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State v. A.G.


November 15, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0813.

Per curiam.



Submitted October 5, 2010

Before Judges Carchman and Messano.

By leave granted, the State appeals from an order denying its pre-trial motion to admit certain out-of-court statements made by the child victim in this sexual assault case, seven-year-old J.N. After consideration of the record and applicable legal standards, we reverse and remand the matter to the trial judge for further proceedings consistent with this opinion.

Defendant was indicted by the Middlesex County grand jury and charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to N.J.R.E. 803(c)(27) (the Rule), the State sought to admit statements J.N. made to prosecutor's investigator James Patrick Kelly and to her mother, C.O. The rule provides in relevant part:

Statements by a child relating to a sexual offense. A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; . . . . [N.J.R.E. 803(c)(27).]

The required Rule 104 hearing took place over two days separated by several months.

Kelly, an investigator with the prosecutor's office since 1990 and assigned to the sexual abuse unit since 2006, testified that on February 10, 2008, he was contacted by Perth Amboy police detective Ken Puccio. Puccio told him that C.O. had contacted the police to report J.N.'s allegations regarding defendant. In short, on February 9, J.N. was staying with her sister, F.A., who lived with defendant. J.N. claimed that while she was asleep, defendant took her from the bedroom, placed her on a couch, removed his pants and hers, and digitally penetrated her vagina. Kelly interviewed C.O. at the prosecutor's office child advocacy center and obtained her consent to interview J.N. He testified regarding the procedure he used to interview the child, and a digital video recording of his interview of J.N. was played for the judge.*fn1

C.O. also testified at the hearing. At the time of the events, her boyfriend, someone she identified only as Leo, stayed with her and J.N. on weekends. C.O. testified that she worked the evening of February 9 into the early morning hours of February 10 and left J.N. in the care of her oldest daughter, H.A.; unbeknownst to her, however, that daughter brought the child to F.A.'s house.

C.O. picked up J.N. at F.A.'s house at 1:00 p.m. on the afternoon of February 10. She suspected something was wrong because J.N. was "sitting like still" on the sofa when she arrived. C.O., J.N., and Leo went to lunch and returned to their home around 4:00 p.m. J.N. went "straight to [her] room and . . . under her blanket . . . ." C.O. expressed concern about the child's behavior to Leo and asked him to talk to J.N. He went to the child's room.

C.O. claimed that J.N. trusted Leo and "called him daddy." However, J.N. would not tell Leo what was wrong. He left for work at 6:00 p.m., and between thirty minutes and an hour later, J.N. came into C.O.'s room. The child was "shaking," and said, "I need to tell you something, but I'm afraid." After her mother consoled her, J.N. revealed that defendant had "touched her." C.O. called her other daughter, K.A., who lived upstairs, and J.N. told both of them what had occurred the night before. C.O. then called the police.

On cross-examination, C.O. claimed that she did not know Leo's last name because he was "using illegal papers." When pressed to provide Leo's last name even if it was false, C.O. was unable to do so. C.O. testified that Leo was alone with J.N. for approximately "fifteen minutes." Leo concluded only that the girl was "sad" and "tired" that evening. After the police had responded, C.O. told Leo about J.N.'s allegations. At the time of the hearing, C.O. knew Leo was in Connecticut with his brother Edmund, but claimed she did not know how to contact him.

Under questioning by the judge, C.O. admitted that she did not like defendant because he was violent toward her daughter, F.A., and that J.N. was not permitted to stay in their home.

C.O. also acknowledged that her son had told her that he had "done drugs with [defendant]," and that F.A. had told her that defendant "had sexual contact with a sixteen[-]year old and . . . was in jail for that." C.O. admitted that her unfavorable opinion of defendant was shared by K.A. and H.A., and that the three spoke about F.A.'s relationship with defendant, but never in front of J.N. The State rested after C.O.'s testimony.

Defendant called K.A. as a witness. She testified that on the day in question her mother called her on the phone and asked her to come downstairs. C.O. was upset, crying and pacing. J.N. looked scared, and K.A. spoke to her younger sister for "about half an hour," before the girl "told [her] what happened . . . ." K.A. called the police because her mother was too upset. K.A. did not know Leo's last name, but was aware that J.N. and C.O. had visited him in Stamford, Connecticut several months before the hearing.

Defendant recalled C.O. as a witness. Despite her earlier testimony that she had "broke[n] up" with Leo in February 2009, she admitted taking J.N. to see Leo in Connecticut in April. Nevertheless, C.O. reiterated that she did not know Leo's last name or his address in Connecticut, claiming that she and her daughter arrived by train and were picked up at the station by Leo's brother.

At the conclusion of the hearing, as he recounted the testimony during colloquy with the prosecutor, the judge noted:

In other words, Leo[,] according to the mother, was specifically sent in that room to see what was troubling this child. And we don't know what happened. We don't know what Leo asked the child, what the child volunteered. We know nothing about any questions or answers or any inquiry made by Leo of this . . . seven[-]year old child as to what was bothering her.

Which means, I think in order to . . . get a full picture, here, in order to put the Court in a position to rule on this, I would need to hear from either, Leo[,] . . . wherever he may be, or the child, for the limited purpose . . . of what [went] on in her room when Leo came to talk to her.

The judge then inquired whether either side wished to call any other witnesses. Both the prosecutor and defense counsel declined the opportunity. Further colloquy ensued. The judge addressed the prosecutor:

Given the facts of this case -- and I'm not saying that you're going to win if you put the child on the stand. But what I am saying to you is that without hearing from this child, I don't see how I can give you a favorable ruling. Because I can't make that finding without knowing what transpired between this seven[-]year old and her stepfather, during that initial encounter outside the presence of the mother.

The State then called J.N. as a witness. She did not recall having any conversation with Leo on the night in question.

In his oral decision, the judge first noted that "the forensic interview done by [Kelly] was very compelling." But, he continued:

[T]hat's not the end of the inquiry. Often times it's what happens in these case[s] before the police were ever involved.

In this case there was family involvement with the child -- in discussing with the child before the . . . police were even contacted, and mainly three people that were involved in that; the mother . . . her paramour also the stepfather of this child . . . and the child's older sister . . . .

After noting that only C.O. and K.A. testified, the judge observed that J.N. had a close relationship with Leo. Describing C.O.'s testimony that Leo had spoken to J.N., the judge noted,

[T]here's two ways of looking at this. . . .

[O]ne could infer that [J.N.] didn't tell Leo anything. Indeed if she did, you could infer that Leo would [have] immediately told the mother . . . . That's one way of looking at it, that this whole thing with Leo is really a non-issue, factually speaking.

But the other way of looking at this is that here you have a stepfather going in to talk to his stepdaughter as to inquire what's troubling her. . . . But we don't know . . . what he asked the child or how he asked the child. . . .

We don't know and it appear[s] we're never going to know what was said by Leo to this child. But . . . we can infer that there was no disclosure. Perhaps there was a denial. That nobody did anything to her . . . . [W]e'll never know that. . . .

And I think that that's a problem. It's a problem because . . . it prevents the Court from making exactly the finding that I have to make . . . .

After noting C.O.'s dislike of defendant, the judge mused, "Did Leo jump on that bandwagon . . . [a]s far as a general dislike of the defendant?"

Returning again to Leo's absence from the hearing, the judge reiterated,

I mean this is her stepfather who went in specifically, spent 15 minutes in her bedroom, presumably to find out what was wrong. Presumably did not find out what . . . [K.A.] and her mother were soon to learn. But yet we don't know what was said between the two of them. And without that information I think it's impossible for me to make the findings that I need to make under this rule. And I think it would be unfair to the defense to just . . . leap to the conclusion and . . . assume that there was nothing there.

[A]against this record I cannot make that finding, that based on the time, content and circumstances of this statement that it is inherently trustworthy, because I don't know. And I can't make a finding as to what occurred at the earliest moment, the first person who spoke to this child.

After denying the State's application, the judge, during colloquy with the prosecutor, noted that he was not barring testimony regarding J.N.'s disclosure to her mother that defendant had "touched" her. He concluded that it would be admissible as a "f[resh] complaint," noting that C.O.'s testimony in this regard was "very credible."*fn2

We first consider some general principles. The Rule "requires the trial judge to conduct a preliminary hearing . . . to determine whether an out-of-court statement is sufficiently reliable, based on the 'time, content and circumstances of the statement' and then decide what is the 'probability that the statement is trustworthy.'" State v. P.S., 202 N.J. 232, 249 (2010) (citing State v. D.G., 157 N.J. 112, 128 (1999)). "In determining whether the statement satisfies that standard, the judge should consider 'the totality of the circumstances.'" P.S., supra, 202 N.J. at 249 (quoting State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991)). "[A] non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse, includ[es] spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." P.S., supra, 202 N.J. at 249 (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 3150, 111 L.Ed. 2d 638, 656 (1990)); State v. Burr, 392 N.J. Super. 538, 570 (App. Div. 2007), aff'd, modified, remanded on other grounds, 195 N.J. 119 (2008).

We are required to accord deference to the factual findings reached by the trial judge. P.S., supra, 202 N.J. at 250 (citations omitted). If those findings are supported by sufficient credible evidence, we "affirm unless the judge's determination amounted to an abuse of discretion." Ibid. (citing State v. Nyhammer, 197 N.J. 383, 411, cert. denied, ___ U.S. ___, 130 S.Ct. 65, 175 L.Ed. 2d 48 (2009)). However, "we need not defer to the trial court's legal conclusions reached from the established facts." State v. Jefferson, 413 N.J. Super. 344, 352 (App. Div. 2010). "'If the trial court acts under a misconception of the applicable law,' we need not defer to its ruling." Ibid. (quoting State v. Brown, 118 N.J. 595, 604 (1990)). Applying these standards to the case at hand, we conclude reversal is required and that the matter should be remanded to the trial judge.

The judge clearly concluded that Leo's absence from the Rule 104(a) hearing was the determinative factor that made J.N.'s statements inadmissible under the Rule. He repeated several times that because he could not "make a finding as to what occurred at the earliest moment [with] the first person who spoke to" J.N., he was unable to "make th[e] finding, that based on the time, content and circumstances of th[e] statement that it [wa]s inherently trustworthy . . . ."*fn3

However, by focusing solely on this missing link in the chain of conversations that J.N. had with others, the judge largely ignored the totality of circumstances surrounding her conversations with her mother, her sister, and investigator Kelly. Certainly, in reaching his conclusion regarding admissibility, the judge was required to consider the factors outlined above. See P.S., supra, 202 N.J. at 253 (rejecting the defendant's argument that the lack of a taped interview due to equipment malfunction should per se result in exclusion of the statement; rather that was only one factor "to be considered along with all the other factors . . . relevant to trustworthiness"). Our review of the record fails to reveal that the judge gave adequate consideration to all the circumstances that must be considered in determining whether the statements were probably trustworthy.

We do not mean to suggest that the judge was unaware of these factors. Indeed, he noted, for example, that Kelly's interview of J.N. was compelling, and that the investigator demonstrated "unparalleled" patience in dealing with the child. The judge found that Kelly "never resorted to . . . leading questions." The judge also noted that the words J.N. used during the statement were "very compelling," and consistent with a seven-year old's understanding of sexual terms. He also found C.O.'s testimony describing J.N.'s ultimate disclosure of the alleged assault to be "very credible." In that testimony, C.O. described the child's mental state, and the judge had the opportunity to contrast that with her demeanor during the interview with Kelly several hours later. Although the judge noted C.O.'s animosity toward defendant, he never concluded that this supplied a motive for J.N. to fabricate her statements.

In short, we conclude that the judge did not appropriately consider the "totality of the circumstances" surrounding J.N.'s various statements. Reversal, therefore, is required. We also conclude that because the judge had the opportunity to consider extensive testimony and assess the credibility of the numerous witnesses in this case, it is most appropriate that we remand the matter for further proceedings so that the judge may consider the evidence more fully in light of our decision and applicable precedent. We leave the conduct of the remand hearing to the trial judge's sound discretion.

Reversed and remanded. We do not retain jurisdiction.

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