On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1762.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Defendant James H. Wright, Jr., appeals from a final judgment of conviction. Tried to a jury, he was convicted of lewdness, N.J.S.A. 2C:14-4b(1), and endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court sentenced defendant to probation for a term of five years and imposed the required fines, penalties, assessments, the obligation to register in accordance with N.J.S.A. 2C:7-2, and community supervision pursuant to N.J.S.A. 2C:43-6.4.
Defendant's convictions are based on evidence that he exposed himself to R.P. in a Wal-Mart store in Old Bridge on February 3, 2004. R.P. was nine years old at the time of the incident, and defendant was seventy-three.
R.P. gave the jurors the following account. R.P., her mother, B.J.P., and R.P.'s younger sister were shopping for a gift. At B.J.P.'s direction, R.P. walked to a display rack about fifteen to twenty feet from her mother to put a CD she had selected back where she had found it. When R.P. reached the display, she heard a whistle and a stomp and turned to look. A man was standing about four feet from her, and she saw his "wiener." His slacks*fn1 had no zipper or flap, just a "big hole." The man's jacket was hanging down from his hands, and he lifted his shirt up over his face. To R.P., the man's penis looked like a pig's snout, light and dark pink. She was "startled" and "nervous" and went to her mother.
B.J.P. testified that she had not heard the whistle and stomp or seen the man expose himself or a hole in his pants.
But when R.P. returned to her, B.J.P. noticed that her daughter looked "startled" and "shocked" and asked R.P. what was wrong.
B.J.P. remembered R.P. responding by pointing "to her privates." R.P. recalled saying "he showed me his" while she pointed to her crotch.
B.J.P. saw a man walking away. She yelled to him and asked whether he had exposed himself to her daughter. He turned and said, "what," but offered no further response and went to another aisle. B.J.P. repeated her accusation and called the man a "pig." She followed the man but returned to her children because they were crying and calling for her. R.P. then told her mother the man had lifted up his shirt.
Skip Parker, a Wal-Mart employee working at the time of the incident, provided the information that led to defendant's arrest. Parker did not see what happened, but he heard B.J.P., stopped defendant and asked him to wait for the police. According to Parker, defendant appeared nervous and jittery. He told Parker he would not wait. Parker watched defendant as he left and re-entered the store several times and followed him when he walked into the parking lot. Although Parker lost sight of defendant when he went behind a SUV near the far-end of the lot, he later spotted defendant "crouched down" and running toward the front of the lot. He saw defendant jump into a car that was parked near the door, back out of the parking space and put the car in drive. Defendant "hit it so hard" that Parker thought "the transmission was going to drop out," but Parker was able to get the license plate number.
Detective Crocco of the Old Bridge police arrested defendant at his home the following day. The detective told defendant he was under arrest "for [an] incident that happened at the Wal-Mart." Defendant replied, "I didn't expose myself to that little girl or her mother in that store." Crocco asked defendant why the child would make something like that up. Defendant responded, "What I think happened was as I walked by her I was adjusting my crotch and maybe she saw something."
Defendant, a former police officer, asked the detective if he would make the charge a "DP," disorderly persons offense, if he told the truth. When the detective said he did not have that authority, defendant told him he had nothing else to say.
Officer Ford of the Old Bridge Police Department interviewed R.P. and her mother before they left Wal-Mart on February 3. At trial, Officer Ford testified that R.P. told him that she had heard a whistle and a stomp and saw a man with his penis out of his pants and had told her mother. R.P. used a child-like word for penis that the officer could not recall.
R.P. did not tell him about a hole in the man's pants.
Officer Ford also talked to B.J.P., who was present during his interview of R.P. He did not remember whether the child or her mother spoke first.
During the course of the interview, Officer Ford learned that R.P. was a student in his wife's third-grade class. Out of concern about how R.P. would behave in school the next day, Officer Ford stopped at home to tell his wife that R.P. had reported that a man exposed himself to her.
Later that night, B.J.P. spoke to R.P. as she put her to bed. Worried that the child would not sleep well, she asked R.P. to tell her about what she had seen. R.P. told her again about hearing the whistle and the stomp. She said the man lifted his shirt up, and she saw what looked to her like a "pig snout" hanging out. B.J.P. told R.P. that she was not the only one to whom something like this had happened and told her that a friend of hers had a similar experience and the man was arrested.
R.P. went to school the next day. The defense called her teacher, Mrs. Ford, to testify at trial. According to Mrs. Ford, R.P. was not her usual self that day. R.P. told Mrs. Ford that she had met her husband the night before, which Mrs. Ford knew because her husband had told her that R.P. was involved in an incident at Wal-Mart. Mrs. Ford said that she did not know R.P. was going to give the police a statement later that day and did not discuss the incident with R.P. She acknowledged that she told R.P. "to tell truth" and "just say what happened." Although Mrs. Ford could not remember everything she had said to the child, she did not believe it would be accurate to say that she helped R.P. prepare for her police interview.
After school, R.P. met with Detective Crocco of the Old Bridge Police Department. The interview was video-recorded, and it was shown to the jurors. At the outset of the interview, R.P. volunteered that she "prepared" in school with Mrs. Ford. She said, "we went over it a lot, so I remember a lot." Detective Crocco did not inquire about R.P.'s discussions with her teacher.
R.P. told the detective that the man had pulled his shirt up and she had not seen his face or hair, although she knew his hair was grey because her mother had told her that it was. She said she heard whistling and a "big" stomp and did not know if "his peesh was real or not." It was "hanging out" of a big hole, "not ripped," in his "jeans." Her eyes "started to blur," and it looked like a "pig's snout."
R.P. said, "I couldn't calm down. I had so much pressure and kept on thinking about it, thinking about it. Well, I am thinking about it a lot - I keep on seeing pictures in my head of what happened and stuff - all the same." At the conclusion of the interview, R.P. said, "Thank God I didn't lie. I hope I didn't."
The jurors also heard the testimony of A.R. When A.R. was seven years old, she had complained about defendant's conduct in 1994 and 1995. At that time, A.R.'s mother worked for defendant. A.R. went to the office with her mother when she did not go to school. On occasion, defendant took A.R. to his home. She either sat in the front seat of his car next to defendant or on his lap while they traveled to his house. When sitting next to defendant, A.R. saw his penis exposed. She remembered there being a "hole in his pants" but was not sure "if it was an actual hole or a rip." This happened more than once. In addition, at defendant's home, A.R. saw defendant lying on his bed with no pants on.
A.R.'s mother also testified about working for defendant and allowing A.R. to go with him to his home. She said she resigned from the job and denied ever having an argument with defendant. Defendant did not testify at trial.
Defendant raises the following issues on appeal.
I. THE COURT'S FAILURE TO PROPERLY QUESTION [A JUROR] DURING VOIR DIRE AND THE COURT'S FAILURE TO EXCUSE [A PROSPECTIVE JUROR] FOR CAUSE VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY.
II. DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION AND A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF ...