On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-10-3959.
The opinion of the court was delivered by: Axelrad, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 7, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Defendant was convicted, after a trial, of multiple counts of first-degree aggravated sexual assault and one count of second-degree endangering the welfare of a minor. In this appeal we consider primarily whether defendant's right to a fair trial was prejudiced by the court charging the jury with intoxication as possibly negating an element of the crime, over defendant's objection. Finding error, we reverse and remand for a new trial.
The jury heard testimony that defendant is the uncle of L.T. and that he gained custody from L.T.'s mother in 1998, when the boy was four years old. In 2004, ten-year-old L.T. disclosed defendant's recurring sexual abuse of him over the preceding six years.
L.T. testified that beginning when he was between four and five years old, defendant sexually assaulted him by either probing him digitally or by inserting his penis into L.T.'s anus. According to L.T., defendant would frequently give him "Nyquil and pills" even when L.T. was not sick, to get L.T. to fall asleep quickly. When L.T. would refuse to take the medicine, defendant would threaten to beat him and, in fact, did beat him for refusing on several occasions. After L.T. fell asleep, defendant would penetrate L.T. anally, which L.T. would sometimes witness upon waking up, but he more often experienced through the pain he felt the next morning as well as through his inability to walk or go to the bathroom. L.T. did not report the incidents to anyone while they were occurring because defendant had threatened to kill him if he ever told anyone.
L.T. returned to his mother's home in May 2003. In 2004, L.T. attempted to anally penetrate his younger brother. When asked on May 30, 2004 why he had done that, L.T. informed his mother that defendant had been "sexually touching [him] for the past seven to eight years." His mother reported this information to the police and the Division of Youth and Family Services (DYFS).
That same day, Investigator Asha Richards of the Camden County Prosecutor's Child Abuse Unit conducted a videotaped interview of L.T., wherein he related how he was drugged and sexually abused by defendant. The first reference to alcohol occurred in the following colloquy, in the context of the investigator's follow-up question to L.T., who had explained that he did not previously report the abuse to his mother because he was frightened of his uncle:
Q: Okay what makes you think he would hurt you?
A: Because he drinks a lot of beer and he just sometimes hit me for no reason sometimes.
L.T. also commented that defendant would threaten to punch or kill people "when he's drunk" and it would embarrass L.T. when they were "at parties [and defendant] would drink a lot of beer and he would say that to his friends."
On June 2, 2004, defendant appeared at the Camden County Prosecutor's Office and after waiving his Miranda*fn1 rights in writing, was interviewed by Investigator John Hunsinger and Sergeant Aida Marcial. Defendant denied the allegations against him. Defendant then agreed to submit to a computer voice stress analyzer (CVSA). Defendant was informed that the test indicated his answers to the questions of whether he had digitally and anally penetrated L.T. were deceptive.
According to Inv. Hunsinger, defendant again denied the allegations and then went on to say that "he's got a drinking problem" and "if he had done these things it would have occurred when he was drinking"; "if [L.T.] said it was [true,] if it happened then it probably happened"; and "[i]f it happened it would happen at nighttime because that's when . . . he would be drinking."
Defendant then consented to an audiotaped statement and after again waiving his Miranda rights, answered a variety of questions from Inv. Hunsinger and Sgt. Marcial, including the following:*fn2
Q: [W]e're talking about some allegations that [L.T.] had made against you is that correct?
Q: In your own words tell us about these allegations?
A: I'm suppose to had um had sex um, sexual intercourse with [L.T.] I was touching his behind and private parts and results of me probably drunk, of me drinking and things that I'm very sorry for this happening and I think that is a very sick thing to do. And that a person like me would need counseling, I maybe need counseling to do something like this.
Q: You feel as though you drinking problem?
Q: How long have you been drinking?
A: I've been drinking for approximately 15 to 20 years.
Q: How often would you drink?
A: Oh, um often, I drink beers, cans of beers and also I drink between 4 to 8 beers a day.
Q: And is that usually during the day or at night time?
A: Toward the evening, like mid day toward the evening.
Q: Would you considered yourself to get drunk or a nice buzz?
A: Well I think it be a buzz but at times it must be [half] way drunk to sometime to that of that of that I'm (inaudible) got drunk.
Q: Um, you indicated that you had ah sexual intercourse with [L.T.]?
A: I might have had sexual intercourse with him, yeah. I really can't remember so I might have been very intoxicated at the time.
Q: What leads you to believe that may have had sexual intercourse with [L.T.], if you can't remember?
A: Cause it's going to be a possibility of me doing that but like I said but being drunk remember but if he recalls then I must did.
Q: You know how many times this happened, or may have happened?
A: I can not recall at this moment.
Q: Do you ever, have you helped [L.T.] go to bathroom at night?
Q: And how would you help him?
A: That. Ah how would I help him, I would um take, walk him to the bathroom and pull his um pajamas down and (inaudible) put his hands and my hand may touch his penis to make sure it aim to the toilet [bowl].
Q: Would these be nights when your intoxicated?
Q: Um at any time do you recall when you were in the bathroom with him and he had his pants down do you recall either inserting your penis into his butt or finger?
Q: Possible that it may have happened?
Q: Why do you say very possible?
A: I was drinking and something sick like that happened so, yeah I feel it very possible (inaudible).
Q: Ok, do you think in your recollection that these things happened at night or during the day?
Q: And why would that be?
A: While I'm drinking. . . . .
Q: But then you keep saying you don't recall but you already it's a possibility that you did it. Are you saying you can't recall as an excuse?
A: No I'm not. I'm saying I can't recall because I don't remember it but the possibility if I was drinking it could've happened.
A: . . . I have no recognition of it[.] I still believe that it's false but since everything still coming up saying I did so I guess I did it but I am truly, truly sorry from the bottom of my heart.
Q: Hold on for a minute. Ok. Ok people do not admit to things that they do not do. Now earlier you said that there's a possibility that you could've done this because you were drunk.
A. I'm, I'm sorry for what I have done to [L.T.] the touching of his buttock and fingers being on his buttock and I'm sorry for doing it. I, I, I still can't picture myself doing it ...