On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No.05-01-0249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Carchman and Lihotz.
A jury found defendant W.H. guilty of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial judge sentenced defendant to an aggregate term of imprisonment of eight years subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Although defendant raises a number of issues on appeal, the critical issue for determination is whether the trial judge erred when permitting the jury to watch a videotape of the victim's pretrial interview during the jury's deliberations. We answer the question in the negative and affirm.
These are the facts adduced at trial. On December 30, 1994, M.D. was born to K.D. and defendant, who were, at that time, involved in a romantic relationship. Sometime thereafter, K.D. and defendant ceased their relationship.
When M.D. was 8-years old and in the third grade, K.D. and defendant decided that M.D. would begin to spend more time with defendant, and M.D. was permitted to sleep at defendant's house as well as defendant's girlfriend's house approximately two weekends per month. Generally, defendant would pick up M.D. on Friday afternoons and return her to K.D.'s house on Sunday night to be ready for school on Monday. During this period, between the summer and October of 2003, K.D. noticed that her daughter, who was generally "outgoing" and "talkative", became more reticent and distant, and her grades steadily declined.
On Tuesday, October 21, 2003, K.D. asked M.D. what she did with her father over the weekend. K.D. was surprised when her daughter said that she slept at defendant's house rather than at the girlfriend's house. K.D. continued to probe M.D. regarding what she did with her father that weekend, and M.D. suddenly started "hysterically crying." After K.D. was able to calm her daughter down, M.D. revealed that defendant "touched" her. That same night, K.D. and M.D. went to the Asbury Park police department to report this information. Three days later, K.D. brought her daughter to the Monmouth County Prosecutor's Office to take a statement and conduct a videotaped interview.
In the videotaped interview, conducted by Prosecutor's Detective Michael Magliozzo, M.D. disclosed that her father sexually assaulted her on three occasions between the summer and October 2003 while she was staying with him for the weekend. On one occasion, she was lying on the couch in defendant's living room, not yet asleep, when her father came over to her, took out his penis and tried to put it over her underwear. M.D. maneuvered her body in such a way that he could not do anything else to her, but she said his penis felt "hard."
On another occasion, M.D. was asleep on defendant's bed, and she was not wearing any underwear due to the heat. At some point her father laid down behind her, her back against his front, and defendant attempted to put his penis into her "butt." Defendant did not penetrate M.D., but M.D. described the experience as the "worst ever," because her father's penis "almost went in."
On another occasion, the girlfriend's niece, J.B., was also sleeping at defendant's house. Again, because of the heat, M.D. was only wearing a shirt to bed, without any underwear. After M.D. and J.B. fell asleep, defendant carried them individually into his bedroom. Shortly thereafter, M.D., feeling something pressing against her vagina, awoke to see defendant on top of her. M.D. pushed him off and moved in a manner so he could not continue to attempt to penetrate her. Defendant did not penetrate M.D., but he moved behind J.B. and began touching her. M.D. did not know if defendant's penis penetrated J.B.*fn1
At trial, M.D. testified regarding the three sexual assaults described in the videotaped interview, as well as a previously unmentioned sexual assault. Specifically, M.D. testified that on one occasion she was rubbing lotion on her skin after taking a shower; defendant came into the room, rubbed lotion on her and touched her "front private area." Immediately after M.D. testified, the prosecution played the videotape of M.D.'s pre-trial interview prepared by Detective Magliozzo.
The thrust of defendant's trial strategy focused on discrepancies between M.D.'s in-court testimony and her videotaped interview. For example, on cross-examination, defendant questioned M.D. whether it was true that, prior to testifying, she never mentioned the incident where defendant rubbed lotion on her and touched her "front private area." In closing arguments, counsel argued:
Well, if there's no difference in the questioning, why, then, wouldn't she have on other occasions - -- because she basically testifies on the tape that it happened from August several times, August obviously into October, a third event she talked about --then she gets on the stand and again testifies. But this is important. Here it is three and a half years later and she testifies about an event and one of those events she recalls distinctly that [defendant] had lotion and put it on her and touched her in her private parts.
Is there anything, is there anything on that tape, is there anything when I questioned her regarding her testimony at the grand jury, both events, the tape being only three or four days after the incident, and the grand jury which was less than about a year, where is the question about the lotion? And the important part about that is if we're talking about an eight-year-old child and she is confused as to certain dates, all right, or certain actions regarding where he put his private part --on my rear or on my vagina -- wouldn't it make sense that at least a common, something that she would say, well, wait a second. I know on one of these occasions he used lotion and he put it on me. But there's nothing in the tape about that and there's nothing in the grand jury testimony about that. [(Emphasis added).]
At the conclusion of the trial, the judge charged the jury and, without objection from defendant, informed the jury that they would take the videotape of M.D.'s pre-trial interview into the jury room. The judge also stated that there was a television in the jury room with the video player, and if the jury had any difficulty operating it, they ...