On appeal from Superior Court of New Jersey, Law Division, Middlesex County and on remand from the Supreme Court, Indictment No. 04-05-0726.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2006
Remanded Resubmitted March 23, 2007
Before Judges Weissbard, Payne and Graves.
Defendant, Franklin Jack Burr, II, appeals from his conviction for second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. After merging the endangering into the sexual assault, the trial judge imposed a six-year term of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, as well as Megan's Law, including community supervision for life. In addition, the judge imposed a concurrent three-year term for violation of probation involving an earlier offense. We reverse.
A.A.*fn1 was born in December 1994. Between October and November 2002, A.A.'s parents enrolled her and her older brother, B.A., in piano lessons at a private location. Defendant was their piano instructor, and the children took weekly lessons on an individual basis with him.
In approximately March 2003, defendant left that facility and began giving piano lessons at a local community center (the Center). Because defendant was a good teacher and A.A. and B.A. were fond of him, the children continued to take lessons with him at the Center. Defendant's wife also taught piano at the Center and gave lessons to both A.A. and B.A.*fn2 At some point, defendant also began tutoring B.A. in math and science at the Center. A.A. was usually present during B.A.'s math tutoring, and defendant would sometimes involve her in the lessons. A.A.'s mother, R.T., respected and trusted defendant and had no concerns about him teaching A.A. prior to January 2004.
On January 7, 2004, R.T. arrived at the Center to pick up her children between 6:15 and 6:30 p.m., which was a little earlier than usual because B.A. had a school event that evening. R.T. opened the door to the first classroom and saw A.A. and defendant in the corner of the room by the teacher's desk. She described them as being in a "compromised position," with A.A. standing with her knees bent and defendant behind her.*fn3 R.T. immediately told A.A. to gather her things and called for B.A. who was down the hall in a piano lesson with defendant's wife.
When R.T. and A.A. arrived at their car, R.T. asked A.A. what she was doing in the corner with defendant. According to R.T., A.A. began to cry and said that she did not want to go back there anymore and that defendant makes her sit on his lap, "puts his hand in [her] pants," touches her "front," and "squeez[es] [her] butt." A.A. indicated that the inappropriate touching had been occurring since they were at the first location and she did not tell her parents sooner because she didn't think they would believe her.
R.T. spoke with A.A.'s father when he returned home from work that night, and they ultimately decided to pursue the matter to assure that defendant could get help and would not harm any other children. They reported the matter to the local Police Department one week after the incident, and the police transported R.T. and A.A. to the Middlesex County Prosecutor's Office, where they met with Investigator Lisa Collins. Collins spoke with R.T. about the matter outside of A.A.'s presence and then conducted a videotaped interview of A.A.
During the interview, A.A. indicated that defendant would touch her at her waist, her buttocks, and her "private part" after her piano lesson when he closed the classroom door and taught her math. He would also "squeeze" her "butt" while she was walking to the classroom and would make her sit on his lap when she was in the classroom. A.A. explained that the touching occurred over her clothing and, when she wore a skirt, over her underwear. She described defendant's touching as placing his hand over her private part and keeping his hand still. A.A. indicated that defendant never asked her to touch any parts of his body and never showed her any parts of his body.
At trial, A.A. testified that defendant would often slap or squeeze her buttocks when she was walking through the piano area at the first location. She indicated that other people were around when this would happen but that "nobody was looking." According to A.A., the touching increased when the lessons switched location to the Center. There, A.A. said that she would get her piano lesson first from defendant's wife, and would then enter a classroom with defendant where he would teach her math and language. While she was walking down the hallway to the classroom, defendant would slap or squeeze her buttocks, and she would run to the classroom. A.A. explained that when she was sitting at the desk in the classroom, defendant would put a chair on the other side of the desk "and then he would touch the outside of my private part" by reaching underneath the desk. She specified that the touching always occurred over her clothing and that she felt so uncomfortable when she wore a skirt that she never wore a skirt to class again. A.A. also indicated that defendant would often pull her onto his lap, but that when he did so, he would not touch her anywhere other than putting his hand around her waist. A.A. denied ever trying to climb onto defendant's lap when he was giving piano lessons to other students.
A.A. testified that the inappropriate touching occurred "every time I went to class" but occurred only after, not during, the piano lesson. On the day that her mother entered the classroom, A.A. said that she was sitting on defendant's lap and saw her mother look through the blinds. She then got up and went with her mother to the car. According to A.A., her mother asked her what she was doing on defendant's lap, and she first responded "nothing." However, after her mother repeatedly asked her what happened, she cried and began to tell the story.
Pursuant to a pre-trial ruling, the State also presented A.A.'s statements to her mother on January 7, 2004, as well as her subsequent videotaped interview by the Prosecutor's Office.
Defendant's wife testified on behalf of the defense. She explained that A.A. "liked to be with [defendant] very much" and was always smiling in his presence. A.A. would sometimes disturb defendant's conversations with other people in order to get his attention and always appeared comfortable around him. Another witness, P.M., whose eight-year-old son took piano lessons from defendant, testified that A.A. would try to hang on to defendant and climb onto his lap during his son's lessons; however, defendant would gently put her aside. Likewise, P.M.'s wife recalled that A.A. would be disruptive during her son's lessons and would try to climb onto defendant's lap and show him the work that she had completed. She also noted that there were always a lot of people in the hallway at the Center and that the classroom door was open.
The owner of a daycare facility located in the Center also testified for the defense. She explained that the door to defendant's piano classroom was usually open because the daycare children would have to run through his classroom to get to her main room. She also stated that her daughter, D.M., took lessons from defendant and would often sit on his lap because she could not reach the keyboard. D.M. confirmed that the reason she sat on defendant's lap during her piano lesson was that the "keyboard was too high and . . . the chairs were too low and I couldn't reach the keyboard."
On appeal, defendant presents the following arguments for our consideration:
POINT I: A.A.'S TESTIMONY WAS MANIPULATED AND COERCED BY HER MOTHER AND THEREFORE WAS TAINTED TO SUCH AN EXTENT THAT ALL OF A.A.'S TESTIMONY MUST BE DISCOUNTED AS AGAINST THE WEIGHT OF THE EVIDENCE, AND THEREFORE, THE DEFENDANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL OR NEW TRIAL
A. The Testimony Of [R.T.] Was False, Belied, And Her Dishonesty Tainted And Corrupted The Testimony Of A.A. And Therefore, The Entire Trial Was Polluted
B. [R.T.]'s Attempt To Bolster A.A.'s Credibility Backfired And Further Proved That A.A.'s Story Could Not Be True
C. The Testimony Of A.A. Cannot Support A Conviction, And Only Confirms That Her Testimony Was Not The Product Of Her Observations, But That Of Her Mother's Coercive And Undue Influence
1. A.A.'s allegations of sexual assault against Mr. Burr at [a private location] are false
2. A.A.'s allegations against Mr. Burr regarding sexual assault at [the Center] are false
D. The Nature Of The Allegations Is Inconsistent To Sexual Activity
POINT II: THE TRIAL COURT IMPERMISSIBLY ALLOWED THE JURY TO VIEW THE VIDEOTAPE OF A.A. AT TRIAL AND DURING THEIR DELIBERATIONS
A. The Tender Years Exception To The Hearsay Rule Is Unconstitutional On Its Face, For Allowing Testimony Not Subject To Cross-Examination
B. Crawford Does Not Carve Out An Exception Where The Witness Testifies At Trial
C. Notwithstanding Crawford The Trial Court Nevertheless Abused Its Discretion For Admitting The Video Tape Under Well Settled New Jersey Law
D. The Trial Court Abused Its Discretion By Allowing The Tape Into Evidence
E. This Court Abused Its Discretion By Showing The Videotape To The Jury During Deliberations
POINT III: THE COMMENTS MADE BY THE PROSECUTOR DURING SUMMATIONS WERE IMPROPER AND PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL
A. The Prosecutor Committed Plain Error By Asking The Jury To Believe The Testimony Of A.A. Based On The Testimony Of The State's Other Witnesses
B. The Prosecutor Made Numerous Prejudicial Comments To The Jury For The Sole Purpose Of Inflaming The Jury And Depriving The Defendant Of A Fair Trial
POINT IV: THE VERDICT MUST BE SET ASIDE BECAUSE THE DEFENDANT WAS NOT ALLOWED TO INTRODUCE EVIDENCE OF HIS MEDICAL DISABILITY THAT WOULD HAVE EXPLAINED HIS BEHAVIOR
A. Evidence Of Mental Disease Or Defect Is Not Limited To Cases That Present A Diminished Capacity Defense
B. The Asperger's Evidence Was Relevant To Show That Mr. Burr Would Not Know That A Child Sitting On A Man's Lap Is Inappropriate
C. The Evidence Was Relevant To Show That Mr. Burr Did Not Engage In A Pattern Of Manipulation And Deceit
D. The Evidence Was Relevant To Explain Mr. Burr's Odd Appearance And Behavior
POINT V: DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE AND AS A RESULT THE DEFENDANT DID NOT RECEIVE A FAIR TRIAL AND HENCE IS ENTITLED TO A NEW TRIAL
A. Trial Counsel Was Ineffective By Not Pleading The Affirmative Defense Of Diminished Capacity Pursuant To N.J.S.A. 2C:4-2
B. Trial Counsel Was Ineffective By Refusing Mr. Burr's Request To Show The Jury The Desk In Which A.A. Was Sitting At The Time Of The Alleged Touching To Show That Her Story Was A Lie
C. Trial Counsel Was Ineffective Because No Objections Were Made To The Improper And Inflammatory Summation By The Prosecutor
POINT VI: THE DEFENDANT IS ENTITLED TO RE-SENTENCING
A. The Defendant Is Entitled To Re-Sentencing And Immediate Release From Imprisonment Because No Judgment Of Conviction Has Been Entered Against The Defendant
B. The Imposition Of Sentence Of Megan's Law Community Supervision Was Imposed While The Defendant Was Not Present In Court, And Hence, That Sentence Was Illegal
We may dispose of several issues summarily. Because of our disposition resulting from Point IV, we have no need to address defendant's sentencing argument or his ineffective assistance of counsel claim. In any event, the latter is best left to post-conviction relief (PCR) proceedings in the first instance. State v. Preciose, 129 N.J. 451 (1992). We reject defendant's argument that the verdict was against the weight of the evidence as without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The State's proofs, outlined above, met the State v. Reyes, 50 N.J. 454, 458 (1967), standard. We reject defendant's invitation to conduct our own independent evaluation of the evidence, including the credibility of the victim and her mother. That is simply not our function. In any event, we note that defendant never moved for a new trial, arguably precluding appellate review. R. 2:10-1; State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993). Finally, we also reject defendant's attacks on the ...