On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-10-0966.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
On October 15, 2003, a Cumberland County Grand Jury charged defendant, V.E., with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One), and second-degree sexual assault,
N.J.S.A. 2C:14-2b (Count Two). Prior to trial, defendant's motions for an in camera review of the victim's psychiatric record was denied on April 23, 2004. That same day, the motion judge conducted a Rape Shield Hearing, N.J.S.A. 2C:14-7a, following which he excluded evidence of the victim's sexual history and her sexually transmitted disease.
On September 21, 2004, prior to jury selection, the trial judge denied defendant's request that he be permitted to attend sidebar conferences during the voir dire process or, alternatively, utilize an electronic listening device which would allow him to hear what was being discussed at sidebar. On September 22, after a Miranda*fn1 hearing, the judge denied defendant's motion to suppress statements he gave to the police. Following a three-day trial, a jury acquitted defendant on the first-count charge but convicted him on the second-count charge of second-degree sexual assault. Defendant's motion for a new trial was denied on November 18, 2004, and on December 17, 2004, the trial judge imposed a six-year term of incarceration with a mandatory 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.
At the time of the offense, J.E., defendant's daughter, was twelve years old and living with her mother, R.E., her three teenage sisters, and defendant in a four-bedroom duplex apartment in Bridgeton. At approximately five or six o'clock on June 4, 2003, J.E. arrived home and noticed a small tick just behind her left knee. She removed the tick and then showered. According to J.E., at no point did she ask either defendant or R.E. to check her further for ticks.
J.E. related that defendant went upstairs and "asked to see the jeans that the tick was on." J.E. showed him the jeans she had been wearing. J.E. was not yet dressed at that point and although she asked defendant to leave, he did not. J.E. then went to the other upstairs bathroom and changed into a bra, underwear, loose-fitting shorts, and a shirt. According to J.E., when she re-entered her bedroom, defendant told her that he needed to check her for ticks to see if there were any more on her "because it would be embarrassing for a doctor to do it, and he would rather do it." Defendant then locked the bedroom door and asked J.E. to lie sideways on her bed with her feet hanging off the side from the knees down.
J.E. stated that defendant knelt down and touched her "vagina area . . . [f]irst with his finger because he said he was feeling around to see if any ticks were in my vagina area, which I knew there were not." J.E. testified that defendant then "put his tongue into [her] vagina area" for ten to twelve seconds. Thereafter, defendant got up and told J.E. that she "was beautiful and [she] was growing up and [she] needed to experience some things. And it was [their] little secret, don't tell anybody."
Meanwhile, R.E. had called defendant from downstairs "a couple of times" and defendant responded by stating that he would "be down there in a minute." J.E. testified that just as defendant was about to leave the bedroom he lifted up her shirt because "[h]e said he wanted to check [her] breasts for ticks." J.E. related that defendant "lifted both the shirt and the bra up . . . [and] kissed both of [her] breasts instead of checking." He then gave her two dollars "and said that he was going to give . . . some more money the next day." Defendant left the bedroom but re-entered after approximately two seconds to tell J.E., "[d]on't tell . . . mom."
J.E. testified that she discussed the incident over the phone with her friend, J.C., who told her "to tell somebody because it could happen again." J.C. knew J.E. for about two years "[t]hrough school and stuff." J.C. confirmed the phone call and testified that J.E. told him that "her father was . . . feeling on her, trying to touch on her . . . [and] I told her to talk to her mother about it." On cross-examination, J.C. stated that he was not sure of the date that J.E. called him,*fn2 and further claimed that J.E. told him that her father "was trying to touch all areas of her body with his hands," and "that she felt he was trying to have sex with her."
On June 5, 2003, J.E. reported the incident to her mother, R.E., who called defendant at his brother's house and asked him about J.E.'s allegations. R.E. testified that J.E. and defendant "had a good relationship. They did everything together. They fished together and if he was down at his brother's, she would ride her bike and go down there where he was at. They had a perfect relationship." R.E. confirmed that on the evening of June 4, 2003, J.E. told both R.E. and defendant that she had removed a tick from her inner thigh, at which point defendant "checked her to make sure that the head or the legs wasn't embedded inside of her skin, like ticks do."
J.E. then went upstairs and took a shower. While R.E. was on the telephone, defendant went upstairs. After about a half hour, R.E. called upstairs for defendant and defendant responded that he would "be down in a minute." R.E. testified that she called twice for her husband.
According to R.E., defendant told her that "he was getting his work clothes out for the next day, and he was getting [J.E.] to iron them. He gave her a couple dollars to iron his pants. And that -- now that I remember that, he was checking her -- the dirty clothes that was in the hamper after she found a tick to see if any ticks was in her clothes." R.E. did not see J.E. for the rest of the evening.
The next day, after J.E. returned from school, she told R.E. "that her dad did something sexual to her, and was [R.E.] going to put him out." R.E. testified that when she asked J.E. to explain what she meant, J.E. did not respond. R.E. called defendant at his brother's house. She was angry and said, "[h]ow could you do something like that to my -- our daughter." She asked him to come home so they could "get everything straight." After waiting approximately an hour to an hour and a half for defendant to arrive home, R.E. called the police.
R.E. talked to defendant a few weeks later. She testified that he told her that he did check J.E. and that "[h]e just said he took . . . the ball of his finger and checked her . . .
[a]round her private area." On cross-examination, R.E. related that she has had Crohn's disease for over ten years, which has left her with a very weak immune system. R.E. also confirmed that she was aware that a tick bite could make her very ill because she had suffered from Lyme disease in the past. According to R.E., after defendant left the house in June 2003, J.E. got into trouble by skipping school, not obeying R.E, staying out past curfew, and sneaking people into the house that R.E. did not approve of. R.E. testified that J.E. "has a problem with authority figure[s]." When asked about J.E.'s ability to tell the truth, R.E. stated that she "caught her [daughter] in some lies, but no more than the normal kid would lie to their parents so they can get away with it."
J.E. conceded that she does not always follow the rules of her house and that she sometimes lies. However, she denied disobeying her mother, skipping school and sneaking people up to her room after her father left the house.
Sergeant James Battavio of the Bridgeton Police Department picked defendant up and transported him to City Hall. After escorting defendant to an investigation room, Battavio read him his Miranda rights. At trial, Battavio identified the Miranda warning card that set forth the warnings read to defendant, the date and time, defendant's signature, Battavio's signature as the advising officer, and the signature of Detective Chris Ward, the witnessing officer.
Detective Ward testified that, after witnessing defendant's waiver of his Miranda rights, he conducted a brief interview with J.E. Following that interview, Ward contacted the Division of Youth and Family Services (DYFS) and advised Battavio that he wanted to talk to defendant. Detective Ward conducted a taped interview with defendant, which was played for the jury during the trial.
According to the taped interview, J.E. "was complaining about a tick" and asked defendant "to check her for any more ticks." Defendant first checked her in the downstairs living room but did not see any ticks. After J.E. went upstairs, defendant looked through her clothes for more ticks. J.E. then "asked [defendant] to check her body again for ticks." According to defendant, he would have much preferred her mother to do it, but she was . . . my wife . . . she's sick [a]nd unable to do it, but . . . she didn't want to get no tick on her. So I proceeded . . . upstairs in the bedroom to look for ticks on her in her private areas.
And so that is what I was doing. I was looking for ticks. She asked me . . . she said it felt like it was up in her crotch area. And that's what I did, I looked and I know she's a female, I looked in her crotch area. I used my hand to look and . . . for ticks around her surrounding areas. And what they said I done with my tongue I did not lick her. I use my finger and I moved her clitoris to look for the ticks in that areas which she could not see for herself without having someone else look their self.
And . . . that's what I . . . I done. And I did not do anything that I think was maybe not appropriate for me being a man, but I did not do anything . . . I wish my wife would have done it herself, because she would have got up and looked for the ticks herself.
Defendant admitted that he "lifted up [J.E.'s] breast to check underneath of her breast for any ticks. Cause I told her, ticks . . . secrete there self [sic] underneath the moisture." Defendant admitted that he told J.E. not to say anything about him checking her for ticks "[b]ecause I thought it was unappropriate [sic] for me to check her. . . . [T]here was the other thing with my other daughter that . . . she had a boyfriend with an infestation of . . . crabs that I had to help them with cause my wife was in the hospital and I had to use that there to help them get rid of the infestation of that there." When asked which daughter he was referring to, defendant stated that he meant J.E.
In response to Ward's question whether defendant gave J.E. two dollars after the incident, defendant claimed that he gave her the money to iron his pants. Defendant also stated that he had a beer and "some liquor . . . maybe not even a shot" just before the incident, but that he "was not drunk."
Ward described defendant as being "very cooperative, talkative. It sounded like he wanted to talk about this whole incident." Although Ward smelled alcohol on defendant's breath, he did not observe anything unusual with defendant's eyes, there was nothing abnormal about the way he walked, and he seemed responsive to the questions that were asked. Ward was of the opinion that defendant was not intoxicated at the time of the interview.
On cross-examination, Ward stated that during his brief interview with J.E., J.E. told him that defendant "was sucking on her breast." When confronted with her statement to Ward and her statement on direct examination that defendant "kissed" her breasts, J.E. claimed that "it was like both."
Defendant presented Daniel Shrader, who was a police officer with the Bridgeton Police Department on June 5, 2003, and interviewed J.E. Shrader testified that J.E. used the words "touching" and "licking" to describe the type of contact defendant had with her breasts. J.E., however, did not remember using those words.
Defendant also elicited testimony from Investigator Heather McManus who was employed by the Cumberland County Prosecutor's Office in 2003 and spoke with J.E. on July 10, 2003. According to McManus, J.E. "stated that she wanted to clear something up that had been said that night. . . . She stated that her mother had told the police the night of the incident that [defendant] had sucked her breasts when he had actually kissed her breasts. And because they were all upset at that time that the terminology got mixed up." On cross-examination, McManus stated that she has investigated hundreds of sexual assault cases and that when victims are brought back "to clarify some issues or facts of the case, there are things that get brought out that might not have been brought out initially because it's so traumatic for someone to go through this."
Investigator Alexis Sheftall from the Cumberland County Prosecutor's Office spoke with J.E. on July 2, 2003. Sheftall stated that when she spoke with J.E., J.E. told her that defendant "gave her $2 to iron a pair of jeans." J.E. could not remember telling this to Investigator Sheftall.
Margaret Chandler also testified on behalf of defendant. She stated that she lives across the street from defendant's family, has known defendant since he was two years old, and has known J.E. since she was born. Chandler related that defendant had a reputation for being a truthful person, while J.E. had a reputation for being untruthful. Rodney Walker, a friend of defendant, testified that he has known defendant his entire life and that defendant is a truthful person.
Finally, J.P., J.E.'s maternal grandfather, testified that J.E. was an untruthful person. He further stated that defendant "really loves his kids and is a good provider for them," as well as a truthful person. At the conclusion of the testimony, the State and defense stipulated "that on October 24th, 2003, [J.E.] visited Dr. Patty Vitale . . . M.D., and during that examination, [J.E.] told Dr. Vitale that [defendant] . . . '[l]ifted my shirt and licked my breasts.'"
On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO CONDUCT AN IN ...