On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-650-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court May 17, 2007
Re-argued October 16, 2007
Before Judges Fuentes, Grall and Chambers.
This appeal concerns plaintiff Melissa Phillips's cause of action against her uncle, defendant John Gelpke. In this suit, plaintiff alleges that defendant sexually abused her when she was a young child. The matter was tried before a jury and a verdict was entered in plaintiff's favor, awarding her $750,000 in compensatory damages. On direct appeal, we reversed, holding that plaintiff's "repressed memor[y]" was "a highly complex and controversial subject," requiring expert testimony. Phillips v. Gelpke, 383 N.J. Super. 505, 512 (App. Div. 2006). Because our holding invalidated the jury verdict, we did not address the remaining arguments raised by defendant.
On plaintiff's appeal, the Supreme Court reversed our decision, holding that a lay jury is capable of determining plaintiff's credibility as to how she came to remember the alleged abuse, without expert psychological testimony. Phillips v. Gelpke, 190 N.J. 580, 592-94 (2007). The Supreme Court thus remanded the case for us to address the remaining arguments originally raised by defendant in his direct appeal. Id. at 596.
We now address those arguments. Specifically, defendant argues that: (1) the jury verdict was against the weight of the evidence; (2) the trial court improperly admitted plaintiff's poetry and diary readings, including a critique of these exhibits by plaintiff's treating psychologist; (3) the trial court erred in permitting plaintiff to impeach her own witness; and (4) plaintiff failed to present competent evidence in support of her claims for damages.
After reviewing the record, and in light of prevailing legal standards, we agree with defendant that plaintiff's testimony concerning the poetry and diary entries should have been excluded under N.J.R.E. 803(c)(3) as inadmissible hearsay. We thus conclude that a new trial is needed in this case.
Our conclusion renders moot defendant's argument that the jury verdict was against the weight of the evidence. On remand, the quantum of evidence will necessarily be different, in light of our holding regarding the poetry and diary entries. We find no merit, however, in the remaining arguments raised by defendant.
With respect to the poetry and diary entries, we are satisfied that the admission of this highly inflammatory evidence deprived defendant of his right to a fair trial. The trial court's attempt at counteracting this prejudice, by instructing the jurors to consider this testimony only in the damages phase of their deliberations, was inadequate and ineffective. Even if such evidence had some limited probative value on the question of damages, its overwhelming prejudicial effect compels its exclusion under N.J.R.E. 403. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).
The core facts of this case were described in detail by the Supreme Court in Phillips v. Gelpke, supra, 190 N.J. at 584-89. We will thus limit our factual recitation to those facts necessary to address the issues raised.
I. The Poetry and Diary Entries
The acts of abuse alleged by plaintiff occurred when she was between the ages of three and eight years old. Overruling defense counsel's objection, the trial court permitted plaintiff to read to the jury the following lines of poetry. The actual reading of the first "poem" was preceded by the following exchange between plaintiff and her attorney.
[PLAINTIFF'S COUNSEL]: [D]o you know when you wrote [the poem]?
[PLAINTIFF]: I was either 15 or 16 [years old].
[PLAINTIFF'S COUNSEL]: Had you yet told your mother of the abuse by your Uncle John?
[PLAINTIFF]: Yes, I have.
[PLAINTIFF'S COUNSEL]: You talk in here, you refer to it, you talk about someone being a skeezy, sick man. Do you see that?
[PLAINTIFF'S COUNSEL]: And who are you talking about? Who are you referring to?
[PLAINTIFF'S COUNSEL]: Your Uncle John?
[PLAINTIFF'S COUNSEL]: This poem or entry is about your bulimia, isn't it?
The trial court then directed plaintiff to read the poems to the jury.
Do you ever think upon the past? Well, I do, and all it makes me do is purge and fast. All you are to me is a skeezy, sick man. When I remember you I think of one who - don't you see you took advantage of a little girl? Since you did that to me, if I eat, I have to hurl. It seems to me that you don't think about it, don't even care, because you are so selfish I formed an eating disorder, and that's not fair.
Can't you see that you took my childhood away from me. Now, no matter how much I eat, an ugly bump is all see. [sic] There is nothing you can ever do for me now, I have to get rid of my eating disorder and you, but how? I laughed at you because you need help and won't receive it, while I am now, and I'm sick of all your bull shit.
A girl with a body, a girl a man wanted, he took her body and made it his. She let him have it not knowing any better. He loved to abuse her body, never caring when she would get older the girl would hate that body that he took advantage of. So as the years passed and abuse stopped, she tried to destroy the body he seemed to enjoy. She changed her body so he would not want her anymore.
The following exchange took place immediately after plaintiff finished reading the Second Poem.
[PLAINTIFF'S COUNSEL]: Thank you. And the he you're referring to in that poem?
[PLAINTIFF'S COUNSEL]: Who was it?
Do you want to be me? Of course you do, everyone does. So you can take everything, my looks, my personality, my boyfriend, my friends, my body, my thoughts, my family, my pets, my hurt, my therapy, my fears, my pain, my problems, my feelings. Now you might think no problem, but before you couldn't do it. You don't love me.
What do you want from me? You say nothing, I don't believe you, everyone wants something. So what is it? Fine, don't answer me. Death, did you say? Why do you want me cold with nothing? I know you hate me, but I want and you want my soul, so I'll fight to get better and give my soul to someone else that loves me. You will never have it, so please just leave me alone. And do you think you can control me? But one day you will realize that you can't anymore. So just go away, I don't need you anymore. So stop trying to kill me, because you won't do it, for I'm fighting for my life now. Not yet.
The following exchange took place immediately after plaintiff finished reading the Third Poem.
[PLAINTIFF'S COUNSEL]: Who is the you you're referring to in that?
[PLAINTIFF]: My eating disorder.
[PLAINTIFF'S COUNSEL]: I'm sorry?
[PLAINTIFF]: My eating disorder.
[PLAINTIFF'S COUNSEL]: What's the next one?
Don't rob her innocence away, but she will not stop you, she thinks that you will have her. Unfortunately, you don't give two shits about her. You just do it to get yourself, give yourself power. Do you like this power? Does it feel good to you? She is so little and doesn't know, you stupid son of a bitch, don't hurt her anymore. When I see you do this to her she is just a confused child. You sick - don't touch her and you won't listen to me, of course you won't. Fine, just do it, she does not care because you know it's wrong, just kill that little girl and make her grow up to be a slut.
Plaintiff's counsel then asked plaintiff the following questions:
[PLAINTIFF'S COUNSEL]: Who is the you that you refer to in that piece?
I just got rid of a cell, I'm clean again. Nothing matters when I'm clean. I kill the pain. I have no past that haunts me. There is no little girl in me. I killed her. Do not care, all she is is fat and dirty. But now I am clean and thin. I don't care if she needs me, because I don't need her, I hate her. She was so stupid, she's [sic] just lets people take her and then she eats to get fatter. But now I'm smart and pretty, also ...