On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1970.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On August 31, 2007, a Monmouth County grand jury returned a five-count indictment charging defendant M.M. with (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (Count One); (2) second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); (3) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; (4) third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Four); and (5) third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Five). The victim in all of the offenses was defendant's daughter, N.M. A jury convicted defendant of all counts. At sentencing, the court imposed an aggregate ten-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, along with parole supervision for life pursuant to the Registration and Community Notification Laws ("Megan's Law"), N.J.S.A. 2C:7-1 to -11. While we conclude no single error standing alone warrants reversal, we are satisfied in cases such as this where substantial physical evidence is lacking, the errors, when considered collectively, warrant reversal because the evidence largely turned upon the jury's assessment of the witnesses' credibility. We therefore reverse and remand for a new trial.
Prior to trial, the prosecution moved before the court for an order permitting N.M. to testify by way of closed-circuit television pursuant to N.J.S.A. 2A:84A-32.4. The trial court conducted a hearing on October 2, 2008, during which N.M.'s psychiatrist, Richard Kleinmann, testified that he was the director of High Focus, where N.M. was admitted for in-patient treatment from January 2008 until late June 2008. Although the court had ordered that the records from High Focus be delivered to the court for review, in advance of the hearing, the records had not been delivered by the time of the hearing. The court determined it would proceed with the hearing because Dr. Kleinmann was present and prepared to testify. He then testified that N.M. did not present as a "stable young lady" when admitted to High Focus and that she left "still very seriously impaired." He expressed that he had "grave doubts" that N.M. could testify directly in front of defendant. He then opined that "subject to the caveat that she's been outside of my treatment now for three months . . . it would be extremely destabilizing for her, not only to testify in front of her father, but I have concerns about the whole courtroom." He based his opinion on the fact that N.M. would "have periods of dissociation while she was in treatment with us, as well as suicidal thoughts and serious cutting that she would engage in." He expressed concern that her testimony in a courtroom "could trigger to her the trauma that she reports having gone through, which could result in another hospitalization or suicide attempt."
Dr. Kleinmann was aware that N.M. testified before the grand jury in August 2007, and three months later was hospitalized at Carrier Clinic before being transferred to High Focus. Under cross-examination, however, he could not recall whether he had reviewed any medical records, including those from Carrier Clinic. He indicated that "normally" he would have reviewed records from Carrier Clinic. Nor did he have any recollection that N.M.'s testifying before the grand jury adversely impacted her or whether any of that information was included in N.M.'s chart. Although he never had a specific discussion with N.M. about her grand jury testimony, the doctor nonetheless concluded that the "whole environment of the courtroom is going to be very stressful for her. This is a very vulnerable child, and when she was under our care, she was sometimes holding on by a very slim thread."
At the outset of Dr. Kleinmann's testimony, defense counsel had reminded the court that N.M.'s psychological records had been requested so the defense expert could review those records, interview N.M., and present testimony in opposition to the State's motion. At the conclusion of Dr. Kleinmann's testimony, defense counsel reserved "the right to recall the doctor for further cross-examination after the records are provided."
There is no indication that defense counsel sought further questioning of Dr. Kleinmann or that there was a continuation of the pretrial hearing during which the defense produced its expert to rebut the opinions expressed by Dr. Kleinmann. Rather, when N.M. appeared for her trial testimony on October 1, 2009, the court denied the State's application for her closed-circuit testimony, but, over defendant's objection, advised that a 4' x 4' screen would be placed in the courtroom to shield N.M. from spectators during her testimony. The screen did not shield N.M. from defendant's view or from the jury's view. In ruling that the screen would be utilized, the court stated:
I'm not barring anybody from the courtroom, but I'm keeping a barrier between the witness and other people, and there may be other people who come in the courtroom too. We could have people walk in from the hallway that have no interest in the case, and the best way to protect everybody and give them the opportunity to hear the witness, without actually seeing the witness and hav[ing] the witness see them, is by putting up the screen and cutting off the one side. So, that's what I thought was appropriate to balance the interest of both sides.
The evidence presented at trial revealed that N.M.'s allegations of abuse first came to light when she was fourteen and near the end of eighth grade. She spoke to her school guidance counselor and told him that a friend was being abused by a family member. The counselor referred N.M. to the school social worker, to whom N.M. repeated the same story. As a result, school officials contacted the Division of Youth and Family Services ("Division"). The Division conducted an investigation, interviewing N.M. and other members of her family. N.M. maintained that her friend, not herself, was being abused and refused to give her friend's name.
The next incident where N.M. made statements that provoked suspicion of abuse occurred during an eighth-grade class trip to Washington, D.C., when N.M. told her vice-principal that she did not want to go home because "[she] didn't like [her] dad." Over defense counsel's objection, the vice-principal testified: "N.M. said to me that she was happy being on the trip, but was withdrawn because she was concerned[,] thinking about going home and would rather be where she was." Although school officials considered contacting the Division again, they did not do so. Instead, N.M. was referred to a psychologist and counselor.
During the next school term, an incident occurred in N.M.'s ninth-grade biology class. She threw a Post-it note pad at her teacher and then tried to wrestle it away. On the Post-it note, N.M. had written "rape is a good thing" three or four times. After class, the teacher asked N.M. if there was anything about which he should be concerned. N.M. walked out the door without responding. The biology teacher testified that later in the day, he overheard a conversation between N.M. and another student. The student was complaining about having a lot of homework. N.M. responded, "'You wouldn't want my life.'"
Defense counsel objected to the statement as hearsay. The objection was overruled and the court permitted the statement on the basis that "It is a statement. It's not [offered] to prove the truth of anything. She just says it. . . . No, it's not offered for the truth of the matter. I will permit it."
The school contacted N.M.'s counselor and informed the counselor about the Post-it note incident. The counselor met with N.M. later that week and questioned her about the incident. In response, N.M. told her counselor that her father had sexually molested her. The counselor conveyed this information to N.M.'s mother, Mrs. M., who, along with N.M. and the counselor, then went to the Holmdel Police Department to report N.M.'s allegations.
As part of its case in chief, the State, without objection from the defense, introduced instant messages (IMs) between N.M. and her cousin, J. The IMs were from February 1, 2007 to June 6, 2007, when N.M. was fifteen years old and in the ninth grade. N.M. testified that on February 3, 2007, she sent a message to J. in which she said: "'Yeah look, about that whole "rape" thing, I looked it up on RAIN and according to that (a trusted source) it is rape.'" N.M. explained that she was discussing whether her father inserting his finger into her vagina was rape. She testified about a March 4, 2007 conversation in which she said, "'I'm turning into my father'" and "'J., I'm not going to let myself molest people.'" N.M. further testified about a conversation on April 5, in which she asked J., "'If you go to the hospital for like STD [sexually transmitted disease] testing, do you need a guardian/can it be anonymous/confidential?'" In the same conversation, N.M. told J. she "'woke up the other day and [she] "was in a lot of pain,"" and her vagina "'looked nasty.'" She also told him that the following day she "'found his like shorts inside out under [her] bed.'" N.M. also testified about an April 16 message in which she told J., "'Now if my daughter is ever raped (Lord hopefully not) I will now know how to be there for her.'"
The prosecution also introduced, without objection from the defense, N.M.'s poetry journal, which she created for a ninth-grade English assignment. The jury heard the following excerpts:
"Every country, every age, every day of the year, people suffering, girls being mothers, diseases infecting the young and the old, mountains of regret, wave after wave of painful memories, no more life gone, loss of innocence." ["Eight Line Poem [-] Loss of Innocence".]
"Genocide cruel, ruthless raping, torturing, killing, plowing forward with no mercy, mass murder."
"Loss of innocence is a teenager's slit wrists, a dirty needle, a broken condom, an empty beer bottle, a smoking gun." ["Free Verse".]
"Why did this happen to me? And what did I do to deserve this? Why can't I just break free, and bury this tragic abyss? But how can I escape and forget all that has happened, when my mouth seems to be bound with tape, and my whole life I've felt abandoned? I could run away to a far away land and forget this dismay, but no, I must make others understand about what has happened, I must spread the word and find a way for others like me to be heard." [From the book entitled "Sonnet".]
"This was a night to remember, a night never to forget, the first time it happened, when the shadow she met. She blames it on herself and kept it a dark secret, but it only got worse[,] ...