August 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSELITO TINEO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-10-1075; 05-11-1223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 22, 2009
Before Judges Cuff, Fisher and Baxter.
A jury found defendant guilty of three offenses: first degree aggravated sexual assault, second degree sexual assault, and second degree endangering the welfare of a child. The victim was the daughter of defendant's paramour. After her initial disclosures, the victim recanted. The trial judge allowed the State to call defendant's initially-retained attorney to explain the circumstances of a recorded interview with the victim at her home. We hold that the trial judge did not err in allowing the State to call defendant's initial attorney as a witness, and that a series of questions posed by the State to the victim, the initially-retained attorney, and the private investigator did not compromise the attorney-client privilege.
Between 1998 and 2001, Anna*fn1 lived in a series of apartments with her mother, her brother, and defendant. At times, defendant's father and two sons lived with them. When defendant's wife arrived from the Dominican Republic, defendant lived with her and their sons but maintained his romantic relationship with Anna's mother. During this period of time, Anna was between five and eleven years old.
In mid-June 2003, Anna disclosed to her mother that defendant had sexually abused her over the course of two years. She informed her mother that defendant touched her, performed oral sex and had her perform oral sex, and had her watch a pornographic movie. All of these acts occurred while her mother worked, her brother was visiting his father, and defendant was watching her in her mother's absence. Anna explained that she did not inform her mother earlier because defendant had told her that if she told her mother or anyone else, her mother would be incarcerated and she would not see her brother ever again. Anna was between nine and eleven years old when defendant sexually assaulted her.
The day following the disclosure, Anna's mother took her to the prosecutor's office. Anna gave a statement, she received a medical examination, and the Division of Youth and Family Services (DYFS) commenced an investigation. Over the next six weeks, her home was in tumult. Her mother cried all of the time. She was overwhelmed by the realization that defendant had assaulted her daughter, that her daughter had been a sexual assault victim, and that she might lose custody of her daughter. At the end of July 2003, Anna told her mother that her accusation was false. At trial she testified that she just wanted to stop feeling anxious and to stop her mother's crying.
Anna's mother called defendant the next day. He, in turn called his attorney and arranged for Anna and her mother to talk to his attorney. In August, defendant drove Anna and her mother to the office of his attorney, Rodrigo Sanchez. When they arrived, Sanchez had arranged for two attorneys with whom he shared space to speak to Anna. They did. Neither Sanchez nor defendant were present at this interview. Defendant drove Anna and her mother home after the interview.
The attorneys advised Sanchez that Anna informed them that her accusations were not true. Neither attorney took notes of this interview nor made a videotape or tape recording of the interview. Therefore, Sanchez arranged for a private investigator to meet him at Anna's home to conduct an interview with the girl.
On August 6 or 7, Sanchez arrived at Anna's home before Maria Palumbo, the private investigator. Initially, Sanchez waited for her on the porch but then entered the house. Anna's mother escorted him into a living room where he sat with Anna and her mother while they awaited Palumbo's arrival. Sanchez admitted he was alone in the living room with Anna for a matter of minutes. According to Sanchez, he asked Anna's mother for a glass of water, she left the room and returned in minutes with the water. Anna testified that she was alone with Sanchez for almost an hour.
According to Anna, Sanchez told her during this time that defendant would go to jail for twenty years and that defendant missed her, loved her, did not want to go away, and was sorry.
The questions posed by the prosecutor and Anna's responses follow:
Q: And when he talked to you alone, did he tell you anything?
Q: What did he tell you?
A: He told me -- he ask me if I still love [defendant].
Q: What did you tell him?
A: I told him yes.
Q: Then what happened?
A: Then he told me that if I don't want to see him go away, to tell the prosecutor I was lying and that everything was just made up.
Q: Did he tell you what would happen to [defendant] if you said he touched you?
Q: What did he tell you?
A: He told me that [defendant] would go to jail.
Q: Did he tell you for how long?
A: Yes, he told me for 20 years.
Q: Did he tell you anything else about [defendant] and how [defendant] felt about it?
A: Yes, he told me that he will miss me a lot, that he loved me, he don't want to go away.
Q: Did he tell you whether or not [defendant] was sorry?
At trial, the prosecutor posed a similar set of questions to Sanchez but he denied ever communicating any information to Anna. The questions posed by the prosecutor and Sanchez's responses are as follows:
Q: Now, your conversations that you had with the child, did you discuss with the child the defendant going to jail?
A: No, not at all.
Q: Did you discuss with the mother the defendant going to jail if the child said what he did to her?
A: Not at all.
Q: Did you discuss with the child the fact that the defendant was sorry and was crying?
A: Excuse me?
Q: Did you discuss with the child the fact that the defendant was sorry and was crying?
A: Not at all.
Sanchez also testified the private investigator conducted the entire interview and that he posed no questions. He further testified he and the investigator left together and he did not return to Anna's house. Palumbo, however, testified that Sanchez participated in the interview, including posing questions to Anna. The investigator also testified that she and Sanchez left the house together but Sanchez returned to the house after they parted.
After Anna recanted and provided the interview to Sanchez and the private investigator, her mother notified the prosecutor's detective. A second videotaped interview occurred. In this second interview with Detective Peter Klaskin, Anna withdrew her recantation and reiterated her initial accusations. During her summation, the prosecutor commented about the second videotaped interview with the detective as follows:
Yes, in the video [Anna] is a little, to use defense words, all over the place. It makes sense why. She just met with a man who was pappi's lawyer, that man told her that pappi is going to go to jail for 20 years, that man told her alone, without her mother present, that pappi is sorry for what he did, that he was crying, asked if you loved him.
The jury found defendant guilty of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count One); second degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three) [Indictment Number 03-10-1075]. Prior to sentencing, defendant pled guilty to third degree witness tampering, N.J.S.A. 2C:28-5a(1) [Indictment No. 05-11-1223]. Judge Triarsi merged Counts Two and Three with Count One and imposed a sixteen-year term of imprisonment subject to an 85% parole ineligibility term required by the No Early Release Act.*fn2
Defendant is also subject to the terms of Megan's Law.*fn3 The judge also imposed a consecutive three-year term of imprisonment for witness tampering.
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE'S ERRONEOUS DECISION COMPELLING TINEO'S FORMER ATTORNEY TO TESTIFY AGAINST TINEO OPENED THE DOOR TO A SERIES OF PROSECUTORIAL IMPROPRIETIES, THE COMBINATION OF WHICH OBLITERATED TINEO'S RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. It Was Improper For The Trial Judge To Compel Tineo's Former Attorney To Testify Against Tineo.
B. Even If It Was Proper For The State To Call Sanchez For The Limited Purpose Of Questioning Him About The Private Conversation He Allegedly Had With [Anna], The Prosecutor Far Exceeded The Permissible Scope Of Examination When She Bombarded Sanchez With Questions About Other Topics.
C. It Was Improper For The Prosecutor To Call Maria Palumbo As a Witness For The Sole Purpose Of Impeaching Sanchez On Collateral Matters.
D. It Was Grossly Improper For The Prosecutor To Question Both [Anna] And Sanchez About The Implied Admission of Guilt That [Anna] Claimed Sanchez Said Tineo Had Made.
THE TRIAL JUDGE ERRED IN BARRING TINEO FROM INTRODUCING EVIDENCE THAT [ANNA] HAD MADE A PRIOR ACCUSATION OF A SEXUAL NATURE AGAINST HER FORMER BABYSITTER'S BOYFRIEND WHERE, REGARDLESS OF ITS TRUTH, THE PRIOR ACCUSATION WAS RELEVANT TO ESTABLISH [ANNA'S] KNOWLEDGE AND EXPECTATION AS TO WHAT OCCURS WHEN A CHILD LODGES AN ACCUSATION OF A SEXUAL NATURE AGAINST AN ADULT. IN THE ALTERNATIVE, A REMAND IS REQUIRED FOR THE TRIAL JUDGE TO DETERMINE WHETHER THE EVIDENCE WAS ADMISSIBLE UNDER STATE V. GUENTHER AS A PRIOR FALSE ACCUSATION.
Defendant argues that the trial judge should not have allowed the State to call Sanchez, defendant's first attorney, as a witness. He contends the sole purpose of using Sanchez as a witness was to portray defendant's attorney as unscrupulous and to sully defendant by association. Defendant also argues that questions posed by the prosecutor invaded the attorney-client privilege and questions posed to Anna and comments in the prosecutor's summation underscored that invasion. We disagree.
Prior to the commencement of trial, defendant argued the State should not be permitted to present testimony from Sanchez because the interviews constituted work product. The State argued that the circumstances preceding the interview with the private investigator influenced Anna's statement and affected its credibility. Moreover, the discussion between Sanchez and the child could not be considered work product. The judge agreed. The judge stated:
The child has advised the State of that conversation and has referenced the fact that she heard from that gentleman, the potential exposure of the defendant being 20 years, and I'm going to paraphrase it to the extent that I can, and that do you really want to put him in jail for 20 years. The jury can conclude that was a subtle method of pressuring the child to change the story....
[Defendant] has a Fifth Amendment right but no right to assert privileged communication. This was not between he and his client at all. This was him interviewing the main witness in the case. Therefore, it is quite clear that everyone knew [Anna] would testify and that the result of the interview would be available for [Sanchez] to use in cross-examination, and that means [Sanchez] had to tell the State what the results would have been anyway.
On the other hand, Judge Triarsi ruled that Sanchez could not be called unless he received immunity because Sanchez had stated that he intended to invoke his right against self-incrimination. Sanchez received a grant of immunity and the State presented him as a witness.
Testimony from an attorney is appropriate and perhaps necessary when the attorney is a fact witness. State v. Funicello, 49 N.J. 553, 585 (1967), cert. denied, 390 U.S. 911, 88 S.Ct. 837, 19 L.Ed. 2d 882 (1968). See also Johnston Dev. Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J. 1990). In Funicello, supra, a central issue in the case was whether the oral and written statements given by the defendant were voluntary. 49 N.J. at 557-58. The defendant testified that he signed a written statement only after three hours of beating, id. at 577, and his father, mother, and sister testified that he had two black eyes and swelling about his face when he appeared before a municipal magistrate in the company of an attorney retained by his family, id. at 579.
The defendant did not produce this attorney at trial in support of his contention that he had been beaten by police and the signs of a beating were obvious. Id. at 584-85. In his summation, the prosecutor argued that the jury could infer that this attorney observed the physical condition of the defendant and was not called as a witness by the State or the defendant because he would not support the defendant's contention. Id. at 585. Although the Court held that the trial judge properly sustained the defendant's objection to this comment, the Court also held that the defendant's initial attorney would have been a competent witness to the defendant's physical condition and the attorney-client privilege would not have prevented his testimony. Ibid. As stated by Justice Francis,
Obviously he would have been a competent witness as to defendant's physical appearance. The attorney-client privilege would not have prevented it, had he been produced by the State; certainly the privilege would not have been a bar, had defendant offered him. [Ibid.]
Here, as in Funicello, Sanchez became a fact witness when he attended the interview between Anna and the private investigator and spoke to the child for some disputed period of time not in the presence of her mother or the investigator. When there is a logical relevance between the evidence offered and a material issue in the case, whether the testimony will be received becomes a matter vested in the discretion of the trial judge. State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), certif. denied, 103 N.J. 465, 466 (1986).
The circumstances of the interview were relevant to the issue of the reliability of Anna's alleged recantation. Similarly, the trial judge controls whether evidence will be permitted to supplement and possibly impeach the testimony of another witness. Palumbo was presented by the State to explain the circumstances of the statement she obtained from Anna. Her testimony varied in some respects from that offered by Sanchez, and to the extent it did, it raised questions concerning his credibility. Impeachment of Sanchez, however, was not the primary purpose of her testimony and we discern no mistaken exercise of discretion by the trial judge.
Moreover, having obtained a statement from the victim and the principal State witness which would be used to impeach her, Sanchez was required to notify the prosecutor of the statement and provide to the prosecutor a copy of the statement. R. 3:13-3(d)(4). As such, the statement was not privileged.
Defendant also argues that it was "grossly improper" for the prosecutor to be allowed to question Sanchez about his discussion with Anna because the questions, particularly the question about defendant "being sorry," referred to communications between Sanchez and defendant, his client, and contained an admission of guilt. We disagree.
A communication between an attorney and his client is privileged when the statement is made in conjunction with obtaining legal advice and with the expectation that it remain confidential. Fellerman v. Bradley, 99 N.J. 493, 499 (1985). The rationale of the privilege is to promote free and full disclosure from the client to the attorney. Id. at 502. The privilege does not attach to a communication meant to be shared with others.
Defendant focuses on the "pappi is sorry" question. He argues that the question assumed a communication between defendant and his former attorney and an admission of guilt by him. However, the privilege has never been extended to statements made by a defendant to his attorney that were intended to be communicated to a third party. In re Gonnella, 238 N.J. Super. 509, 514 (Law Div. 1989). On its face, the question suggests a conversation between defendant and his attorney and the intention that information obtained during the conversation be transmitted to others.
We have quoted extensively from the questions posed by the prosecutor to Anna and to Sanchez to allow any implied information contained in those questions to be considered in context. Clearly, there was more than a suggestion that defendant singly and through his former attorney tried to manipulate the young victim. If Sanchez participated in that manipulation, willingly or unwittingly, any discussion the former attorney and defendant had is not subject to the privilege. Moreover, the context demonstrates that any expression of remorse was intended to be communicated to Anna. As such, defendant cannot invoke the veil of confidentiality.
We also reject the contention that this line of questioning was designed to disparage the former defense attorney and by implication defendant. Once Anna recanted and once the spectre of witness manipulation entered the case, the circumstances of the interview and the nature of any conversation between defendant's former attorney and Anna were clearly relevant. This is wholly different than the suggestion that a defense is disingenuous or that defense counsel is insincere or can be expected to dissemble because that is what you must expect from an attorney in an effort to fashion a defense. See, e.g., State v. Frost, 158 N.J. 76, 86 (1999). In short, considered in context and within the entirety of the record, the questions posed to Sanchez do not transgress the attorney-client privilege.
Defendant also sought to question Anna about an allegation made by her in June 2000 against the boyfriend of her former babysitter. Anna was seven years old at the time of the alleged allegations. The trial judge barred the inquiry. Defendant argued at trial that the alleged prior false accusation was relevant to her knowledge of sexually explicit language, her knowledge of sexual acts, and her credibility. The trial judge ruled that the prior accusation did not contain sexually explicit language, the sexual conduct in the 2000 accusation was different than the 2003 accusation against defendant, and there was no evidence that the prior accusation was false. On appeal, defendant argues that the inquiry was relevant to Anna's "knowledge and expectation as to what occurs when a child lodges an accusation of a sexual nature against an adult." He seeks a new trial or a remand for a hearing to determine whether the prior accusation was false and, if so, whether the fact of the prior false accusation should have been admitted at trial.
A defendant who seeks to impeach the credibility of a victim with an alleged prior false accusation against another must demonstrate by a preponderance of the evidence that the prior accusation was made and that it was false. State v. Guenther, 181 N.J. 129, 157 (2004). The Court reasoned that this standard "strikes the right balance, placing an initial burden on the defendant to justify the use of such evidence while not setting an exceedingly high threshold for its admission." Ibid. Here, defendant presented no evidence that the prior accusation was false other than the absence of a prosecution. There are a host of reasons why a prosecutor may decline to bring charges. Certainly, the lack of prosecution provides no probative evidence of the truth or falsity of the prior allegation. The trial judge appropriately barred examination of the victim regarding the 2000 prior allegation.