On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0849.
The opinion of the court was delivered by: Coleman, R. B., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2008
Before Judges Carchman, R. B. Coleman and Sabatino.
Tried before a jury, defendant Sidney Atkins was found guilty of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b (count two); and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a) (count three). At sentencing, the court found that aggravating factors two, three, six, and nine, N.J.S.A. 2C:44-1a(2),(3),(6) and (9), outweighed the non-existing mitigating factors, and the court imposed an aggregate term of nineteen years in State Prison, subject to the No Early Release Act (NERA) requirement that eighty-five percent of the sentence is to be served without eligibility for parole, N.J.S.A. 2C:43-7.2. Additionally, defendant was ordered to register upon his release in compliance with Megan's Law. The court merged counts two and three into count one for sentencing purposes.
After carefully reviewing the record in light of the contentions advanced on appeal, we conclude that reversible error occurred with respect to rulings concerning defendant's investigator, who was ordered to produce the notes of her interview with S.M., and whom the State was permitted to utilize as a rebuttal witness. Consequently, we remand for a new trial.
The proofs at trial reveal that in March 2004, defendant's aunt, E.F., was the matriarch of a large extended family. She lived in a single-family home in Union County with her two foster children, S.M., a six-year-old female, and T.M., a four-year-old male.*fn1 E.F.'s home has served as a central hub and refuge for various family members who have lived there for varying periods of time. Also residing with E.F. in 2004 was her niece, W.M., and W.M.'s three children. Defendant, known to the family as "Junior," had lived with E.F. on and off over many years, but he had, by 2004, established a separate residence. He was, however, a regular visitor at E.F.'s house, and he helped with household chores, such as child care and maintenance.
In the early evening on March 10, 2004, E.F. received a telephone call from her daughter, R.W., informing her of an emergency concerning a relative who was a resident of the nursing home where R.W. was employed. E.F. asked her niece, W.M., to watch the children while she went to the nursing home. While the five children watched television in S.M.'s room, W.M. watched television in T.M.'s room, with the door kept ajar so she could hear the children. Shortly after E.F. left the house, defendant arrived. W.M. greeted defendant downstairs and told him of E.F.'s whereabouts. She then returned to watching television upstairs. At one point she saw defendant exiting the attic and at another point she asked him to fix a curtain in S.M.'s room. Defendant also left the home sometime during the evening to buy candy for the children. By the time E.F. returned home around 8:30 p.m., defendant had left the house again.
Upon her return, E.F. sent her two foster children upstairs to bathe while she made them dinner. From the bathtub, S.M. called out to E.F. and told her that her "pee-pee" was burning. E.F. wrapped S.M. in a towel, sat her on her bed and questioned the girl to determine why her private parts were burning. E.F. then examined S.M.'s genitals and observed that there was redness inside of her vagina. While E.F. was questioning and examining S.M., E.F. heard someone pacing in the hallway outside her bedroom door. W.M. testified that defendant, who had returned to the house, was the person pacing and he seemed "nervous." E.F. then instructed S.M. to go downstairs and eat dinner with her brother.
After her two foster children had finished eating, E.F. took S.M. back upstairs and resumed her questioning. At this point, S.M. told E.F. that "Junior did it." S.M. demonstrated what she meant by moving her hips back and forth in a humping motion. E.F. then awakened W.M. and began calling relatives at approximately 1:30 a.m. W.M. testified that she, too, examined S.M.'s genitals and that the child's vagina looked red, irritated and discolored. E.F.'s granddaughter, O.A., arrived at the house after having spoken to E.F. on the telephone. E.F. showed O.A. the panties S.M. had been wearing before her bath; they had "brightish looking stains" on them. O.A. also examined S.M.'s vagina and testified that it appeared red and did not look normal. When asked, S.M. told both W.M. and O.A. that "Junior did it," and demonstrated with her hips a bouncing upand-down motion.
S.M. told E.F. the following events occurred: she was sitting on her bed watching television while the other children were downstairs watching television in the living room. W.M. was watching television in T.M.'s room. Defendant came into S.M.'s room, closed her door, and sat on her bed. Defendant took S.M.'s clothes off. He then got on top of S.M. and put his "weenie" in her "pee-pee," moving it all around (back and forth). S.M. told defendant to stop, but he kept going. Defendant also put his hands in her pee-pee. He did not make any noises. S.M. did not yell.
On O.A.'s advice, E.F. called the police. When the police arrived, they confiscated the bed linens and two pairs of panties belonging to S.M. These items were later sent to the State Police Laboratory for forensic testing. The panties that S.M. had been wearing before her bath revealed evidence of human blood and amylase, a bodily fluid; however, the only DNA chemically detected was female and it matched S.M.'s control sample.
The police transported E.F. and S.M. to the hospital for a medical examination of S.M. At approximately 3:26 a.m., Dr. Euton Laing examined S.M., found redness on her inner thighs, but made no other conclusive findings. Around 5:00 a.m., E.F. and S.M. were taken to the Child Advocacy Center, a division of the Union County Prosecutor's Office. There, they met with Detective Joseph Genna, who conducted a videotaped interview of S.M. and took a sworn statement from E.F. Genna also photographed bruises on S.M.'s thighs.
E.F. and S.M. were next taken to the Dorothy B. Hersh Regional Child Protection Center where S.M. was examined by Dr. Linda Shaw. Dr. Shaw found a discolored area on S.M.'s hymen that was lighter in color and she concluded it was possibly caused by some sort of recent trauma, and may have been the sight of bleeding twelve to twenty-four hours earlier. Dr. Shaw observed no bruising or lacerations on S.M., but did determine that S.M.'s physical condition could be consistent with S.M.'s account of the alleged sexual abuse.
Meanwhile, defendant returned to E.F.'s home the next morning, March 11, 2004, and W.M. refused to let him in. She told defendant that E.F. had taken S.M. to the hospital because of what he had done to her. Defendant was very upset by this accusation.
Later that day, around 6:00 p.m., Sergeant Larry Brown, Jr. accompanied by three officers from his unit, two investigators from the prosecutor's office, and two other uniformed police officers, went to defendant's apartment with a warrant for defendant's arrest. Defendant would not answer his door, so the officers kicked it in. Defendant tried to flee and then offered resistance before being tackled. He was taken to police headquarters and processed.
Later that same day, March 11, 2004, S.M. told E.F. and R.W. that defendant had not abused her. R.W. reported this to the prosecutor's office. When Sergeant Genna of the prosecutor's office questioned S.M. about her recantation, S.M. said that she had lied to E.F. and R.W. and that her original story of what happened was true. On May 26, 2004, S.M. also told Autumn Gerena, an investigator at the defense attorney's office, that her recantation had been a lie and that her original account of the abuse ...