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State of New Jersey v. W.B

April 27, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
W.B., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Judge Stern

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. W.B. (A-80-09)

Argued October 13, 2010

Decided April 27, 2011

STERN, J. (temporarily assigned), writing for a majority of the Court.

The issues in this appeal are: (1) the admissibility of defendant's recorded statement; (2) the implications of a police officer destroying his or her notes after producing a final report; (3) whether expert testimony about the statistical credibility of the victim was admissible and, if not, whether its admission was reversible error; (4) whether testimony regarding the victim's complaint more than one and one-half years after defendant's sexual assault was admissible under the fresh complaint rule; (5) the propriety of the jury charge; and (6) whether the trial court abused its discretion in permitting the playback of defendant's videotaped confession, which had not been admitted into evidence.

On January 1, 2005, after being sexually assaulted by her cousin, sixteen-year-old D.L. told J.C., her former boyfriend, about her cousin's assault and that defendant, her stepfather, also sexually assaulted her when she was fourteen. DYFS and the Passaic County Prosecutor's Office (PCPO) were contacted. After DYFS spoke with D.L., several detectives, including Detective Donna Gade, went to defendant's home and waited for defendant. Upon his arrival, defendant was met by the detectives outside his home and agreed to accompany Detective Gade to the PCPO to discuss a family problem. D.L. and her mother also agreed to go to the PCPO. They arrived around 11:00 p.m. and were placed in separate rooms. Detective Gade first interviewed D.L., who said that defendant had sexually assaulted her on two separate occasions. D.L.'s statement was typed between 12:27 a.m. and 1:40 a.m.

D.L. reviewed it, initialed the top and bottom of each page, and signed and swore to the truthfulness of her statement.

Detective Gade subsequently took defendant to an interview room for questioning. She first administered Miranda warnings to defendant using the PCPO's Miranda rights and waiver form. Defendant initialed each right, and also signed the form's "waiver of rights" portion. After 2:10 a.m, Detective Gade began to interview defendant. He initially denied D.L.'s allegations. After sitting for a while and thinking, however, defendant admitted that he had sex with D.L. and agreed to provide a written statement. At approximately 3:42 a.m., Detective Gade took defendant's transcribed and videotaped statement, in which he acknowledged having sexual relations with D.L. twice. He also acknowledged that he voluntarily accompanied Detective Gade to the PCPO that night. Defendant reviewed and initialed each page of the statement and signed it at the end. His formal statement ended after 4:00 a.m., and he was arrested and charged at approximately 5:00 a.m.

At trial, D.L. recanted her earlier statement. D.L. stated that because defendant and her mother did not approve of her relationship with J.C., she made the false statement to interfere with their relationship. Defendant testified that prior to arriving home on the night he was taken to the PCPO, he drank several alcoholic beverages. Upon arriving home, he was grabbed by a police officer, patted down, and put into a police vehicle without an opportunity to refuse. He testified that he did not know why he was at the PCPO, was left waiting in a locked room for hours without food or drink, and was tired and intoxicated. According to defendant, he was then taken to another room where Detective Gade told him to sign a piece of paper, which he believed was the Miranda form. He could not, however, remember if he understood his rights. Defendant also testified that although he initially denied the allegations, after Detective Gade repeated the details over and over again, and stated that defendant had to tell her what she wanted to hear to go home, he told her "what she wanted to hear." In addition, Dr. Richard Coco, a Child Sexual Abuse Accommodation Syndrome (CSAAS) expert, provided testimony, which included an assertion that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse. Furthermore, the court provided the model CSAAS jury charge, as amended by State v. P.H., 178 N.J. 378 (2004). Finally, defendant's videotaped confession, which was never moved into evidence, was played back to the jury during its deliberations.

Defendant was convicted and the Appellate Division affirmed. The Court granted defendant's petition for certification. 201 N.J. 442 (2010).

HELD: (1) Defendant's recorded statement was admissible; (2) if a law enforcement officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge; (3) Dr. Coco's statistics-based expert testimony on victim credibility was beyond the permissible scope of CSAAS evidence, but it did not compel reversal; (4) testimony regarding D.L.'s complaint more than one and one-half years after defendant's sexual assault was properly admitted as fresh complaint testimony; (5) defendant's conviction is not reversible based on the jury charge provided; and (6) the playback of defendant's videotaped confession did not constitute an abuse of discretion.

1. Defendant's voluntary agreement to accompany Detective Gade to headquarters negated the need for probable cause to take him to the PCPO. It was appropriate to keep him separated while gathering information to safeguard D.L. In addition, defendant's confession was admissible because the record supports the lower courts' findings that defendant's recorded statement was made voluntarily and not coerced, and that defendant knowingly, voluntarily and intelligently waived his Miranda rights. (pp. 9-16)

2. After producing their final reports, law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime. Our criminal discovery rules provide for discovery of all statements of witnesses and police reports that are "in the possession, custody and control of the prosecutor." Rule 3:13-3 encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor's office for discovery purposes. Implementation of this retention and disclosure requirement is deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. Here, although Detective Gade destroyed her notes after writing her report, because defendant neither requested an adverse inference charge before the jury instructions were given, nor raised the issue before filing his motion for a new trial, he was not entitled to such an instruction. (pp. 16-19)

3. CSAAS expert testimony is permissible to explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny anything occurred. CSAAS evidence cannot be used as probative testimony of the existence of sexual abuse in a particular case. Dr. Coco's expert testimony, that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse, creates an inference that D.L. told the truth in her original accusation, and is beyond the permissible, limited scope of CSAAS evidence. Accordingly, such expert testimony about the statistical credibility of a victim is inadmissible. (pp. 20-27)

4. Convictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have prejudiced the defendant or affected the end result. Based on the totality of the circumstances, Dr. Coco's testimony did not unduly prejudice defendant or deprive him of a fair trial because: (1) Dr. Coco repeatedly clarified that the purpose of his testimony was to advise the jury about characteristics child abuse victims may exhibit; (2) it was clear that D.L. was almost an adult and, therefore, at the age of intellect and experience at which more alleged abuse victims may lie; (3) defense counsel, on cross-examination, addressed the issue of falsification by children at different age levels; (4) the State did not refer in summation to the portion of Dr. Coco's testimony concerning the percentage of young women who lie; and (5) the trial judge provided a detailed and exhaustive jury charge concerning the proper use of CSAAS testimony. In addition, there was sufficient other evidence on which to sustain the convictions. (pp. 27-30)

5. Testimony that D.L. complained to J.C. more than one and one-half years after defendant's sexual assault was properly admitted under the fresh complaint rule. To qualify as a fresh complaint, the victim's statements to someone he or she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. D.L. met the spontaneity prong when she told J.C. about defendant's past conduct almost immediately after her cousin's sexual assault. The reasonable time requirement must be applied more flexibly in cases involving children in light of their special vulnerability to being coerced into silence, their reluctance to report a sexual assault, and their limited understanding of what was done to them. Here, the record, including that D.L. lived with defendant before her disclosure, and that she was afraid to

report the abuse, supports the conclusion that the interval between the assault and the complaint was reasonable. (pp. 30-35)

6. The Court finds no basis on which to reverse the conviction because the model CSAAS jury charge, as amended by P.H., was given and the fresh complaint charge was not. P.H.'s suggested preface to the model CSAAS charge, however, did not cast the charge in stone. To the extent a defendant may believe the word "automatically" -- in the instruction that "[y]ou may not automatically conclude that [complaining witness's] testimony is untruthful based on [his or her] silence/delayed disclosure" -- unduly limits the jury's right and obligation to evaluate credibility, the word "automatically" is to be substituted by the words "may or may not conclude that . . .," or words of like effect. (pp. 35-40)

7. The playback of defendant's videotaped confession during jury deliberations did not constitute an abuse of discretion requiring reversal because: (1) the playback was in open court; (2) the videotape was played to the jury as part of the State's case; (3) the trial itself was videotaped and there was no court reporter available to read back what was played to the jury; and (4) as evidenced by his summation, defendant relied on the statement. (pp. 40-42)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, joined by JUSTICES LONG and HOENS, disagrees with the following findings by the majority: (1) that Dr. Coco's statistics-based testimony on victim credibility was harmless error; (2) that D.L.'s complaint to J.C. was made within a reasonable time under the fresh complaint rule; and (3) that the trial court properly exercised its discretion by playing back defendant's videotaped confession.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and RIVERA-SOTO join in JUDGE STERN's opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICES LONG and HOENS join.

Argued October 13, 2010

JUDGE STERN (temporarily assigned) delivered the opinion of the Court.

Defendant was convicted of offenses arising out of the sexual abuse of his then-fourteen-year-old step-daughter. After the Appellate Division affirmed defendant's convictions in an unpublished opinion, we granted certification to review a number of the contentions raised by defendant.

While we now affirm the Appellate Division and sustain defendant's convictions, we hold that Child Sexual Abuse Accommodation Syndrome (CSAAS) expert testimony cannot include any reference to the credibility of sexual abuse victims, and that an adverse inference charge may be given when a police officer destroys his or her investigatory notes before trial.

I.

The proofs at trial included (1) the introduction of a prior inconsistent statement of the victim, defendant's step-daughter, D.L.; (2) CSAAS testimony of an expert, Dr. Richard Coco; (3) fresh complaint testimony of D.L.'s boyfriend, J.C.; and (4) defendant's videotaped confession. Because specific facts relevant to each contention are noted with respect to the claims before us, we need only recite the essential proofs introduced at trial, as found by the Appellate Division, with essential additions, to be sufficient to sustain the conviction:

On January 1, 2005, at approximately 4:00 a.m., J.C. spoke with D.L., his then-sixteen-year-old former girlfriend. She told him that she and family members had been out celebrating the new year and then went home to bed. At some point thereafter, her cousin came to her bedroom and raped her. While telling J.C. this, she also told him that defendant, who is her stepfather, had also previously sexually abused her when she was fourteen years old. According to J.C., D.L. was "hysterical" and "crying a lot." J.C. discussed what he was told with his older sister who subsequently called the Division of Youth and Family Services (DYFS).

On January 12, 2005, the Passaic County Prosecutor's Office (PCPO) received a referral from DYFS, which indicated that D.L. was being sexually abused by her stepfather. Detective Donna Gade, the supervisor of the PCPO's Special Victim's Unit, immediately commenced an investigation.

At approximately 9:00 p.m., two DYFS investigators arrived at defendant's home and asked to speak with D.L. G.R., D.L.'s mother and defendant's wife, called D.L. downstairs, and the investigators spoke with D.L. privately in the kitchen for approximately fifteen minutes. The investigators did not give G.R. a reason for the visit, but G.R. assumed it had to do with the incident involving her nephew. The investigators said they would return later that evening, but did not. Instead, at approximately 10:00 p.m. that evening, Det. Gade, Detective Matthew Gallup, and two other detectives went to defendant's home to "try to locate [D.L.] and her mother as well as the suspect if he were home."

G.R. told Det. Gade that defendant was not home. G.R. contacted defendant and he returned home about fifteen minutes later. Det. Gade testified that she met defendant outside of the house and said that she was interested in speaking with him regarding a "family problem[.]" Det. Gade asked defendant if he would accompany the detectives to the prosecutor's office and defendant agreed. G.R. also agreed to go to the prosecutor's office, and D.L. was asked to accompany her. Det. Gade transported G.R. and D.L.; defendant rode with other detectives in another car. They arrived at the prosecutor's office around 11:00 p.m.

At the PCPO, defendant was placed in the polygraph room.

D.L. and G.R. were placed in separate rooms because Det. Gade "didn't want anybody talking to each other." Det. Gade interviewed D.L., who said that, on two separate occasions, defendant had penetrated her vagina with his fingers and his penis. D.L. said that, after these incidents, defendant stopped touching her in a sexual manner. According to Det. Gade, D.L. appeared visibly upset and uncomfortable discussing the matter.

Sometime between 12:27 a.m. and 1:40 a.m., D.L.'s statement was typed. D.L. reviewed it and placed her initials on the top and bottom of each page. D.L. then signed and swore to the truthfulness of her statement before Det. Gallup. After D.L. signed her written statement, Det. Gade took defendant to an interview room for questioning. Defendant was not handcuffed and Det. Gade was not armed.

Det. Gade provided Miranda*fn1 warnings to defendant, using the PCPO's Miranda rights and waiver form. She read each right to defendant and asked him if he understood what she said. Defendant replied that he understood and placed his initials after each right listed on the form, indicating his understanding of his rights. He also signed the "waiver of rights" portion of the form. Det. Gade and Det. Gallup each signed the form as witnesses at approximately 2:10 a.m.

Det. Gade then interviewed defendant. Defendant answered Det. Gade's preliminary questions; Det. Gade explained that defendant appeared to be "pretty comfortable" and "acted like a gentleman throughout the whole interview." Det. Gade informed defendant that she had learned that he had engaged in inappropriate conduct with D.L. According to Det. Gade, defendant was "very shocked" and denied that anything inappropriate had occurred. Defendant said that he would never do anything to hurt D.L. and she was like his "own child." However, after sitting for a while and thinking, defendant told Det. Gade that "yeah, you know, I do remember a time when I did have sex with her." Elaborating further, defendant stated that he had been drunk, came home, went to D.L.'s room, crawled into D.L.'s bed and had sex with her.

Defendant agreed to provide Det. Gade with a written statement. At approximately 3:42 a.m., Det. Gade left the room and returned with an individual who typed defendant's responses to her questions. Det. Gade also videotaped defendant's statement. In his videotaped and transcribed statement, defendant acknowledged that he had sexual relations with D.L. twice.

Defendant stated that, on both occasions, he placed his fingers and penis in D.L.'s vagina. Det. Gade asked defendant how she had treated him that evening, and he said Det. Gade had treated him "with kindness and care." After defendant's statement was completed, it was printed and given to defendant for review and signing. Defendant placed his initials on the top and bottom of each page, and signed it at the end. As they had in respect of D.L.'s written statement, Det. Gade and Det. Gallup each signed the statement as witnesses. Defendant was formally arrested and charged at about 5:00 a.m.

At trial, D.L. recanted her earlier statement; she testified that the statement she gave to the investigators was false. She said that she was in love with J.C. at the time, and defendant and G.R. did not approve of the relationship. D.L. stated that if she could not be with J.C., she would claim that defendant sexually abused her so that defendant and her mother too could not "be together."

Defendant also testified at the trial. He said that, on January 12, 2005, he left work at around 5:00 or 5:30 p.m. and went to a "social club." Defendant drank two beers and two "shots" of gin. Defendant left the club about thirty to forty-five minutes later, went to his home to get maracas, and returned to the club to play with a band. Defendant said that he drank four more drinks and a "couple of shots" after returning to the club.

According to defendant's trial testimony, he left the club around 10:00 or 10:15 p.m. As he was leaving, he received a phone call from G.R., who said that someone was at their house looking for him. Defendant returned home at approximately 10:15 or 10:30 p.m. A police car was in the driveway. He stated that one of the police officers grabbed him and told him to put his hands against the wall. The officers patted him down and put him into the police vehicle. Defendant asserted that he did not have an opportunity to refuse to get into the car.

Defendant further testified that he was taken to the prosecutor's office, placed in a locked room and told to wait there. Although the door to the room was locked, he was allowed to leave the room with supervision to go to the bathroom. Defendant claimed that he was kept in the room for about two or two-and-a-half hours and then taken to another room. He asserted he still had no idea why he was at the prosecutor's office, and had nothing to eat or drink after he arrived.

He also testified that he was "tired" and "tipsy" but tried to "keep [his] cool[.]" According to defendant, he was taken to another room, and that Det. Gade entered the room and told him to sign a piece of paper. Defendant believed the paper was the Miranda form. Defendant testified that he did not remember if he understood his rights because he had never seen a form like that before.

Defendant additionally testified that Det. Gade told him that D.L. had provided a statement indicating that defendant had sex with her. Defendant denied the allegations, but Det. Gade kept repeating the details "over and over again[.]" He said that Det. Gade told him that he had to tell her what she wanted to hear "because that's the only way we can all go home." Defendant testified that he was "tired" and "just wanted to go home." He stated that he eventually told Det. Gade "what she wanted to hear[.]"

Defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c), second-degree sexual assault, N.J.S.A. 2C:14-2c(4), second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and fourth-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-2a(2)(c) and 14-3a. After appropriate mergers, defendant was sentenced on the aggravated sexual assault count to ten years' imprisonment, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive five-year prison sentence on the endangering count. In the aggregate, then, defendant was sentenced to fifteen years' imprisonment subject, on the aggravated sexual assault, to a period of parole ineligibility of eight-and-one-half years and a mandatory five-year period of parole supervision.

On appeal, the Appellate Division affirmed the convictions over various challenges directed to evidence presented, the prosecutor's summation, the jury instructions, and certain procedural rulings.*fn2

We granted defendant's petition for certification, 201 N.J. 442 (2010), and affirm the ...


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