On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FJ-03-2345-04-D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
A.E.L. appeals from a trial court adjudication of delinquency for offenses committed when he was sixteen, that would constitute sexual assault if committed by an adult. As a result of this adjudication, A.E.L. was sentenced to two years probation, plus counseling, and was required to register under Megan's Law, N.J.S.A. 2C:7-2. We reverse and remand for a new trial.
A.E.L. occasionally babysat for a three-year-old boy, J.F. About a year after the last such occasion, the child's mother reported to the police that A.E.L. may have molested J.F. Her complaint was based on an incident in which the child pulled down his pants and started touching his penis. When his mother asked if he needed to go to the bathroom, he told her "[A.E.L.] does that." A few days after the complaint, the police conducted a videotaped interview of the child, in which he told the interviewer that while A.E.L. was baby-sitting for him, while they were both sitting on the couch, A.E.L. had taken out his penis and "wiggl[ed] it around" until he went "pee-pee." He also said that A.E.L. had encouraged J.F. to expose himself. However, the child denied that A.E.L had touched the child's penis or that A.E.L. had asked the child to touch him.
The police subsequently asked A.E.L.'s mother to bring him to the police station. The events that transpired at the police station were later the subject of a Miranda*fn1 hearing at which a police witness testified that both A.E.L. and his mother voluntarily agreed to waive the right to counsel and agreed that A.E.L. would speak to the police without his mother present.
A.E.L.'s mother testified that the police encouraged her not to be present and discouraged her several times from entering the interview room when she tried to do so. The judge found the police witness credible and did not believe the mother's testimony. A.E.L. confessed to touching the child's penis, having the child briefly touch A.E.L.'s penis, and masturbating to orgasm in front of the child. As a result, A.E.L. was charged with delinquency.
The juvenile delinquency complaint charged A.E.L. with two counts of sexual assault: (a) "by asking and allowing [the child victim] to touch the defendant's penis while baby-sitting in the victim's home" in violation of N.J.S.A. 2C:14-2b, and (b) by "specifically touching [the child's] penis while baby-sitting in the victim's home" in violation of N.J.S.A. 2C:14-2b. The complaint did not charge the juvenile with masturbating in the presence of the victim.
The defense filed a motion to suppress the confession, which the court denied after a testimonial hearing. On October 19, 2004, the defense also filed a motion for a Michaels*fn2 hearing. However, it appears from the record that, at the request of defense counsel, the Michaels hearing was not conducted pre-trial because his clients did not yet have the money to retain an expert to testify at such a hearing. On the first day of trial, November 9, 2004, defense counsel placed on the record that the judge "gave me the courtesy to allow me to call the expert on the [Michaels] hearing at a later date." The court confirmed that [w]ith respect to the application to have an expert testify on the question of whether the statement was taken in an inappropriately suggestive way or otherwise provided with insight about why the testimony of the child in this case is unreliable, [the motion] having been made so close to trial, normally I would just deny it out of hand. But I believe the defense explanation has some credibility, that the economic circumstances of the family made it unfeasible to get the expert sooner.
I don't want to foreclose it as a possibility.
The judge then indicated that he would hold the issue open until the conclusion of the trial to give the defense an opportunity to further consider the possibility of calling an expert on either the child's unreliability as a witness or the suggestive nature of the police interview.
The first trial witness was the victim's mother, who testified to the victim's statements to her. Over defense counsel's objection, the court ruled that the statements were fresh complaint evidence, admissible not for their truth but for the fact that they were made. The victim's mother testified to an occasion, about nine months after the last time A.E.L. babysat the child, when the child spontaneously pulled down his pants or pajamas and began touching his penis. When she asked him if he had to go to the bathroom, the child replied "[A.E.L.] does that." He then told her that while the victim's parents were "out for coffee," A.E.L. had "pee-peed" while he and the child were both sitting on the living room couch.
The child testified next. At that time he was four-and-a-half years old. He testified that A.E.L. used to baby-sit for him sometimes. He testified that he had seen someone else's penis, but he "still can't remember" who it was. He also testified that he could not remember what happened when he saw that person's penis, and he did not remember talking to the police. The prosecutor made no further effort to refresh the child's recollection. At that point, the prosecutor indicated that he had no further questions but that he had "an application." The court asked if the child should be removed from the courtroom and the prosecutor agreed. The judge asked the child to leave the room indicating "we may call you back in a little while, we'll see." Defense counsel stated "I have no questions."
When the child left, the State moved to have the detective who took the child's statement testify and to introduce the statement under N.J.R.E. 803(c)(27). The judge questioned whether the Tender Years exception, embodied in the Rule, might offend the Confrontation Clause. The prosecutor responded that the victim "was available and is a witness, [defense counsel] certainly can ask him questions and he can confront him." Defense counsel objected that since the child "doesn't remember anything" he could not cross-examine him. The judge observed that it was not clear that the child did not recall, and that the child's courtroom testimony resembled the beginning of the transcribed interview with the police, which the judge had seen. In that transcript, the child began by saying very little and "then he eventually began talking in some detail."
The judge then noted that he had not held a hearing as required by N.J.R.E. 803(c)(27) to determine the trustworthiness of the child's statement to the police. Therefore, the judge directed that the interview tape be played "with the understanding that this is part of the hearing to determine if it's admissible. And then after the tape is played, Counsel can make arguments." Accordingly, the tape was played, after which the judge stated, "All right. So [the child's] testimony is complete." The court then heard testimony from the detective who took the child's videotaped statement.
Defense counsel moved for a judgment of acquittal after the State rested, contending there was no corroboration of his client's confession. The court denied the motion, acknowledging that there were "still legal issues I haven't fully resolved." The prosecutor noted that defense counsel made no effort to cross-examine the child and so it was impossible to tell if the child could be cross-examined. Defense counsel responded that whether the child could remember "could've been probed on direct." Defense counsel then asked the judge to rule on the admissibility of the tape of the victim's statement before deciding what if any defense evidence to present.
On November 10, 2004, the trial judge heard argument on the admissibility of the statement. Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), defense counsel argued that the statement was inadmissible because the child, having no memory of the alleged event, was not genuinely available to be cross-examined. The prosecutor contended that the witness was available and did testify although his testimony was brief, and that defense counsel waived the opportunity to cross-examine. The judge ruled that the child was available:
[The child] did testify on direct that he saw someone's penis, which is reminiscent of what he said in his videotaped statement, but then he wouldn't [say] whose penis he saw.
[The child] strikes me as a very bright young man. He has a perfectly sound memory, but he is also a four year old. And I attribute his responses to his immaturity. I don't know what reasons he had for his responses, but the basic fact is, we're working with a little child, not an adult.
So as [defense counsel] . . . has articulated perfectly accurately, if Crawford requires the ability to effectively cross-examine a witness, then under Crawford, the statement couldn't come in if he were to be examined and all he could say is, I don't remember, I don't remember.
In this case, [defense counsel] made a decision not to cross-examine the young man. And I believe the law is that that would be a tactical decision by which the defense is bound.
And second, even if the child, on cross-examination, kept saying, he could not remember, that that would still satisfy the threshold issue for admissibility of the statement, that he was available for cross-examination. Of course, the fact that he wouldn't give any detail goes to the weight to be given to the statement.
The court set forth a detailed analysis of the admissibility of the taped interview under the standards set forth in N.J.R.E. 803(c)(27) and State v. Michaels, 136 N.J. 299 ...