On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-12-1411.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2007
Before Judges Weissbard, S.L. Reisner and Gilroy.
Defendant A.O. appeals from his conviction for first-degree aggravated sexual assault on a child, C.I., and the sentence of eighteen years imprisonment with a nine-year parole bar.
We reverse the conviction on two grounds. First, we hold that defendant's stipulation as to the admissibility at trial of polygraph test results, which he executed without benefit of counsel, was constitutionally invalid. We disagree with State v. Reyes, 237 N.J. Super. 250 (App. Div. 1989), and in any event we conclude it is no longer good law, following the Supreme Court's decision in State v. Domicz, 188 N.J. 285 (2006). Second, we conclude the trial court should have held a Rule 104 hearing pursuant to State v. Guenther, 181 N.J. 129 (2004), before precluding defendant from presenting evidence about an incident in which C.I., who had accused defendant of molesting her and then recanted, later accused another man of molesting her and then recanted that accusation.
We begin by briefly summarizing the chronology of this case. Defendant was living with his girlfriend, J.I., and her daughter, C.I. Defendant and his family, and J.I.'s family, are all Nigerian immigrants who speak English and Yoruba. On April 27, 2001, C.I. first reported that defendant had molested her several times during the past year. She initially told some friends at school that day and then told a school counselor later in the day. As a result, defendant was called to the Child Advocacy Center for questioning.
When defendant denied all of C.I.'s allegations and asked the police how he could clear his name, he was told that he could take a polygraph test. At this point, defendant had not been arrested and had no attorney. After waiving his Miranda*fn1 rights and being advised by an assistant prosecutor concerning the polygraph stipulation form, defendant signed the form and took a polygraph test. According to the State's expert polygraph examiner, defendant failed the polygraph. He was arrested and charged with aggravated sexual assault.
C.I. subsequently recanted her allegations. Because the Division of Youth and Family Services (DYFS) concluded that the child's family was not being supportive of her, DYFS removed the child from her home and placed her first in a shelter and then with foster parents. While in the shelter, the child accused another man of molesting her, but then recanted her allegation. In December 2002, after the child had been placed with a relative, she reaffirmed her allegations against defendant.
These were the most significant trial events. In the prosecutor's opening statement, he highlighted expected testimony from the State's expert on Child Sexual Assault Accommodation Syndrome (CSAAS). He told the jury that the State's expert would explain why the lack of family support affected recantation. "You will hear from an expert . . . Dr. Susan [Cohen Esquilin]. She will tell you there is this syndrome after children disclose, if they're not supported by family, it is not unusual they recant or withdraw their testimony. Why is that? It's very difficult to make this disclosure and without full family support, the child feels very uncomfortable, the child feels it's their fault that the person has gone away. . . . We're going to study that process, that lack of support." The prosecutor also emphasized the fact that defendant failed the polygraph test.
According to C.I.'s grandmother*fn2, at some point after C.I. reported the incidents, C.I.'s mother was reluctant to have the child examined by a State doctor at the Child Advocacy Center. Therefore, the grandmother insisted that C.I. be examined by a doctor whose offices were located above the grandmother's store.
However, this doctor refused to examine C.I. or to speak to her. The grandmother denied that there were any conversations "about soap" at the doctor's office.
In an effort to show that C.I. was not supported by her family, the State presented testimony from a DYFS worker, who observed C.I.'s grandmother praying over her during a supervised visit on July 27, 2001. According to the DYFS worker, the grandmother placed holy oil on C.I.'s forehead "to take the evil out of her, take the spiritual demons away." The grandmother also said that C.I. was ugly. The worker stopped the visit at that point because she believed it was inappropriate to call the child ugly and "to tell her that she had spiritual demons inside of her." This incident occurred more than two months after the May date on which the child had recanted her accusation.
Over defense objections, and following a Rule 104 hearing, the State also presented fresh complaint evidence in the form of testimony from one of C.I.'s friends. According to the friend, on April 27, 2001, C.I. told a group of other children on the playground "that her father was abusing her, doing sex to her." The friend told her teacher what C.I. had said. Immediately after this testimony, the trial judge gave the jury a limiting instruction that the fresh complaint evidence "is not evidence that the sexual offense actually occurred or that [C.I.] is credible."
The State also presented evidence from a school social worker who testified that on April 27, 2001, C.I. told her that her stepfather was "harassing her." C.I. then explained that her stepfather "does it." C.I. told the social worker that the last time an incident occurred was during spring break, which was between April 13 and April 20, 2001. A limiting instruction was also given concerning this testimony.
C.I. testified that defendant began living with her family in 1998. In 2001, when she was nine years old, defendant sometimes babysat for C.I. and her younger sister while C.I.'s mother was working a night shift. C.I. described several incidents in which defendant would climb on top of her and rock back and forth with his "private" in her "private." During some of these incidents, she was dressed but could feel what defendant was doing through her clothing. She testified that on her tenth birthday, the defendant raped her. She also testified on direct examination concerning an incident when defendant attempted to have oral sex with her. At this time the lights were on and she observed "dark" "gooie stuff" coming out of defendant's "private." On cross-examination, she testified that during this incident she could not see defendant's "private" because "[i]t was dark."
C.I. admitted that a month after the incident, she recanted her allegations. She explained that she did this because defendant's mother "kept telling me that it didn't happen" and that C.I. "should [t]ell them that it didn't happen." She also testified that in May 2001, her grandmother took her to a doctor, who did not examine her but "told me to take this thing and put in my private part." According to C.I., it was her grandmother's idea to use the "soap" "[s]o that my thing would close." She testified that her grandmother and the doctor were speaking Yoruba.
On cross-examination, C.I. was asked whether she had ever watched the Playboy channel on television with her mother or stepfather. She testified that "when they're watching adult stuff, he would send me to my room and I wouldn't be able to watch . . . that . . . nasty stuff they were doing on TV."
There was no medical evidence to corroborate the child's allegations. When the child was taken to be examined at the Child Protection Center on May 2, 2001, she recanted and told the doctor that she "had lied." Therefore, according to the Center's policies, she was not examined.
Called as the State's witness, Dr. A.N. testified that he refused to examine C.I. because her grandmother told his receptionist that the purpose of the examination was to determine whether she had been raped. He testified that he did not examine C.I. at all or prescribe anything for her. Instead, he recommended that she be examined by a doctor at the Child Advocacy Center. He also testified that he was from Ghana, he did not speak Yoruba, which is a Nigerian language, and he communicated with C.I.'s grandmother briefly and exclusively in English. His testimony contradicted C.I.'s testimony that her grandmother took her to an African doctor who spoke to them in Yoruba and prescribed a soap or cream to be placed in C.I.'s vagina.
C.I.'s mother, J.I., confirmed that in 2000 and 2001 there were times when defendant babysat for C.I. when she went to work. She testified that on April 27, 2001, she was called to C.I.'s school and later went to the Child Advocacy Center with the grandmother. During the drive, the grandmother was yelling at J.I. that her "bastard child" was going to get defendant in trouble and that J.I. should tell the Prosecutor that she knew nothing. J.I. contended that C.I. recanted because her grandmother told her to do so. J.I. also admitted that when C.I. asked her on April 28, 2001, where defendant was, she told her that defendant was "in the cage" because of what C.I. had said. According to J.I., before the three of them went to see the African doctor, the grandmother gave C.I. some aloe lotion to put in her vagina "to make everything small." J.I. admitted that she did not mention this when she gave a statement to the police.
J.I. also admitted telling the police in May 2001 that she thought C.I. was making up the allegations because she was angry at defendant for not letting her watch television. J.I. contended that she herself felt intimidated by the grandmother because the grandmother practiced voodoo, and she had seen a voodoo shrine in the grandmother's house with her picture near it. She also admitted that she had initially supported defendant in his defense; she denied that her change of position had anything to do with the fact that defendant eventually married another woman.
During J.I.'s testimony, the court held a Rule 104 hearing before ruling that defense counsel could not elicit testimony about an alleged conversation that J.I. had with C.I.'s second grade teacher concerning an allegation that C.I. either tried to kiss another student or otherwise was "acting out sexually" at school in some unspecified manner.
Dr. Cohen Esquilin testified about child sexual abuse accommodation syndrome (CSAAS). She testified that it was not a diagnosis. However, the elements of CSAAS help to explain why children who are abused often delay reporting the abuse. She also was asked what is "likely to happen" if the child's family is not supportive when the child does disclose the abuse. She responded that "that's when you get into the fifth stage which is the recantation or retraction." On cross-examination, she confirmed that CSAAS did not address the behavior of children who had not been abused but might have claimed to be abused; the studies underlying the theory of CSAAS were based only on children "who we know have been abused." The judge instructed the jury that they were not to "consider Dr. Cohen's testimony as offering proof [that abuse] actually occurred in this case."
The State then played for the jury videotapes of police interviews of C.I. taken on April 27, 2001, in which she accused defendant, and on May 4, 2001, in which she recanted her accusation.
During the trial, defense counsel sought to obtain information concerning an incident at the children's shelter in the fall of 2001, in which C.I. claimed she had been raped and then recanted the allegation. The State provided the trial judge with DYFS records and police reports concerning the incident for review in camera. After reviewing the videotape and the records, the trial judge concluded that a hearing on relevance was not required. She concluded based on the DYFS records and the Prosecutor's Office records that the allegations were substantiated. However, she did not place any findings on the record concerning why she determined that those agencies' findings were worthy of credence, particularly since the Prosecutor decided not to prosecute the person C.I. accused. The judge also reasoned that the incident at the shelter happened "afterwards" and did not, for example, help to explain "where she learned the sexual behavior" C.I. described with defendant. The judge also concluded that there was nothing helpful to defendant in C.I.'s psychological records, noting that the child did not tell the psychologist a materially different version of the facts in either incident.
We next review the evidence concerning the polygraph. According to a police witness, on April 27, 2001, defendant gave a statement to police in which he denied sexually assaulting C.I. Toward the end of the statement, defendant was asked how he had been treated by the prosecutor's office and the police. Defendant replied that he felt he had been treated "like a liar" because the police believed C.I. He was then asked "Did we tell you that we are only here to seek the truth?" When he responded "Yes," he was then asked "Do you agree to take a stipulated polygraph examination to determine if you're telling the truth?" He responded "Yes." Defendant then met with an assistant prosecutor who spoke with him for about thirty minutes to review a five-page polygraph stipulation, which defendant signed.
In that five-page agreement, which defendant signed without advice of counsel, defendant agreed, among other things, that the results of the polygraph examination "shall be admissible as evidence" in Grand Jury proceedings and at trial; "the polygraph examiner is acknowledged by both parties to be an expert" for purposes of the expert's later trial testimony; that defendant "expressly waives any and all objections to the admissibility of such expert testimony;" that defendant waives "the right to introduce another polygraph expert or any other person, other than the subject himself, in reference to the original ...