January 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS ZOWASKY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1179-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 10, 2008
Before Judges Carchman and Simonelli.
A jury convicted defendant Thomas Zowasky of five counts of first-degree aggravated sexual assault, one count of second-degree sexual assault, and one count of endangering the welfare of a child. The conviction stemmed from defendant's sexual assault of S.P., a 12-year-old girl he had befriended. Defendant received three consecutive fifteen-year terms of imprisonment, two concurrent fifteen-year terms of imprisonment, and two concurrent five-year terms of imprisonment, all of which were subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals his conviction and sentence.
Because of prejudicial legal errors committed during the trial, including the improper introduction of polygraph evidence, we are constrained to reverse defendant's conviction and remand for a new trial. We limit our review to a determination of whether introduction of the polygraph evidence, and the submission of a transcript of the victim's trial testimony to the jury, constitute reversible error. Although not raised on appeal, we also address whether reversible error occurred when the jury had an unrestricted private review of defendant's videotaped pretrial statement without any precautionary measures.*fn1
Defendant did not raise these issues below. Thus, we consider them under the plain error standard of review. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, we "must disregard any error unless it is'clearly capable of producing an unjust result.' Reversal of defendant's conviction is required only if there was error'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004)); Macon, supra, 57 N.J. at 336; R. 2:10-2.
We summarize the evidence pertinent to this appeal. Defendant was accused of having engaged in a sexual relationship with S.P. from December 2003 to September 2004. During a police investigation, defendant gave a videotape statement to Detective Brian Weisbrot from the Burlington County Prosecutor's Office, Sexual Assault/Child Abuse Unit. Defendant admitted his sexual relationship with S.P. and described the various sexual acts in which they had engaged numerous times, including vaginal intercourse, anal penetration, cunnilingus, fellatio and digital penetration of the vagina.
At trial, S.P. admitted she and defendant had a sexual relationship. She testified about the various sexual acts in which they had engaged "too many" times, "like a hundred... maybe more."
Defendant also testified at trial, and denied any sexual contact with S.P. He insisted that S.P. was forced to admit that they had sexual intercourse in order to protect her drug-addicted mother, and that she had lied at trial. Defendant also testified that he lied during the videotape statement, that Weisbrot forced him to make the statements in the videotape, and that Weisbrot threatened him with the loss of his children to foster care if he did not cooperate.
Contrary to the State's argument, defendant did not first raise evidence of the polygraph during his direct examination. Rather, the State introduced this evidence at the beginning of its case-in-chief when it entered the videotape into evidence and played it to the jury. At the end of the videotape, the following colloquy occurred:
[WEISBROT]: Okay,  has everything that we spoke about today,  been the truth?
[DEFENDANT]: Yes, it has. I'm gonna take a lie detector test.
[WEISBROT]: Okay. Everything that you, everything that you...
[WEISBROT]: You told [Detective Gabrielle Willits]*fn2 and I has been the, been the truth.
[DEFENDANT]: I'll take a lie detector test.
Also, Weisbrot, the State's witness, testified about the polygraph on direct examination as follows:
[THE PROSECUTOR]: Right at the very end of that interview, sir, the subject of lie detector is introduced. You recollect that?
[WEISBROT]: Yes, I do.
[THE PROSECUTOR]: Can you explain whether that topic had ever come up prior to the introduction on tape?
[WEISBROT]: That conversation that you heard about the lie detector test that [defendant] had mentioned on the tape, that was the first time that lie detector had been brought up during our interview. [Defendant] volunteered that information himself as you heard him say, he indicated he was willing to take a lie detector test.
The jury again heard about the polygraph during defendant's direct examination, when he explained that he wanted to submit to one because everything he said on the videotape was false. However, it was the prosecutor who elicited testimony from defendant that he never took a polygraph. The jury again heard about defendant's offer to take a polygraph when it viewed the videotape during deliberations.
The law could not be clearer about polygraph evidence. "Proof that a defendant in a criminal trial either refused a lie detector test, or offered to submit to one, has been held to be not admissible in evidence." State v. McDavitt, 62 N.J. 36, 43 (1972) (citing State v. Driver, 38 N.J. 255, 260-61 (1962); State v. Peetros, 45 N.J. 540, 545-46 (1965)). The only exception is where the State and the defendant enter into a stipulation to have defendant submit to a polygraph and have the results introduced in evidence. State v. Castagna, 187 N.J. 293, 311 (2006); McDavitt, supra, 62 N.J. at 46; State v. Smith, 142 N.J. Super. 575, 580 (App. Div.), certif. denied, 72 N.J. 465 (1976). It is also well-settled that a prosecutor may not refer to the defendant's failure to submit to a polygraph. See Driver, supra, 38 N.J. at 261.
There was no stipulation regarding the polygraph. Accordingly, the State's improper reference to defendant's offer and failure to take a polygraph was prejudicial and constitutes error clearly capable of producing an unjust result.
Our inquiry does not end here. During deliberations the jury requested a transcript of S.P.'s testimony. The judge gave the jury the transcript.
Jurors are not expected to have "unfailing and unanimous memory of all the testimony they hear in the courtroom." State v. Wolf, 44 N.J. 176, 186 (1965). For this reason, they may request a review of testimony. However, such a review must be by readback of testimony, not by providing a transcript to the jury.
When a jury requests a review of testimony, the trial judge must first ascertain the scope of the request and then, in its discretion, provide a readback of all or part of a witness' testimony. State v. Wilson, 165 N.J. 657, 660 (2000) (internal citations omitted). Because a "readback of testimony is part of the trial and a critical stage of the criminal proceedings," the defendant has the right to be present, and the procedure "must be conducted in open court, on the record, and under the supervision of the presiding judge." State v. Brown, 362 N.J. Super. 180, 182, 189 (App. Div. 2003); see also State v. Wilson, 165 N.J. 657, 662 (2000). Failure to do so constitutes reversible error "without the need for a showing by defendant of specific prejudice." Brown, supra, 362 N.J. Super. at 189 (citing State v. Cuccio, 350 N.J. Super. 248, 265 (App. Div.), certif. denied, 174 N.J. 43 (2002)).
Here, the judge did not ascertain the reason the jury requested S.P.'s transcript or whether there were portions of her testimony about which they were in doubt or disagreement. The judge also gave no readback. Instead, the judge permitted the jury to review S.P.'s transcript unsupervised, off the record, and out of defendant's presence. The reversible error is clear.
We continue our inquiry. During deliberations, the jury asked to view the videotape in private, indicating that they wanted to stop it when necessary, take notes and discuss it amongst themselves. Again, the judge did not inquire about the reason for the request or whether there were portions of defendant's statements in the videotape about which the jurors were in doubt or disagreement. The judge permitted the jury to view the videotape unsupervised, off the record, and out of defendant's presence.
A videotape may be replayed at the jury's request. State v. Michaels, 264 N.J. Super. 579, 643 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994). However, "if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in [Michaels] must apply to the videotaped out-of-court statements." State v. Burr, 195 N.J. 119, 134 (2008). Those precautionary measures are as follows:
[T]he court first should inquire of the jury whether it would be satisfied with a readback of [the] testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means. And, finally, any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require. [Id. at 135.]
Reversible error occurred here, as the judge took none of these precautionary measures.
Permitting the jury to take notes during the videotape replay compounded the error. The record does not indicate compliance with Rule 1:8-8(b), or instructions regarding note-taking. See State v. Jumpp, 261 N.J. Super. 514, 527-28 (App. Div.), certif. denied, 134 N.J. 474 (1993). Where, such as here, defendant's and S.P.'s credibility were squarely at odds, note-taking only of defendant's videotaped statement had the capacity to improperly overemphasize that evidence, thus producing an unjust result. See Brown, supra, 362 N.J. Super. at 185.
We recognize that our ruling may again place S.P., now sixteen-years-old, before her alleged abuser. However, where, as here, "the legal errors complained of are of such magnitude as to prejudice the defendant's rights, or, in their aggregate, have rendered the trial unfair, our fundamental constitutional concepts require the granting of a new trial." State v. Sachs, 69 N.J. Super. 566, 578 (App. Div. 1961) (citing State v. Orecchio, 16 N.J. 125 (1954)). "No matter how seemingly evident the guilt of the accused, he is entitled to a fair trial surrounded by all substantive and procedural safeguards our legal heritage has provided." Sachs, supra, 69 N.J. Super. at 578. We are convinced that the trial errors here possessed a clear capacity to preclude defendant from a fair trial.
In light of our ruling, we need not address defendant's sentence.
Reversed and remanded for a new trial.