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State of New Jersey v. R.T

April 28, 2011


On appeal from the Superior Court, Appellate Division.

Per curiam.


(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 of New Jersey v. R.T. (A-73-09)

Argued January 18, 2011 -- Decided April 28, 2011


In this case involving sexual offenses against a child, the Court considers the propriety of the trial court's decision to instruct the jury on voluntary intoxication despite the objections of defense counsel.

Defendant R.T.'s nephew lived with him between 1997 and 2003. In 2004, the nephew told his mother that defendant had sexually assaulted him on multiple occasions. The mother reported the allegations. Thereafter, defendant presented himself voluntarily at the Prosecutor's Office for an appointment. He was advised of the allegations, received Miranda warnings, and waived his rights. Following the pre-interview questioning by investigators, defendant's statement was audiotaped. He denied the allegations. However, he confessed to having a drinking problem and stated that if he had abused his nephew it would have occurred at night while he was intoxicated. He admitted that if he was intoxicated it was "very possible" that he committed the acts. Defendant was indicted on two counts of sexual assault, two counts of aggravated sexual assault, and one count of endangering the welfare of a child for crimes committed between 1997 and 2003.

Defendant moved to suppress his statement. At the suppression hearing, defendant claimed that he did not knowingly and voluntarily waive his rights because he was not aware that he was a target of the investigation and the officers were trying to ensnare him. The court denied the motion. Prior to trial, the State moved to permit the use at trial of a videotape of the nephew's interview, in which he recounted years of sexual abuse. With regard to defendant's alcohol use, the nephew stated only that defendant drank a lot of beer, would sometimes hit him for no reason, and at parties would sometimes threaten to hit or kill other people, including friends. The court granted the use of the nephew's statement.

At trial, defendant's confession and taped statement, including the references to drinking and intoxication, were admitted into evidence. Defendant took the stand and denied sexually assaulting his nephew, accused the police of coercion, maintained that police persistently suggested that he was drunk when he committed the crimes, and claimed that police directed his answers to questions. He also testified that after he was granted temporary custody of his nephew, hard feelings developed with the child's mother, giving her an incentive to encourage the nephew to lie.

Prior to summations, the trial court conducted a charge conference. During the conference, the court brought up the issue of a voluntary intoxication jury instruction. Defense counsel objected, pointed out that intoxication was never asserted as a defense, and stated that defendant did not want the instruction. Defense counsel explained that it was defendant's position that he was not intoxicated and that police coerced him into making false statements about intoxication, therefore the instruction would prejudice his case. However, the trial court determined to issue the instruction based on references to intoxication in the evidence. The intoxication instruction given to the jury stated, in essence, that if defendant was intoxicated on all of the dates set forth in the indictment to such a degree that he was incapable of acting knowingly, they must acquit him of the crime. The jury found defendant guilty of all charges. He was sentenced to an aggregate twenty-five-year custodial term.

Over a dissent, the Appellate Division reversed and remanded the case for a new trial. 411 N.J. Super. 35 (App. Div. 2009). The majority of the panel concluded that defendant's vague statements regarding alcohol use, along with the nephew's fleeting references to defendant's drinking, would not permit a jury to conclude that defendant was incapable of forming the intent to commit the crimes. They noted also that a charge should be given over a defendant's objection only where the facts in evidence clearly indicate the appropriateness of the charge. The majority found that the evidence did not satisfy that standard, the charge impermissibly interfered with defendant's trial strategy, and it may have suggested to the jurors that the judge believed defendant actually committed the acts but was intoxicated at the time. The dissenting judge believed that the evidence reasonably supported the charge and that defense counsel did not clearly articulate the prejudice to the defendant.

The State appealed to the Supreme Court as of right, pursuant to Rule 2:2-1(a)(2).

HELD: The members of the Court being equally divided on whether the trial court committed reversible error by instructing the jury on voluntary intoxication, the Appellate Division's judgment reversing and remanding the case for a new trial is affirmed.

JUSTICE LONG, CONCURRING, joined by JUSTICES LaVECCHIA and ALBIN, would affirm the Appellate Division's decision because the vagueness of the allusions to drinking in the evidence presented at trial did not warrant a voluntary intoxication charge, and the charge's issuance both interfered with defendant's trial strategy and affected the fairness of his trial. Explaining that all affirmative defenses are based on the notion that a defendant actually committed the crime but should be excused from its consequences, Justice Long maintains that a defendant who denies having committed a crime should not be required to acknowledge, either explicitly or inferentially, complicity through a compelled defense. Here, defendant denied intoxication, claimed that the idea came from the police, asserted that he never sexually abused his nephew, and maintained that the allegations arose from bad blood between him and the child's mother. The State only used the intoxication issue to undermine defendant's credibility and made clear its disbelief that intoxication played any role in the case. Because the defendant explicitly rejected the affirmative defense of intoxication, the instruction to the jury inferentially injected into the case an issue that did not belong there. Furthermore, the error was harmful because this case was based solely on the credibility of the nephew and the defendant, with no physical evidence or independent witnesses.

CHIEF JUSTICE RABNER, CONCURRING in part and DISSENTING in part, agrees that the evidence did not warrant a voluntary intoxication charge, but disagrees with the conclusion that the error was harmful. He asserts that any inference gleaned from the intoxication instruction would have had, at most, a negligible effect on the jury in light of defendant's pretrial statements, his strong denials at trial, and the State's contrary proofs, all of which the jury had to assess directly. He believes that, in the context of the entire record, the addition of the charge did not lead the jury to a verdict it otherwise might not have reached, nor did it lead to an unjust result.

JUSTICES RIVERA-SOTO and HOENS, DISSENTING, believe that the trial court appropriately exercised its discretion based on its evaluation of the evidence, and they assert that the record fails to show defendant was prejudiced by the voluntary intoxication charge.

The judgment of the Appellate Division is AFFIRMED.

JUSTICES LONG, LaVECCHIA, and ALBIN join in this per curiam opinion. JUSTICE LONG filed a separate concurring opinion in which JUSTICES LaVECCHIA and ALBIN join. CHIEF JUSTICE RABNER filed a separate concurring and dissenting opinion. JUSTICES RIVERA-SOTO and HOENS filed a separate dissenting opinion. JUDGE STERN, temporarily assigned, did not participate.

Argued January 18, 2011

The members of the Court being equally divided on whether the instruction on voluntary intoxication required a new trial (three members finding the error harmful, one finding it harmless, and two finding no error), the judgment of the Appellate Division is affirmed.

JUSTICES LONG, LaVECCHIA, and ALBIN join in this per curiam opinion. JUSTICE LONG filed a separate concurring opinion, in which JUSTICES LaVECCHIA and ALBIN join. CHIEF JUSTICE RABNER filed a separate concurring and dissenting opinion. JUSTICES

RIVERA-SOTO and HOENS filed a separate dissenting opinion. JUDGE STERN did not participate.


A-73 September Term 2009

STATE OF NEW JERSEY, Plaintiff-Appellant, v. R.T., Defendant-Respondent.

JUSTICE LONG, concurring.

At issue in this appeal is the propriety of the trial court's issuance, sua sponte, of a voluntary intoxication instruction, over the objection of defense counsel who claimed that the instruction was unwarranted on the evidence and negatively impacted his trial strategy. Defendant was convicted of sexual offenses against a child and the Appellate Division, over a dissent, ordered a new trial based on the issuance of the charge. State v. R.T., 411 N.J. Super. 35, 53 (App. Div. 2009).

The State appeals as of right. R. 2:2-1(a). The evidence in this case did not warrant a voluntary intoxication charge. Its issuance interfered with defendant's strategy and affected the fairness of his trial. I would therefore affirm.


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Defendant, Robert Trout,*fn1 was indicted on two counts of sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1); two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(7); and one count of endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a); committed between the dates of July 15, 1997, and June 30, 2003. The alleged victim of the charged crimes was defendant's nephew, Larry Trout (Larry), who lived with him during that period.


Defendant's Statement

Prior to trial, defendant moved to suppress a recorded statement he had given to the police. The testimony at the suppression hearing was as follows: on June 2, 2004, defendant presented himself voluntarily at the Camden County Prosecutor's Office for an appointment at the Child Abuse Unit. The purpose of the appointment was to discuss allegations that had been made by Larry against defendant. Sergeant Aida Marcial and Investigator John Hunsinger conducted the interview. Defendant was advised of Larry's allegations against him and received Miranda warnings. Defendant stated that he understood his rights and signed a waiver card. He denied Larry's claims and Investigator Hunsinger asked him if he would submit to a computer voice stress analyzer (CVSA). Defendant agreed and underwent the test. Subsequently, Investigator Hunsinger advised defendant that the CVSA indicated deceptive answers to two questions regarding penetration of Larry.*fn2 According to Investigator Hunsinger, defendant renewed his denial of the allegations. Defendant then expressed his belief that if he had abused Larry it would have occurred while he was drinking. At the end of the interview, Investigator Hunsinger asked defendant if he would consent to an audiotaped statement. Defendant agreed and Investigator Hunsinger again issued Miranda warnings. Again, defendant waived his rights. Then, the following exchange occurred:

Q: [Defendant] we're talking about some allegations that [Larry] had made against you is that correct?

A: Yes.

Q: In your own words tell us about these allegations?

A: I'm suppose to had um had sex um, sexual intercourse with [Larry] 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 [have a] drinking problem?

A: Yes I do[.]

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 consider[] 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 I'm (inaudible) got drunk.

Q: Um, you indicated that you had ah sexual intercourse with [Larry]?

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 [you] may have had sexual intercourse with [Larry], 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 [Larry] go to the bathroom at night?

A: Many times[.]

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 you['re] intoxicated?

A: Yes[.]

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?

A: I don't recall that[.]

Q: [Is it p]ossible that it may have happened?

A: Very possible, yes[.]

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: Have you ever found yourself with any ah sexual tendencies towards [Larry]?

A: I found myself with none no.

Q: You ever thought of him in a sexual way?

A: Not with no clear head I didn't never did, no.

Q: What would you say to [Larry] when you were doing this? Do you remember some of things that you were saying to him?

A: No cause I don't remember doing it, so I mean (inaudible) I don't remember saying nothing to him.

Q: You don't remember saying anything to him?

A: No[.]

Q: Ok, do you think in your recollection that these things happened at night or during the day?

A: At night[.]

Q: And why would that be?

A: While I'm drinking.

Q: Ok did anybody ever see this?

A: Obviously not.

Q: Did you ever say anything to [Larry] about this or did he ever say anything to you about it?

A: No I never said anything to him about [it] because I don't recall the things, he never came over to me and said nothing about it.

Q: But then you keep saying you don't recall but you already [said] it's a possibility that you did it. Are you saying ...

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