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State ex rel A.E.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2007

STATE OF NEW JERSEY IN THE INTEREST OF A.E.L.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FJ-03-2345-04-D.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2007

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.

I.

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 (1994), and concluded that the tape was admissible.

The judge then sua sponte reconsidered his earlier ruling that the child's mother's testimony would only be admissible as fresh complaint evidence and not under N.J.R.E. 803(c)(27). Defense counsel argued that the child's statement to his mother was not reliable, because the child might have fabricated it under stress generated by the fact that an adopted child was joining his family on that day. He also argued that under Crawford "we don't have a right of cross-examination here." He added, "And I do want to have the opportunity to address the issue of recalling the child." The prosecutor contended that the statement met all of the standards for admissibility under N.J.R.E. 803(c)(27). Defense counsel once again reminded the court that when he said he had "no further questions" for the child, it was in the context of anticipating a ruling on the Crawford issue as it related to the police interview. The court concluded that the victim's statement to his mother was substantively admissible and met the Crawford standard because the child was available for cross-examination.

Counsel then addressed the issue of re-calling the child for cross-examination. Defense counsel explained that by the time the attorneys finished arguing the admissibility issue the day before, it was 1:00 p.m. and the court had no more time to continue the hearing that day; in that context he agreed that the prosecutor could send the child home. Defense counsel also argued that he should be allowed to attempt to cross-examine the child although he expected it to be fruitless: it's somewhat meaningless because I think I'm gonna put him back up there and he's gonna say, I don't have any memory. I don't remember who did it. And it's just gonna be a reaffirmation of the same fact that we already know.

I don't know that I should even have to put him on the stand to state what is obviously true. If the Prosecutor, on direct examination, couldn't get his own witness to identify who did what or when or where or why, why would the kid, all of a sudden, tell me answers to those questions?

The prosecutor reminded the court that the State presented two additional witnesses after the child testified, and that defense counsel could have asked to re-call the child before those witnesses testified. The judge concluded that defense counsel waived his right to cross-examine the child. Significantly, he then reasoned:

However, in a normal case, I would have no hesitation in allowing an attorney to come back and say, look, you know, I made an oversight. Could we please recall that witness?

The difficulty here is we got a little four year old child. And it is true, [defense counsel] does not have to call him back to cross-examine him. If he chooses to call him back and cross-examine him, but he's not required to.

I do think this has all been done in good faith by the lawyers. I don't think either lawyer was trying to be tricky. I think we were all trying to be careful with the little boy. And I think the lawyers have been sensitive to the child.

But we were, I think, all surprised by the little boy's testimony. I know we had to sort out whether the Crawford [v.] Washington decision would . . . fit into this.

The judge then asked defense counsel what would happen if he brought the child back and the child repeated that he could not remember anything. "What else could we get from cross-examining?" Defense counsel contended that because the State would not concede what the defense felt was obvious -- that cross-examination would have been ineffective -- "now I have to put him on the stand and show that, in fact, it would've been ineffective." The court then reasoned that "it would be reasonable for an Appellate Court to infer that if the child were brought back to cross-examine, he would stand by his story that he couldn't remember whose penis he saw." Defense counsel responded that his client was entitled to have the child cross-examined to establish its inutility, and then once again waived cross-examination when the court ruled that the court would presume that cross-examination would be futile:

The COURT: Maybe you didn't understand me. I just gave you what you want --

[DEFENSE COUNSEL]: Okay, fine.

THE COURT: -- which is the assumption that the child would not cast anymore light on it.

[DEFENSE COUNSEL]: Right. If you're making that finding, yes, that's fine.

THE COURT: That's what I just said to you a few minutes ago.

[DEFENSE COUNSEL]: Okay.

THE COURT: But I'm not gonna recall the boy. I do not think it's fair to the child. You know, I already ruled on my view that apparently the law is that the child's here, is available for cross-examination, even if the child says he doesn't remember what happened. It does go to the weight of the statement, but it . . . satisfies the threshold requirement.

The judge then addressed the separate issue of expert testimony concerning "whether the interview of the little child was unduly suggestive." The court held that expert testimony would not be helpful on that issue.

The [police] interview was quite simple. It's very apparent what the strengths and weaknesses of the interview are. I think the lawyers had plenty of opportunity to explore that and that the expert is not really gonna be in a position to cast any light on this.

So, I will withdraw my previously indicated willingness to consider the post hearing motion to reopen and present additional testimony [on that issue.]

Defense counsel did not object, submit an expert report, or make a proffer as to the expert testimony he wished to present on that issue.

On the next hearing day, November 12, 2004, defense counsel proffered an expert report from Dr. Atkins on a different issue, concerning the child's purported inability to "understand the sexual nature of [defendant's] conduct" in masturbating in front of the child. The State objected that defense counsel had not given notice that an expert would be called on that issue and that the testimony would be irrelevant to the issue of whether defendant was acting for his own sexual gratification by exposing himself in front of another person. The court ruled the report inadmissible.

The defense also sought to present testimony from defendant's uncle, a retired police officer, as an expert witness on how A.E.L. "would hold up, given what he knows about police interrogation techniques, and the particular mental makeup of A.E.L." In other words, the defense apparently sought to attack the validity of the confession. The judge ruled that "it would not appear to be appropriate expert testimony, both because of the lack of notice and inability for the State to have its own expert, but also . . . it would appear to me to be generally not an area [in] . . . which expert testimony would be particularly appropriate."

In rendering a decision, the judge noted that "[A.E.L.]'s not actually charged with sexual assault by masturbating in the presence of the little boy. He's charged with having touched the little boy and having the little boy touch him. And the question was brought up, well, is there sufficient corroboration?" The judge concluded that the child's statement to the police was sufficient corroboration. "The little boy's story about what happened shows clearly that something went [awry], some sexual misconduct occurred. He's pretty specific about what he says. He's pretty persuasive." The judge also reiterated his conclusion that defense counsel waived the right to call the child back for cross-examination and also "that further cross-examination would not have been productive."

II.

On this appeal, A.E.L. raises the following arguments:

POINT I: THE TRIAL COURT ERRED BY DENYING A.L.'S MOTION TO SUPPRESS THE STATEMENTS HE MADE TO THE POLICE. (Raised Below).

POINT II: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT PREVENTED A.L. FROM CROSS-EXAMINING J.F. (Partially Raised Below).

POINT III: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ADMITTED J.F.'S STATEMENTS MADE TO THE POLICE DURING A PRE-TRIAL INTERVIEW WITHOUT HOLDING A HEARING REGARDING THE SUGGESTIBILITY OF THE TECHNIQUES UTILIZED. (Raised Below).

POINT IV: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ADMITTED J.F.'S VIDEO TAPED HEARSAY STATEMENTS TO THE POLICE AND PERMITTED [J.F.'S MOTHER] AND THE POLICE TO TESTIFY REGARDING HIS HEARSAY STATEMENTS TO THEM. (Raised Below).

A. J.F.'s Out Of Court, Hearsay Statements To The Police Should Have Been Excluded As A Violation Of The Confrontation Clause.

B. J.F.'s Out Of Court, Hearsay Statements To The Police And [J.F.'s Mother] Should Have Been Excluded Because They Did Not Qualify Under The Tender Years Exception.

C. J.F.'s Out Of Court, Hearsay Statements To [His Mother] Should Have Been Excluded Because They Did Not Qualify As A Fresh Complaint.

POINT V: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT DETERMINED THAT J.F. WAS COMPETENT TO TESTIFY. (Raised Below).

POINT VI: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT FAILED TO ORDER DISCLOSURE OF J.F.'S PEDIATRIC AND PSYCHIATRIC RECORDS AND PREVENTED A.L.'S EXPERT FROM INTERVIEWING J.F. (Raised Below).

POINT VII: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT PREVENTED HIS EXPERT WITNESSES FROM TESTIFYING AT TRIAL AND REFUSED TO ADMIT AN EXPERT REPORT INTO EVIDENCE WITHOUT CONDUCTING A N.J.R.E. 104 HEARING. (Raised Below).

POINT VIII: A.L.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ACCEPTED J.F.'S VIDEO TAPED STATEMENT AND A.L.'S AUDIO TAPED STATEMENTS TO THE POLICE INTO EVIDENCE BECAUSE THE STATE FAILED TO PROVE AN UNINTERRUPTED CHAIN OF CUSTODY. (Raised Below).

POINT IX: THE TRIAL COURT ERRED WHEN IT DECIDED THAT THERE WAS SUFFICIENT EVIDENCE CORROBORATING A.L.'S STATEMENTS TO SUSTAIN A CONVICTION. (Raised Below).

POINT X: THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH IX, SUPRA, DENIED A.L. HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL.

POINT XI: THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A.L. A JUDGMENT OF ACQUITTAL ON BOTH COUNTS. (Raised Below).

We find no merit in defendant's contention that his confession was not voluntary. As in State v. Presha, 163 N.J. 304, 318 (2000), A.E.L.'s mother "was present at the outset of the encounter with the police, before any questioning of her son. She had the opportunity to offer support to defendant, to witness the signing of the Miranda card, and she consented to her initial absence from the interrogation area." Because A.E.L. was seventeen, the more stringent standards Presha set for interrogation of minors under age fourteen do not apply. See State ex rel. Q.N., 179 N.J. 165, 174-77 (2004). The trial judge credited the testimony of the police concerning the events surrounding the interrogation, including the fact that A.E.L. did not want his mother present during the questioning and his mother did not, as she claimed, repeatedly try to enter the interrogation room. The judge did not find A.E.L.'s mother to be a credible witness. He concluded that the police did not exclude her from the interrogation room. We defer to the trial judge's factual findings which are based on his observation of the witnesses and his credibility determinations. State v. Locurto, 157 N.J. 463, 470-74 (1999).

Defendant's contention that he was denied a hearing pursuant to State v. Michaels, supra, 136 N.J. at 320, is without merit. Defendant filed a pre-trial motion for a Michaels hearing but waived a pre-trial hearing because at that time the defendant's parents were apparently unable or unwilling to pay for an expert witness to appear on that issue. Once he had heard all of the trial testimony, the judge indicated that Michaels testimony was not necessary because there was no evidence at all of the kind of impropriety present in Michaels. We agree. It is defendant's burden to establish the need for a Michaels hearing. Michaels, supra, 136 N.J. at 320-21. Nothing in this record, including the video of the child's interview, even vaguely hints at any suggestiveness or other impropriety in the handling of the child's interrogations by the police or by his parents.

We find no merit in defendant's claim that he was denied the right to voir dire the child on his competency to testify as a witness. Defense counsel began to ask a question as to whether the witness understood "the difference between telling . . . about something that you actually have a current memory of as opposed . . . ." At this point the prosecutor interposed an objection that the question went "beyond finding out if he's competent to be a witness." The judge sustained the objection on the grounds that it was more properly the subject of cross-examination rather than voir dire. Although the prosecutor should have permitted defense counsel to complete his question before interposing an objection, we find no error in the judge's ruling. Defense counsel did not indicate that he wished to ask other questions on the issue of competency to testify. Moreover, we conclude that although the judge's questioning might have been more thorough, it was sufficient to establish that the child was competent to testify. See State v. G.C., 188 N.J. 118, 120 (2006).

Defendant also contends there was insufficient corroboration of A.E.L.'s confession. It is fundamental that a defendant cannot be convicted based solely on his confession. The State must produce evidence to corroborate the confession. State v. Lucas, 30 N.J. 37, 51 (1959). However, although it has been said that the State must corroborate every "element" of the crime including proof of the corpus delicti or "loss," id. at 55-56, that requirement may be met by producing proof that lends credibility to the confession. The Supreme Court addressed this issue in State v. Di Frisco, 118 N.J. 253, 273 (1990), a capital murder case in which a crucial issue was whether the defendant had committed the murder for hire:

Under the New Jersey rule, the State need not produce independent proof that Franciotti paid DiFrisco but must produce only "independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness." Lucas, supra, 30 N.J. at 56. Or, in other words, "[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused." Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192, 200-01 (1954), quoted in 7 [J. Wigmore, Wigmore on Evidence], § 2071, at 512 n.3. [Ibid.]

In this case, defendant contends that there is not independent corroboration for his confession that he touched the child's penis and caused the child to touch A.E.L.'s penis, the facts upon which the State based the two charges of sexual assault. Having reviewed the record, we conclude that the corroboration for these specific facts is minimal at best. We have been provided with a transcript of the child's interview as well as the videotape of the interview. The transcript does not indicate the child's nods and shakes of the head; the videotape is more informative. The child gave both affirmative verbal responses and nods when asked if he saw A.E.L's penis. He also testified verbally to conduct by A.E.L. that would constitute masturbation. He also stated that A.E.L. told him to "pull your pants down and stick it out." When asked "Did you do it?" the child responded with a nod of the head and then "um hm." However, when the officer later asked the child "did [A.E.L.] ever ask you to touch him?" the child responded with a vigorous negative shake of his head. He gave the same negative response when asked "Did [A.E.L.] ever touch you?"

The child's mother's testimony on this point is ambiguous. She testified that she saw her son pull down his pants and touch his penis. When she asked him why he was doing this, he responded that "[A.E.L.] does that." The child's reported statement is unclear as to whether A.E.L. touched the child's penis or whether the child simply witnessed A.E.L. masturbating. However, like the child's videotaped statement to police, the statement to his mother strongly supports a conclusion that some type of sexual incident occurred when A.E.L. and the child were together. The child's testimony that he saw "someone's" penis adds some, but not much, credibility to the confession when combined with the fact that he told his mother about an incident with A.E.L.

We conclude that, if otherwise admissible, the State's evidence was sufficient to corroborate A.E.L.'s confession. The corroboration is certainly much stronger with respect to A.E.L.'s confession to acts which, if committed by an adult would constitute lesser offenses than sexual assault, such as endangering the welfare of a child or lewdness. However, applying the standard in Di Frisco, supra, 118 N.J. at 273, that the independent evidence need only bolster the reliability of the confession itself as opposed to independently establishing every element, we conclude the evidence is sufficient, if minimally so, to corroborate the confession on the sexual assault charges. Added to this is the fact that A.E.L. was seventeen when he made the confession, and there is no evidence of coercion or other police impropriety surrounding the confession.*fn3

That brings us to the more troubling question of the admissibility of the corroborating evidence, most of which was eventually admitted under the Tender Years exception to the hearsay rule, N.J.R.E. 803(c)(27). That rule provides:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

We begin by considering the testimony of the child's mother. The child's statement to his mother was not "testimonial hearsay" because it was not made to law enforcement nor was it made during the course of an investigation. See State v. Buda, 389 N.J. Super. 241, 257 n.11 (App. Div. 2006) and id. at 262 n.5, (Sabatino, J. concurring). Therefore, its admission for its truth under a hearsay rule exception did not implicate defendant's rights under the Confrontation Clause, as construed in Crawford v. Washington, supra, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. However, the State did not present the statement for its truth, and the court's later sua sponte decision to admit the statement for its truth was fundamentally unfair to defendant.

The State did not initially present the mother's testimony under N.J.R.E. 807(c)(27), and the court did not hold the required hearing to determine the admissibility of her testimony under that rule. Rather, the State presented the mother's testimony as fresh complaint evidence, which, as the trial court correctly noted, is not admitted for the truth of the child's statements to his mother. The child testified next, indicating only that A.E.L. babysat for him and that he saw someone's penis. Defense counsel did not cross-examine the child. However, at that point, defense counsel had no reason to cross- examine the child on his alleged statement to his mother because the judge had ruled that the mother's statement would only be considered as "fresh complaint" evidence and not for the truth of what the child told her.

It was prejudicial error for the judge to decide sua sponte, at a later point in the trial, that the mother's testimony would be considered substantively. Moreover, at that point, after the judge had used the mother's testimony to bolster the admissibility of the child's statement to the police, defense counsel stated that he might want to re-call the child for cross-examination. The court's later denial of this request was likewise fundamentally unfair. Even if defense counsel did not later specifically ask for cross-examination on the child's statement to the mother, his strategy might have changed considerably if he had known, at the time of the child's testimony, that the mother's testimony would be considered for its truth. That is particularly the case since without her testimony there was no corroboration that A.E.L. actually touched the child. Had the court followed the proper procedure, requiring the State to identify the mother's testimony as N.J.R.E. 807(c)(27) evidence, and had the court held the required pre-trial hearing, defense counsel would have been able to focus on the significance of that testimony and could have made an informed decision whether to cross-examine the child about his statements to his mother.

We turn next to the various issues concerning the admissibility of the child's videotaped statement to the police and defendant's opportunity to cross-examine the child on this statement. As we recently held in State v. Burr, ___ N.J. Super. ___ (App. Div. 2007) (slip op. at 43), a child's taped statement to police is "unquestionably testimonial hearsay" within the meaning of Crawford, supra, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. See also Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006). Of course, under Crawford, the Confrontation Clause does not bar the use of a declarant's prior testimonial statement "so long as the declarant is present at trial" and can be cross-examined on the statement. Crawford, supra, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197 n.9; Burr, supra, slip op. at 43. In Burr, we held that the Confrontation Clause did not preclude admission of a child's taped statement under N.J.R.E. 803(c)(27), so long as the child appeared at trial and could be cross-examined. Burr, supra, slip op. at 44. We specifically noted that we were not addressing a situation where a child victim takes the stand but cannot remember sufficient details of the offense to provide meaningful testimony or is unable or refuses to respond to questions posed on cross-examination.

In such instances, an argument could be made that while technically "available" for testimony, no realistic opportunity for cross-examination is presented. [Ibid.]

In Burr, the child was extensively cross-examined, although she was not cross-examined on the videotape, because it was played for the jury after the child testified. Ibid. However, defense counsel evidently did not ask to re-open cross-examination and in any event defense counsel admitted that cross-examination on the videotaped statement would have added nothing to the case.

In this case, the child appeared unable to recall the essential facts on which the State's entire case was based. When the child testified initially, he could not or would not testify to anything beyond the fact that he saw some unnamed person's penis. Defense counsel, understandably, declined to cross-examine the child because the child's testimony had not incriminated the defendant and because the court had not yet ruled on the admissibility of the police interview. Defense counsel was on the horns of a dilemma. If he cross-examined the child on the police interview, he might be opening the door to its admissibility and might elicit information damaging to his client to which the witness had not testified on direct. If he did not cross-examine the witness, he might be held to have waived cross-examination (as happened here) and would certainly leave the record ambiguous as to whether the child could be cross-examined.

After the child testified, the court held a hearing on the admissibility of the child's videotaped interview with the police and held it admissible for its truth under N.J.R.E. 803(c)(27). The court then refused to allow defense counsel's request to re-call the child for cross-examination, thus obviating any opportunity to make a record as to whether the child was "available" for cross-examination under Crawford. Instead, the court simply concluded that cross-examination of the child on the issue of the police interview would not have been productive, and defense counsel agreed. Thus, the child was never cross-examined on either of his statements. We conclude that this entire procedure, while understandable in terms of concern for the child, short-circuited the defendant's rights and disserved the interests of justice.

As in Burr, we are inclined to conclude that for Confrontation Clause purposes, a child witness who remembers nothing and cannot meaningfully be cross-examined on his statements to the police is not "available" for cross-examination so as to make the videotaped police interview admissible under Crawford. Burr, supra, slip op. at 44. But see United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed. 2d 951 (1988). However, we need not definitively answer the question here, because on this record defendant was improperly deprived of the opportunity to cross-examine the child on both the statement to the mother and the statement to the police, and it was error for the judge to declare the child unavailable without giving defense counsel the opportunity to ask questions. This is particularly so where the linchpin of the State's case is the defendant's confession and where the child's statements provide the corroboration necessary to bolster the confession. We are also troubled by the fact that, throughout the testimonial portion of the trial, both counsel and the judge never focused on the central importance to the State's case of proving that A.E.L. committed sexual assault by touching the child's penis or having the child touch him. If cross-examined, the child might have confirmed what he told the police officer with the vigorous shakes of his head - that A.E.L. did not touch him. Had the child been cross-examined, the court might have acquitted defendant of the sexual assault charge and convicted him of a lesser included offense.

We conclude that the errors in this case deprived A.E.L. of a fair trial and require reversal and re-trial.*fn4 In that connection we emphasize the importance, even in a bench trial, of observing the formalities required by the Rules of Evidence and resisting the temptation to truncate these formalities in the interest of efficiency. Given the consequences to the defendant posed by potential lifetime registration under Megan's Law, juvenile sex offense trials must be conducted with scrupulous care for the rights of the defendant as well as with sensitivity to child witnesses.

Reversed and remanded.


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