November 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GLYNN REX WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-06-1220.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Lintner and Sabatino.
Tried to a jury, defendant Glynn Rex Williams was convicted of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2b; and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. The offenses arose out of the improper touching of a six-year-old girl, B.D., in her parents' bedroom while defendant and his wife were staying at her home. Defendant was sentenced to a merged twelve-year prison term.
Defendant contends that he was wrongly convicted because the trial judge barred testimony that B.D.'s parents had asked him to submit to a polygraph examination before they reported his alleged conduct to the police. He also appeals his sentence on grounds of excessiveness. We affirm.
The State's proofs at trial established the following facts. In August 2001, defendant and his wife, Jackie Williams, were visiting the home of Jackie's relatives, including B.D., who was six years old at the time. B.D. lived in the house with her mother, G.D., and her father, D.D. Jackie and G.D. are cousins, and they saw each other and their respective families about once a year. B.D. was familiar with defendant, and called him "Uncle" even though he was not actually her uncle.
As of August 2001, Jackie had been married to defendant for about ten years. Although defendant has adult children and grandchildren from two previous marriages, he and Jackie did not have any children together. At the time of the offense, defendant was sixty years old.
The Williams were spending a few days with B.D.'s family in August 2001 before heading to another family member's birthday party. Sometime in the late morning of August 9, 2001, B.D. was watching cartoons in her parents' bedroom upstairs when defendant came into the room. Her mother, G.D., and Jackie were in the house at the time, having a conversation in the kitchen. B.D.'s father, D.D., had just left for work about fifteen minutes earlier.
According to B.D., as she was sitting on her parents' bed, defendant came over to her, pushed her knees apart, and licked her vagina. She was wearing a bathing suit, and defendant pulled her suit to the side. B.D. testified that she tried to push her legs back together, but she could not. Defendant exposed himself to B.D. and walked out of the room. B.D. then washed herself in her parents' bathroom, and went downstairs to tell her mother what had happened.
G.D. testified that she was sitting at the kitchen table that morning with her cousin Jackie when she saw defendant come downstairs and go out onto the deck. A few minutes later, B.D. came downstairs, went over to G.D., and told her she had to talk to her. According to G.D., her daughter "looked concerned. She looked somber. She looked scared." G.D. also recalled that her daughter spoke in a whisper.
Because B.D. wanted to talk to her mother privately, the two of them went into the living room, where B.D. disclosed what had happened up in the bedroom. Specifically, G.D. recalled that B.D. told her, "Uncle Glynn licked me between the legs."
After that conversation, G.D. took B.D. up to her bedroom and locked the door, and B.D. repeated what she told her downstairs. She also told her mother that, after defendant had licked her, he asked her if it felt good. G.D. asked her daughter if defendant had "put anything inside of [her]." B.D. replied that he had not, except for his tongue.
G.D. then went downstairs and approached her cousin Jackie. She told Jackie what B.D. had told her, and then let Jackie speak with B.D. alone. Jackie then met with B.D. The accounts of their meeting varied slightly. According to B.D., Jackie raised nothing of substance to her. According to Jackie, she asked B.D. if perhaps defendant and she had been "horse playing" and if he had just touched her by accident, but B.D. did not reply.
Jackie then went downstairs to confront defendant about what was going on. She testified that he told her, "I didn't do anything to that child." G.D., meanwhile, testified that defendant only spoke to her in passing, and said that perhaps B.D. was confused. G.D. did not call her husband at the time because she feared he would come home and there would be a "physical encounter." Instead, defendant and Jackie packed up and left to stay with other relatives, having already planned on leaving later that day.
After the Williams left, G.D. called her husband, D.D., and apprised him of the situation. D.D. called defendant later that night to ask what had happened. According to D.D., defendant replied that he didn't do anything wrong, although he did ask D.D. how he could "make it better."
About a month later, D.D. and G.D. went to Long Beach Island and met with Jackie to discuss the situation. Defendant was not present for that conversation. According to D.D., they had met hoping to "resolve th[e] issue," but apparently that did not happen. As Jackie recalled it, B.D.'s parents wanted defendant to take a polygraph test. Jackie responded that her husband would take one when they got back to their home in Texas.
Upon returning to Texas, however, defendant sought the advice of a lawyer. Following that consultation, defendant decided that he would not take a polygraph test in Texas. Instead, defendant and Jackie, who were expecting to move to California, told B.D.'s parents that defendant would take the test when he got to California. A few months later, while still living in Texas, Jackie received another call from B.D.'s parents, who were upset because defendant had still not taken the test. At this point, defendant asserted that he would not take any test.*fn1
According to Jackie, D.D. responded, "then I'm going to prefer charges."
B.D.'s parents first contacted the police in January 2002, five months after the August 2001 incident occurred. When asked at trial on direct examination why they had waited that long to report the incident, G.D. explained that:
We wanted [defendant] to admit it on his own basically. We were hoping that it wouldn't come to this. And you know, I didn't want-- I wanted not to traumatize my daughter any longer.
She didn't want to talk about it. . . .
[M]y aunt died in January. I was dealing with that. I was close to her. And we didn't really-- we didn't know what to do.
In D.D.'s direct testimony on this subject, he stated that he and his wife had waited to file a report because they had hoped to work out the problem within the family. He noted that "[w]e wanted to talk to see if [defendant] could get help or some kind of resolution to the fact." D.D. further explained that there had been several deaths in the family around that time and that "[the] family's been through a lot of hard times."
Following an investigation, defendant was indicted on the instant sexual assault charges and arrested in California. He pled not guilty and returned to New Jersey for trial.
Prior to trial, defense counsel filed a motion seeking to compel the State to stipulate to defendant taking a polygraph exam. The judge denied this motion, citing case law in New Jersey prohibiting the use of polygraph tests as evidence at trial unless stipulated to by both parties. See, e.g., State v. McDavitt, 62 N.J. 36 (1972).*fn2
Following the disposition of other pretrial motions that have not been appealed, trial commenced on October 1, 2003. As the centerpiece of its case, the State presented B.D., who was eight years old at the time of her testimony. The transcript reflects that, in response to substantially open-ended questions from the prosecutor, B.D. described in detail for the jury what defendant had done to her in her parents' bedroom. B.D. was not asked about defendant's specific conduct on cross-examination, nor was she confronted with any prior inconsistent accounts of the events. The State also presented testimony from G.D. and D.D., as well as from two detectives who had investigated the case.
Defendant testified on his own behalf, flatly denying the allegations and specifically denying that he had any contact with B.D. in her parents' bedroom. Defendant contended that he and B.D. did "tickle" one another in her own bedroom on the morning in question before her father left for work, but that he had only tickled her and had not touched her inappropriately. Also testifying for the defense were Jackie and fourteen character witnesses, including relatives and friends from New Jersey, Texas, and California. The character witnesses all vouched for defendant's good reputation for honesty and truth-telling.
Prior to defense counsel calling Jackie Williams as his first witness, he asked the judge for leeway on direct examination to inquire into the issue of B.D.'s parents wanting defendant to take a polygraph test. Defense counsel argued that the State had "opened the door" to such an inquiry in its case in chief, by eliciting testimony from G.D. and D.D. as to why they had waited five months to contact police.
The judge denied the application, prohibiting any testimony before the jury concerning polygraph tests. When defense counsel continued to press the issue, the judge excused the jury and conducted a Rule 104 hearing. See N.J.R.E. 104. In that hearing, the judge heard testimony from Jackie recalling her conversations with B.D.'s parents about her husband taking a polygraph test. After considering that proffer, the judge reaffirmed his ruling to exclude any evidence about polygraph testing. Counsel adhered to that ruling for the balance of the trial.
Only a few hours after they were charged on the law, the jury convicted defendant of all three counts of the indictment. Defendant moved for a new trial, contending that the trial judge had erred in foreclosing testimony about B.D.'s parents' desire to have defendant submit to a polygraph. The motion was denied at the time of sentencing. The judge again invoked the established case law disallowing polygraph evidence. Defendant was sentenced, and this appeal ensued.
Defendant's sole argument to vacate his convictions on appeal reiterates his position that the judge should have permitted his counsel to adduce evidence that B.D.'s parents had tried to persuade defendant to submit to a polygraph exam before reporting the incident to the police. We disagree.
More specifically, defendant argues that the trial court's prohibition impinged on his right to cross-examine adverse witnesses. He maintains that proof of the request for a polygraph was highly relevant to impeach the parents' explanation of why they had waited five months before contacting the police. Such proof also was relevant, he argues, to imply that the parents did not believe their daughter's allegation that defendant had assaulted her, and that they were waiting for the results of a polygraph before pressing any charges. Defendant further argues that, in a trial where credibility was a key issue, the judge should not have allowed the State to bolster B.D.'s credibility through her parents' testimony about the surrounding circumstances and their professed reasons for delaying a report to the police, while at the same time excluding proof suggesting that the parents may have harbored doubts about their daughter's veracity.
We begin our analysis by noting that for decades our case law clearly has disfavored the admission of polygraph evidence at trial, except in very limited circumstances. See State v. Domicz, 188 N.J. 285, 313-14 (2006); McDavitt, supra, 62 N.J. at 43; State v. Driver, 38 N.J. 255, 261 (1962); State v. LaRocca, 81 N.J. Super. 40, 46 (App. Div. 1963). That prohibition is based upon longstanding doubts about the scientific reliability of polygraph testing, and the prospect that jurors may be confused or misled by the significance of such tests. See Domicz, supra, 188 N.J. at 312-13; Driver, supra, 38 N.J. at 261.
We further note that we generally afford substantial deference to a trial court's evidentiary rulings. State v. Ramseur, 106 N.J. 123, 266 (1987). Where a trial judge has excluded evidence that is apt to mislead or confuse jurors or create undue prejudice, appellate courts will uphold such rulings unless there is a "clear error of judgment." State v. DiFrisco, 137 N.J. 434, 496-97 (1994). See also N.J.R.E. 403.
Under New Jersey law, a polygraph exam is not admissible evidence to prove that a person is either lying or telling the truth. Domicz, supra, 188 N.J. at 312-13; Driver, supra, 38 N.J. at 261. Likewise, evidence that a defendant either offered to take a polygraph test or refused to take one is not admissible at a criminal trial. Driver, supra, 38 N.J. at 261. The narrow exception to the rule of inadmissibility was expounded in McDavitt, where the Court held that the results of a polygraph exam are admissible only when both the State and the defendant so stipulate. McDavitt, supra, 62 N.J. at 46.
In McDavitt, it was the defendant who first injected the polygraph issue into the trial, testifying, over the State's objection and against the court's advice, that he had offered to take a polygraph test to prove his innocence. Id. at 41. After the jury heard that testimony, the court took a recess, during which defendant and the prosecutor agreed to have defendant administered a polygraph mid-trial, with the results of that test being deemed admissible. Id. at 41-42. Defendant took the polygraph and failed it. Id. at 42. He was ultimately convicted. Id. at 39.
In assessing the circumstances in McDavitt on appeal, the Supreme Court first noted that the trial court should have sustained the State's objection at the outset and not allowed any testimony regarding the defendant's polygraph offer into evidence. Id. at 43. Nonetheless, the Court upheld the admissibility of the exam results because both parties eventually had stipulated to its admissibility, and the jury was given a limiting instruction that the polygraph exam was not direct proof of defendant's guilt or innocence. Id. at 47.
Here, defendant argues that the present case is distinguishable from McDavitt because, unlike the defendant in that case, he was not seeking to introduce polygraph evidence to directly prove his veracity as a witness and thus his innocence. Rather, he sought to use the polygraph evidence to impeach the credibility of the State's witnesses, particularly the alleged victim's parents.
The impeachment use of polygraph evidence was addressed in State v. Castagna, 187 N.J. 293 (2006), a case involving multiple co-defendants who allegedly had participated in a murder. One of the State's witnesses was a former co-defendant, Violet Arias, who had pleaded guilty to a lesser charge in exchange for testifying against the others. Id. at 306-07. After supplying detectives with inconsistent versions of the events in question, Arias stipulated to take a polygraph exam. Id. at 306. She failed the exam, and after she was confronted with the results, she then changed her story again and agreed to cooperate with police, implicating the co-defendants. Id. at 307. At the ensuing trial, the defense sought to impeach Arias's testimony by showing that she had changed her account after failing a polygraph test, suggesting that she was not a believable witness. Ibid. The trial judge refused to allow the defense to inquire into the polygraph exam because the co-defendants had not been parties to the stipulation. Ibid.
The Supreme Court disagreed with the trial judge's evidentiary ruling in Castagna, finding that the defendants had a right to confront Arias with evidence that she was lying. Id. at 311. The Court in Castagna distinguished its holding in McDavitt by finding that "the reliability of the polygraph test results was not important. It was Arias's belief that the polygraph test results revealed she had not told the truth . . . that was crucial." Id. at 311. Nonetheless, the Court upheld the convictions, finding that the trial court's error was harmless because the defendants were able to impeach Arias's credibility through other means, and because the other evidence against them was overwhelming. Id. at 312-13.
Defendant likens his desire to use polygraph-related testimony for impeachment purposes in this case to the situation in Castagna. However, the circumstances before us are altogether different. First, unlike Arias, the witnesses sought to be impeached here, B.D.'s parents, were never subjected to a polygraph exam. Nor were B.D.'s parents, unlike Arias, eyewitnesses to any criminal acts. Moreover, the parents' account of their daughter's conduct following her encounter with defendant was not contradicted by the results of any polygraph testing.
Nor is the parents' apparent request to defendant that he submit to a polygraph plainly inconsistent with their stated reasons for not reporting the events to the police sooner. The parents simply testified that they had initially wanted to try to resolve the situation within the family, without involving law enforcement. The fact that they asked defendant to take a polygraph exam merely specifies that manner in which they had sought to resolve the situation; it does not contradict their testimony about what they observed their daughter say and do after the incident in any meaningful way.
Further, even if one were to view the parents' polygraph request as inconsistent with their explanation for not going to the police sooner, such proof would only have impeached their credibility on a collateral matter. As defense counsel acknowledged at trial, the key issue in the case was not who sexually assaulted B.D., but whether the assault actually happened. Consequently, it was the credibility of B.D. and of the defendant, both of whom testified before the jury, that mattered most. The parents were not eyewitnesses to what did or did not transpire in their bedroom, and the matter of why they delayed five months in contacting the police was, at best, a collateral issue. That is in stark contrast to Castagna, where a major issue in the case was the credibility of Arias, an eyewitness to a homicide who had given inconsistent versions of what she saw at the crime scene.
Defendant also argued that the excluded testimony was relevant to prove that B.D.'s parents had wanted defendant to take a polygraph because they personally doubted the truth of her accusations. Such proof, defendant argues, would indirectly bear upon B.D.'s own credibility. However, such a theory of admissibility is wholly improper.
Except for the limited exceptions specified under N.J.R.E. 608 allowing opinion and reputation testimony about a witness's general character for truthfulness or untruthfulness, which are not invoked or applicable here, our courts do not allow a fact witness to comment on the credibility of the testimony of another witness. Rather, "[i]t is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). See also State v. Frisby, 174 N.J. 583, 595 (2002) (finding reversible error where a State's witness had been permitted to testify that another witness was "more credible" than the defendant). Here, the jury heard and saw B.D. testify. It is the jury's assessment of the credibility of her narrative, not her parents' hypothesized assessment, that matters.
Defendant's effort to show that B.D.'s parents may not have believed her, through proof that they had wanted defendant to take a polygraph exam, amounts to eliciting from the parents an inadmissible assessment of their daughter's credibility, not as to her credibility in general as may be allowed under N.J.R.E. 608, but as to her specific account of the events in this case.
Such a line of questioning is impermissible, particularly where it would trigger the risks of juror misconceptions about the reliability of polygraphs. Furthermore, because this case, like Frisby, was a "pitched credibility battle" between B.D. and defendant, "[a]ny improper influence on the jury that could have tipped the credibility scale" was to be kept out of the courtroom. Frisby, supra, 174 N.J. at 596.
We are convinced that the harmful consequences of allowing the jury to hear evidence about the parents' request for a polygraph exam would have substantially outweighed that proof's claimed probative value. N.J.R.E. 403. As the trial judge aptly noted in his ruling on defendant's motion for a new trial, such testimony had a high potential for misleading and confusing the jury. The judge explained:
We would have been left in a situation of people speculating about whether a polygraph was taken or not.
We had a situation where the polygraph was taken two years afterwards. So there was really no probative value at that time. And if there was any probative value it was certainly outweighed by the confusion and prejudice it would cause by getting into an area that clearly the [c]courts have indicated, absent a stipulation, that should not be entered into.
Indeed, such testimony easily could have harmed the defendant, because the jury might have inferred from his refusal to acquiesce to the parents' request to take an exam that he was guilty. See Driver, supra, 38 N.J. at 260-61.
For all of these reasons, we are satisfied that the trial judge's exclusion of testimony about the parents' polygraph request adhered to our case law, which strictly curtails the admission of polygraph-related evidence and which also disallows a witness's personal views on the believability of the testimony of other witnesses. Apart from those precepts, the proffered testimony also was soundly excluded under Rule 403, in light of its clear capacity to mislead and confuse the jurors, and to inject undue prejudice into the trial.
Additionally, the judge's ruling did not violate defendant's constitutional rights of confrontation, as we are satisfied that the exclusion of the polygraph-related testimony advanced "'legitimate interests in the criminal trial process . . . designed to ensure the fairness and reliability of criminal trials.'" Castagna, supra, 187 N.J. at 309 (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157, L.Ed. 2d 1204 (2004)). We note that defense counsel did cross-examine the parents on several other issues, including the physical layout of their house and their separate observations of their daughter and defendant on the morning in question.
Lastly, we are convinced that any error in the exclusion of the polygraph proof was harmless beyond a reasonable doubt. Id. at 312-13 (finding exclusion of polygraph-related evidence for purposes of impeaching a State's witness to be harmless); see also State v. Macon, 57 N.J. 325 (1971). The sole and pivotal eyewitness to the sexual assault was B.D., not her parents. Her sworn account of defendant's wrongdoing, as transcribed in the record, is graphic and unequivocal. The polygraph testimony was merely collateral, and its exclusion does not undermine, in any significant way, the jury's ultimate findings of defendant's guilt.
Defendant also contends that his sentence was manifestly excessive. Preliminarily, we note that defendant fled before his scheduled date of sentencing in December 2003, causing a bench warrant to be issued for his arrest. He was a fugitive for nearly two years, until he was apprehended in Mexico in October 2005. Defendant was returned to New Jersey for sentencing, which finally took place in December 2005.
The sentencing judge merged all three counts of the indictment, imposing a twelve-year term on the first-degree offense of aggravated sexual assault. Pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, defendant's sentence is subject to an 85% period of parole ineligibility, followed by five years of parole supervision upon his release.
We need not dwell at length upon defendant's claim of excessiveness, as we are satisfied that the judge fairly weighed the pertinent sentencing factors. The aggravating factors included, among other things, the victim's young age, her special vulnerability to defendant with whom she was related, the need for deterrence, defendant's flight before sentencing, and defendant's prior conviction for his involvement in a Los Angeles bank robbery. In this regard, we reject defendant's claim that the judge impermissibly "double counted" the victim's youth. Although the crime of aggravated sexual assault is indeed elevated to the first degree where the victim is under the age of thirteen, see N.J.S.A. 2C:14-2(a)(1), the victim here, B.D., was far younger than thirteen. Moreover, as an independent sentencing consideration, B.D. was "particularly vulnerable" to defendant, due in part to her "extreme youth." N.J.S.A. 2C:44-1a(2). The judge also duly noted that defendant has not been convicted of any other crimes since the 1985 bank robbery, and the judge did not, as defendant contends, underestimate that mitigating factor. See N.J.S.A. 2C:44-1b(7).
In sum, the judge's sentencing findings "are grounded in competent, reasonably credible evidence," reflect the application of "correct legal principles," and yielded a sentence that surely does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
The judgment of conviction and sentence are affirmed in all respects.