On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-07-0929.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Wefing, Parker and Lyons.
Defendant Kevin M. Whittington appeals from a judgment of conviction entered on June 18, 2004 after a jury found him guilty of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to a term of ten years and subjected to the requirements of Megan's Law. We affirm.
D.H. alleged that in the summer of 1997, when he was eleven years old, defendant sexually abused him. Defendant was a junior pastor at a church and hosted sleepovers for young boys, inviting them to sleep in his bed. D.H. alleged that while he was sleeping in defendant's bed, defendant made sexual overtures to him and masturbated him through his boxers until he climaxed. The child was embarrassed and insisted that he had wet his pants. Defendant washed the child's underwear and told him that if he ever told anyone about the incident, defendant would say that D.H. "was coming on to him."
D.H. did not report this incident until April 2001, when he and his mother went to the Trenton Police Department. After the report was made, Detective Robin Gittens asked defendant to come to the Trenton Police Department to speak with her. Gittens read defendant his Miranda rights*fn1 and advised him that he was a suspect in an investigation of sexual abuse. Defendant proceeded with the interview, indicating that he had numerous sleepovers with boys who attended the church and allowed them to sleep in his bed. He told Gittens that D.H. wet the bed and awakened defendant by "humping" his buttocks. Gittens did not have defendant sign a statement at the time because he did not make a "full confession." Defendant subsequently retained an attorney and invoked his right to silence.
At trial, defendant's testimony differed from the statement reported by Gittens. Defendant claimed he did not report the incident because he did not want to damage the child's relationship with his mother.
In this appeal, defendant argues:
THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE RIGHTS BY EXCLUDING EVIDENCE REGARDING D.H.'S SEXUAL ORIENTATION. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 10
THE DEFENDANT WAS PREJUDICED BY IMPROPER TESTIMONY BY DETECTIVE GITTENS THAT HE WAS LYING ABOUT THE INCIDENT, THEREBY DENYING HIM A FAIR TRIAL, REQUIRING REVERSAL. (Not Raised Below)
THE PROSECUTOR'S EXAMINATION OF GITTENS, WHICH FOCUSED ON WHY GITTENS DID NOT TAKE A FORMAL STATEMENT FROM DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
Prior to trial, defendant moved to admit evidence regarding D.H.'s knowledge that he was a homosexual at the time of trial, although he was unsure of his sexual orientation at the time of the incident. D.H. was eleven at the time of the incident, fifteen when he reported it and eighteen at the time of trial. Defendant argues that the trial court erred when it excluded this evidence under the rape shield statute, N.J.S.A. 2C:14-7, and claims ...