court found that the time, content and circumstances of the statements demonstrated a sufficient probability of trustworthiness to justify their admission. After listening to the child's tape recorded statement as well as the testimony of the child's mother and the officer who secured the tape recorded statement, the trial court stated:

Sergeant Spirito - - well, I'll make the following findings of fact in any event. Sergeant Spirito testified quite clearly and unequivocally, and I don't believe it's seriously contested by anyone that on the -- during the early morning hours of September the 22nd the child, the alleged victim in this matter, along with his mother, were brought to the SAVA offices of the Hudson County Prosecutor's Office, for the purpose of being interviewed regarding allegations of sexual abuse of the child.

She testified and I find this a fact that she had a pre-interview with the mother to obtain some basic information, family information, and the general nature of the allegation. There was no specific inquiry as to dates, times, places, etcetera, and the nature of the acts engaged in.

That topic was broached for the first time by [Sergeant] Spirito with the child, according to her testimony, during her pre-interview with the child, following a lengthy period of - - after attempting to put the child at ease for about 20 minutes of the hour or so that she spent with the child.

Although the time the statement was taken was late in the morning for a child, I'm satisfied and find as credible [Sergeant] Spirito's testimony that the child was awake, aware, and alert, at the time the statement was given.

As far as the content of the statement is concerned, it's abundantly clear from listening to the tape that the child at the time he gave the statement was immature. He is at the time of the giving of the statement a seven year old child, and he appears to be age appropriate, meaning there were - - there was a kind of a lilting tone to his responses, and it was almost as if he did not understand the nature of the violation that he allegedly was subjected to.

It's clear that there had been no detailed discussion regarding anatomical features. He did not refer to the defendant's conduct in terms of oral sex, nor did he refer by any anatomically correct names to the genitalia involved in the allegation.

Rather he said specifically that the defendant had forced him to put his mouth, the child's mouth, on the defendant's private parts, and that the defendant had placed his private - - his mouth on the child's private parts.

It's also, I think, quite telling that the child referred to what I think fairly is referred as ejaculate as pee, being unfamiliar with the anatomical reproductive functions of an adult male that would be something that a young male child would be familiar with, and perhaps the only thing he'd be familiar with is the fact that a penis is also used to void fluid.

Finding that K.B.'s questioning of the child, which originally elicited the damaging statement from the child, was not improper under the circumstances, the trial court concluded that "the statement satisfies the criteria set forth in the rule and it does have a high probability of trustworthiness based upon the factors . . . explained, and [the court was] satisfied the statement should be admissible under Rule 803(c)(27)."

We concur with the trial court's findings concerning the truthfulness of C.R.'s pre-trial recorded statement. We agree that the child's language and affect - - under both direct and cross-examination - - was age appropriate and bore no indicia of ...


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