On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. 70-98, Indictment No. S-609-98.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, S.L. Reisner and Gilroy.
The novel issue in this appeal from the Law Division's denial of a post-conviction relief (PCR) petition is whether the Supreme Court's decision in State v. P.H., 178 N.J. 378 (2004), that a jury may consider the timing of a victim's disclosure of sexual abuse in assessing credibility, is to be given complete retroactivity to encompass cases on collateral review, where all avenues of direct appeal have been exhausted. For the following reasons, we hold the rule of P.H., which disapproved the contrary holding of State v. Bethune, 121 N.J. 137 (1990), is to be afforded pipeline retroactivity only.
Following a trial by jury, defendant J.A. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). The victim was A.F., his nephew, who was between seven- and nine-years old when the sexual abuse took place and fourteen-years old when he testified. The proofs against defendant consisted not only of the charges made against him by the victim, who testified that sometime between 1992 and 1994, defendant sodomized him in a bedroom of his aunt's home, but also defendant's own incriminating statements to the police several years later, after A.F., for the first time, accused his uncle of molesting him.
At the time of the rape, A.F. did not tell anyone what had happened because he was scared. Then several years later, on January 3, 1998, while eating dinner with his family and discussing an evening television news story about a child sexual assault that evidently made him confront the memory of his uncle molesting him, A.F., who was then twelve years old, suddenly began crying. When asked what was the matter, A.F. said defendant had "molested" him. His mother and stepfather immediately took A.F. to the Bogota police station, where he gave a statement. Two days later, on January 5, 1998, A.F. gave a sworn statement to Sergeant Haviland, an investigator from the Bergen County Prosecutor's Office, to the same effect as his later trial testimony.
After confronted by police with A.F.'s accusation and informed of his Miranda*fn1 rights, defendant, appearing to know specifically what he was alleged to have done, stated, "I just want to get it exact. He said I screwed him in the ass." Haviland confirmed that this was the substance of A.F.'s allegation.
During the subsequent two-hour interview, defendant initially denied the charge, but then told officers that he used to drink to the point of blacking out and that perhaps something happened when he was drunk that he could not remember. Later, defendant recalled an incident from "years before" when he had once entered the bathroom to urinate while A.F. was using the toilet and that, as A.F. got up, his rear end accidentally brushed against defendant's penis. Shortly thereafter, however, defendant admitted to Haviland that he was not telling the truth. Eventually, defendant told the "truth," that approximately three years earlier, he entered the bathroom while A.F. was showering. When A.F. stepped out of the shower, defendant touched A.F.'s butt cheeks with his penis "to see if [A.F.] liked it." Defendant claimed nothing was said between the two and that he intended to "screw" A.F., but that he heard his wife approaching and quickly left the bathroom.
During his ensuing stenographic statement, defendant altered his story yet again, still conceding that he rubbed his penis against A.F.'s buttocks, but denying that he intended to "screw" A.F. At the conclusion of the statement, when Haviland confronted him on his changed story, defendant apologized and stated he would now tell the truth. In an addendum to defendant's statement, he conceded that he indeed intended to "screw" A.F., but he stopped due to his wife's arrival.
At trial, however, defendant denied the charge as well as the truth of his earlier admissions to the police. At the conclusion of testimony, defendant requested a jury charge permitting the jury to consider the prolonged period of time between the alleged incident and A.F.'s disclosure. The trial judge denied defendant's request and charged the jury pursuant to State v. Bethune, 121 N.J. 137 (1990), as follows:
You are instructed that a child may not complain or tell anyone of sexual abuse for a myriad of reasons, including fear, ignorance, or confusion.
You therefore, may not consider the child's failure to complain as evidence weighing against the credibility of the child because silence is one of the many ways a child may respond to sexual abuse.
Evidently crediting the State's proofs, the jury found defendant guilty as charged. Defendant was sentenced to twelve years imprisonment, and appropriate statutory penalties were also imposed. The trial judge classified defendant as an offender pursuant to Megan's Law, N.J.S.A. 2C:7-2(b)(1), and imposed community notification for life.
On appeal, defendant argued, among other things, that the trial judge erred in failing to charge the jury that it was permitted to infer from the length of A.F.'s delay that his allegation was fabricated. We affirmed defendant's conviction and sentence, State v. J.A., No. A-2515-00T3 (App. Div. June 13, 2002) (slip op. at 20), specifically upholding the trial judge's decision not to charge the jury as requested by defendant:
[T]he trial judge simply instructed, consistent with Bethune, supra, that the jury "may not consider the child's failure to complain as evidence weighing against the credibility of the child." See [121 N.J.] at 148-49; State v. Hill, 121 N.J. 150, 166 (1990). To have supplemented the instruction, as defendant suggests, with the added admonition to infer from the delay that the accusation was fabricated would nullify the very purpose for the charge in the first instance and defeat the protections afforded by Bethune and Hill. [J.A., supra, at 20.]
Thereafter, on February 5, 2004, the Supreme Court decided State v. P.H., 178 N.J. 378 (2004), which "clarified" Bethune and held that a jury may consider the timing of a victim's disclosure of sexual abuse in assessing credibility. P.H., supra, 178 N.J. at 397.*fn2 Defendant then filed the instant PCR petition on February 15, 2005, arguing that P.H. should be given complete retroactive effect. The PCR judge, who also presided over defendant's trial, denied the petition, both procedurally and on the merits. The judge held that defendant was barred from raising the issue collaterally because it had already been adjudicated on direct appeal, Rule ...