August 1, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2013
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-02-0050.
Scott M. Wilhelm argued the cause for appellant (Winegar, Wilhelm, Glynn & Roemersma, P.C., attorneys; Mr. Wilhelm, of counsel and on the brief; Jennifer L. Toth, on the brief).
Emily R. Anderson, Deputy Attorney General argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Anderson, of counsel and on the brief).
Before Judges Graves, Espinosa and Guadagno.
Defendant appeals from his convictions for second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges arose from allegations that he touched his four-year-old daughter's vagina. The theory of the defense was that defendant's ex-wife, D.C., influenced their daughter, T.C., to make a false allegation against him and that the allegation mirrored D.C.'s experience of sexual abuse as a child. In this appeal, he challenges the denial of his motions to permit a marriage counselor to testify at trial without limitation by the marriage counselor privilege, N.J.S.A. 45:8B-29; N.J.R.E. 510. For the reasons that follow, we affirm.
Defendant presents the following arguments for our consideration:
DEFENDANT'S APPEAL SHOULD BE GRANTED IN THE INTEREST OF JUSTICE.
RAYMOND BIERSBACH, PH.D. SHOULD HAVE BEEN PERMITTED TO TESTIFY REGARDING STATEMENTS MADE DURING THE DEFENDANT AND [D.C.'S] MARRIAGE COUNSELING AS PART OF THE DEFENDANT'S DEFENSE.
THE TRIAL COURT INCORRECTLY CLASSIFIED THE MOTION-IN-LIMINE AS A MOTION FOR RECONSIDERATION.
THE TRIAL COURT'S RELIANCE ON STATE V. ROMA  IN DENYING THE MOTION-IN-LIMINE IS MISPLACED.
THE NEW JERSEY SUPREME COURT'S DECISION IN STATE V. MAUTI  SHOULD BE APPLIED TO DEFENDANT'S CASE.
THE RULES OF EVIDENCE DO NOT PROHIBIT DR. BIERSBACH FROM TESTIFYING.
APPELLATE REVIEW IS NECESSARY TO PROTECT DEFENDANT'S LIBERTY INTEREST.
Because defendant's appeal is grounded in his challenge to the court's decision not to allow the marriage counselor to testify unfettered by the marriage counselor privilege, we tailor our summary of the facts and procedural history accordingly.
In February 2009, defendant and D.C. were separated. They had an informal agreement by which T.C. and their two sons lived with D.C. and, until then, defendant had daytime visitation with them. The children had their first overnight visit with defendant on the weekend of February 27, 2009.
According to D.C.'s testimony at trial, the boys were visiting with defendant during the next weekend, on March 7, 2009. As she was preparing T.C. for a nap, T.C. "blurted out that daddy touched me while the boys were asleep and that he wasn't stopping until I told him that I'm going to call the police." T.C. said that defendant touched her vagina with his thumb. D.C. filed a written report with the police and reported the alleged incident to the Division of Youth and Family Services (DYFS). After T.C. told a DYFS worker that defendant touched her vagina during a visit at his home, the matter was referred to the Warren County Prosecutor's Office.
Prior to trial, defendant filed a motion to permit Raymond Biersbach, Ph.D. to testify at trial without limitation by the marriage counselor privilege. Defendant began counseling with Dr. Biersbach in April 2006, and D.C. joined defendant for marriage counseling with Dr. Biersbach in September 2006. Dr. Biersbach had not seen or counseled D.C. or the children since the fall of 2007, when T.C. would have been approximately three years old.
In support of his motion, defendant stated that D.C. had been affected by mental illness, specifically bipolar disorder, for most of her life and that she had been sexually and physically abused as a child. He represented that, in the counseling sessions with Dr. Biersbach, D.C. admitted her illness affected her ability to distinguish reality from the abuse she suffered as a child and that, as a result of her illness, she often became paranoid regarding her husband and family.
Defendant argued that Dr. Biersbach's testimony and records were "vital" to explain
[D.C.'s] issues with detachment and her inability to decipher reality from the trauma of abuse as a child. At the very least, this evidence, may be relevant to the trier-of-fact in support of the Defendant's position that Defendant's ex-wife coached her daughter into making false accusations against Defendant, the same way [D.C.] has done in the past.
In addition, defendant argued that the privilege should be waived in the best interest of T.C.
Defendant supported his motion with a report prepared by Dr. Biersbach, dated October 10, 2007. In the report, Dr. Biersbach described factors that complicated the couple's communication as a couple, including the following:
They both made nasty allegations against one another that they have since modified or withdrawn. [D.C.] admitted . . . that she had exaggerated her account of [defendant's] mistreatment of [their oldest son] because [he] "reminds me of me" and the abuse she suffered in Haiti and in the United States. It is worth noting that [D.C.'s] family left her behind in Haiti "as security" to an agent who helped them enter the United States. She has since admitted she lied in court because she feared her children would be taken from her, and thus, "abandoned and (left) unprotected" as she was in Haiti. The allegations [defendant] and [D.C.] made against one another were, they agree, influenced by her history of sexual abuse, [defendant's] recovery from alcohol dependency[, ] and [D.C.'s] bipolar disorder that  had gone untreated for some time.
Dr. Biersbach reported that communication between defendant and D.C. had improved and that they agreed that "[D.C.] ha[d] monitored her bipolar symptoms." He recommended that they be discharged from treatment.
The trial judge denied defendant's motion and set forth his reasons in a written opinion.
In December 2010, defendant filed a second motion in limine to permit Dr. Biersbach to testify without limitation by the marriage counselor privilege. Although D.C. had not seen Dr. Biersbach since October 2007, defendant was still receiving individual counseling with him. Defendant submitted that, if permitted, Dr. Biersbach would provide testimony consistent with two letters he had written, dated April 23, 2008, and June 20, 2009, which were included to support the motion.
Dr. Biersbach's letter of April 23, 2008 provides a history of his treatment of defendant and D.C. Unlike his report of October 2007, in which he noted that both had made "nasty allegations" against each other that they subsequently modified or withdrew, this letter acknowledged no such conduct by defendant, who remained his patient. As to D.C., the letter described a "kind of withdrawing and contradicting her own statements [that] undercuts [her] credibility." The letter included examples of statements made by D.C. that Dr. Biersbach said he "suspected" or found "not credible." The letter also included statements D.C. made in counseling sessions regarding her bipolar episodes and her inability at times to discern what is real and what is not.
In Dr. Biersbach's letter dated June 20, 2009, he summarized what he could "offer as a witness." He stated he had three concerns with what D.C. had told him in counseling sessions. First, she admitted lying repeatedly in giving testimony, which, he noted, "undercuts her credibility." Second, she sometimes admitted to having "psychotic episodes" and at other times denied her mental illness, which he said "speaks to impaired insight and judgment." Third, he said the kinds of abuse she received from her family were "curiously similar" to the claim of abuse against defendant. He stated,
I [have] fears that [D.C.] would try to wrongly influence [T.C.] and that [T.C.] would be vulnerable to [D.C.]'s suggestions. Unless these issues [are] addressed it could lead to invalid testimony against [defendant].
Dr. Biersbach also offered to "prepare a literature review on false memories and the vulnerability of children to parent and therapist coaching as possible contaminants to testimony" to assist defense counsel in preparation for trial. Dr. Biersbach wrote another letter in February 2011 to defense counsel in which he stated he "certainly support[ed counsel's] efforts on behalf of" defendant and expressed his willingness to testify.
Defendant's second motion regarding Dr. Biersbach's testimony was denied by the court, which described it as a motion for reconsideration of the earlier motion in limine.
T.C., who was seven years old at the time of trial, was permitted to testify after the trial judge questioned her and determined that she was able to distinguish between true and untrue statements. When T.C. was shown a diagram of the female body, she stated that the vagina and buttocks are parts of the body "that nobody is supposed to touch[, ]" and then testified that no one had "ever given [her] touches on any of those body parts[.]" When she was asked directly, "[D]id anyone ever give you a touch on either your vagina or your butt?" she replied, "No." When asked if defendant "[did] anything to [her] that she didn't like" during her last visit with him, she responded, "No, " and then responded "Yes, " when asked if she "want[s] to go for visits with [her] daddy[.]" She repeatedly testified that she did not remember describing what happened to her. She stated, however, that she felt "scared" about being in court because she had not "been in front of a lot of people in a long time."
The State was permitted to present testimony from Janet Martinez, a representative of DYFS's Special Response Unit; Derek Kries, a detective for the Special Victim's Unit of the Warren County Prosecutor's Office; and D.C., about what T.C. had said to them about the incident pursuant to the trial court's ruling that such statements would be admissible under the tender years exception to the hearsay rule. See N.J.R.E. 803(c)(27).
Martinez interviewed T.C. privately following the referral to DYFS. T.C. told Martinez she had gone to the hospital earlier that day because defendant had touched her vagina during a visit at his home. When pressed on her understanding of the word "vagina, " which she used on her own, T.C. explained that "it was a private part on her body" and pointed to the vaginal area of her doll. T.C. said that her brothers were asleep at the time of the incident, and that it hurt when defendant touched her. She said that defendant stopped touching her when she told him "not to do that ever again." T.C. told Martinez that although she was not afraid of defendant, she did not want to see him again because he had touched her. Martinez testified that when she asked T.C. whether this was the first time that defendant touched her,
[T.C.] lowered her head [and] stopped eye contact, which up until that point had been very good[.] . . . At that point she seemed like she was shutting down. She wasn't looking at me in the eyes and she repeated over and over, that it happened before, it happened before.
Kries interviewed D.C., T.C., and T.C.'s older brother, L.C. Kries recorded his interview of T.C. and the video of that interview was played for the jury. During the course of the interview, T.C. stated defendant had touched her vagina with his thumb and had touched her buttocks with his pinky finger while she was staying at his home overnight, and while her brothers were asleep. When Kries asked T.C. about a drawing she had made, she said that it was of her and defendant and said, "Don't let my daddy touch me." At the end of the interview, Kries questioned T.C. on her ability to distinguish between the truth and a lie and she responded that she did not understand the difference. However, when he gave her examples, she was able to make the distinction.
After he was advised of the allegation made against him, defendant came to the Prosecutor's Office. Defendant was provided with warnings regarding his right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he agreed to speak with the detectives voluntarily.
This was the first of three interviews of defendant by detectives and the transcripts of all interviews were admitted into evidence. Defendant denied touching T.C. in a sexual way. Although his defense at trial was that D.C. coached T.C. to make the false accusation, in this interview he stated he believed D.C.'s sister fabricated the incident and planted it in T.C.'s head. He stated that all he had done was help T.C. change out of underwear and into a pair of pull-ups because she had accidents during the nights she stayed at his home, and help her put her pants on and buckle them. Defendant also told Kries, "[T.C.] has been known to lie."
Defendant also told the detectives that D.C. had been diagnosed with "severe postpartum depression" and described sexual behavior by her. Defendant stated that he came home from work one day to find D.C. masturbating with a vibrator on their bed, and that T.C. was on the bed with her, which he felt was "really inappropriate"; that D.C. walked around the house naked and allowed the children to walk around the house naked; that D.C. would leave sex toys in plain sight of the children; and that T.C. would lick D.C.'s breasts. Defendant expressed remorse about not putting an end to the children being naked, stating that "[h]e should have put his foot down with his wife and they shouldn't have had little kids running around naked." Defendant brought D.C.'s vibrator, as well as a "bunch" of photographs of the children and D.C. walking around the house naked, to the interview.
D.C. did not deny defendant's contention regarding nudity. She testified that it was not uncommon for them to be naked in the house because defendant "always wanted . . . [them] to be nude in the house and he would get mad . . . if that didn't happen." She also admitted they took photographs of one another while they were naked.
On cross-examination, D.C. testified about her sexual experiences as a child. When defense counsel asked her if she had been sexually abused "at some point in [her] life, " D.C. responded:
I was, when I was seven I -- I wasn't touched. . . . [M]y older cousin . . . told me, and there was another boy her age and a boy my age . . . and she told me whatever she does with a boy I'm supposed to do as well or she will get me into trouble. So if she kissed a boy, she wanted me to kiss a boy and that's what happened.
. . . .
[W]e didn't have sex, but . . . he kissed me[.]
Defense counsel asked D.C. about a statement she had made when hospitalized in 2006 that she had been abused by her aunt's husband when she was a child. When D.C. testified that she did not recall saying that to people in the hospital, defense counsel confronted her with the hospital record that he obtained from DYFS records that included such a statement. Although D.C.'s recollection was not refreshed by the record, she testified that there were additional instances of abuse:
DEFENSE COUNSEL: So to make it clear for the jury, you have had a history of being sexually abused?
Defense counsel later asked D.C. if she ever told T.C. that she had been sexually abused as a child. D.C. responded, "No, I don't think so."
D.C. also testified about her history of mental illness. She said she had suffered from depression since 1992, when she was hospitalized for it. She was again hospitalized for approximately one week in the spring of 2006, at which time she was diagnosed with bipolar disorder. She began seeing a psychiatrist once a month, was placed on medication, and attended weekly group counseling for people with mental illnesses. D.C. was hospitalized again in January 2008 and February 2008, and was thereafter placed on different medication. She testified that there were no issues with her mental health between February 2008 and March 2009, and that at the time of the incident, she was no longer participating in group counseling, but was still seeing her psychiatrist every two months. She testified that, at the time of trial, she was seeing her psychiatrist once every three months and decreasing her medication because she was doing well.
D.C. admitted that when she has a manic episode, she does not think clearly. She further testified that in February and March of 2009, she was "under a great deal of stress" because she and defendant were going through a "heated" divorce and they were having custody and visitation issues in which lawyers were involved. Although she admitted that stress causes her to suffer "manic depression, " which "clouds [her] thought process, " she denied that she was suffering from a manic episode on March 7, 2009 when the allegations against defendant were first made.
On cross-examination, D.C. was asked about false allegations she had made against defendant in the past. She testified about statements she had made in conjunction with a domestic violence complaint. She had her first manic episode in the spring of 2006 and was hospitalized. Her children were staying with defendant's mother, but when she wanted the children to leave her house, the court awarded custody to defendant. At that time, she was having DYFS-supervised visitation with the children twice per month. D.C. wrote a letter to the court, stating she "suffered [at] the hands of [defendant] physically and emotionally and verbally[, ]" a copy of which she sent to DYFS, and filed for a restraining order. She wrote a second letter to the judge in August 2006, in which she admitted that she had lied in the courtroom while under oath and requested that the restraining order be "dropped." She testified, however, that the representations she made in this letter were not true, and that she wrote this second letter only because defendant told her to do so. D.C. sought another restraining order against defendant in February 2008, but her domestic violence complaint was dismissed because the court determined that her "allegations of domestic violence [had] not been substantiated."
N.J.R.E. 510 incorporates N.J.S.A. 45:8B-29 to define the marriage counselor privilege, and states,
A communication between a marriage and family therapist and the person or persons in therapy shall be confidential and its secrecy preserved. This privilege shall not be subject to waiver[.]
The Supreme Court observed that this rule "makes it clear that one party may not force disclosure of communications made by another party at a time when both parties were engaged in common therapy." Kinsella v. Kinsella, 150 N.J. 276, 305 (1997). Privileges are not, however, "absolute and may, occasionally, yield to competing legal principles." Mauti, supra, 208 N.J. at 536. Although a statutorily created privilege is to be given "as much effect as possible, " in extraordinary circumstances the privilege must yield to a defendant's Sixth Amendment right to a fair trial. Id . at 536-37; see also Roma, supra, 140 N.J.Super. at 592. However, the Court cautioned that it was "crucial" to understand that there was no
broad equitable balancing test pursuant to which any privilege is subject to piercing if the adversary "needs" relevant evidence that cannot be obtained from another source. Such an approach would eviscerate the privileges and trench on the legislative judgments informing them. To the contrary, . . . we recognized that only in the most narrow of circumstances, such as where a privilege is in conflict with a defendant's right to a constitutionally guaranteed fair trial, would the need prong of its test be satisfied.
[Mauti, supra 208 N.J. at 537-38 (discussing In re Kozlov, 79 N.J. 232 (1979) and In re Farber, 78 N.J. 259 (1978)).]
The Court has identified three "necessary foundations to the valid piercing of any such privilege":
(1) "[t]here must be a legitimate need of the party to reach the evidence sought to be shielded"; (2) "[t]here must be a showing of relevance and materiality of that evidence to the issue before the court"; and (3) it must be shown "by a fair preponderance of the evidence . . . that . . . the information could not be secured from any less intrusive source."
[Kozlov, supra, 79 N.J. at 243-44.]
The Supreme Court confirmed in Mauti, supra, that these requirements "apply equally to all privileges[, ]" including the marriage counselor privilege. 208 N.J. at 539.
Defendant argues that he satisfied all three Kozlov requirements and therefore should have been permitted to offer Dr. Biersbach's testimony at trial. We disagree.
In arguing that he has shown a "legitimate need" for the privileged communications, defendant states that the enforcement of the privilege rendered his constitutional right to confront his accusers "a nullity." Specifically, he argues he was deprived of the ability to challenge D.C.'s denial that she was suffering from a manic episode on the day the allegations were first made. He states that Dr. Biersbach's testimony and records would have illustrated that D.C. admittedly lied at a domestic violence hearing; denied the extent of her mental illness "when convenient"; failed to acknowledge that her experience of childhood sexual abuse "affected her view of reality and this case"; and that his testimony would have confirmed that D.C. "continues to suffer from bi-polar [sic] disorder [and] the lingering effects of childhood sexual abuse syndrome." Defendant also contended that the testimony was relevant for the jury's consideration of the defense that D.C. coached her daughter into making false accusations against him.
As the Supreme Court noted in Mauti, supra, it is "only in the most narrow of circumstances, such as where a privilege is in conflict with a defendant's right to a constitutionally guaranteed fair trial, " that the need prong of the Kozlov test is satisfied. 208 N.J. at 538. Defendant's right to a fair trial was not compromised by the privilege here for several reasons.
First of all, the proffered testimony and records do not provide competent evidence to serve defendant's stated needs. Aside from his own suspicions, there is nothing in Dr. Biersbach's records that reveals any prior event in which D.C. coached her daughter or anyone else to make false accusations against defendant or anyone else. Second, although defendant argues that Dr. Biersbach could have testified that D.C. "continues" to suffer from bipolar disorder and the effects of childhood abuse, Dr. Biersbach had no contact with D.C. for nearly four years prior to trial. Therefore, he lacked a factual basis for such testimony and certainly could not have testified as to her mental state on the day the allegation was made.
In addition, the enforcement of the privilege did not preclude defendant from presenting the defense he has articulated, i.e., that D.C.'s histories of mental illness and sexual abuse caused her to fabricate this incident. D.C. was questioned extensively about her history of mental illness, hospitalizations, and bipolar disorder. D.C. admitted that she is bipolar and that she sometimes suffers from manic episodes, which prevents her from thinking clearly. Although she denied that she was suffering from a manic episode in March 2009 when the allegations against defendant were first made, Dr. Biersbach would have been unable to refute this. Defense counsel was also able to question D.C. about her admission that she made false allegations against defendant in the domestic violence proceeding and lied under oath.
We are satisfied that defendant's ability to present a defense based upon the impeachment of D.C.'s credibility was not hampered by his inability to call Dr. Biersbach to testify to disclosures the couple made during counseling sessions. He therefore failed to satisfy the "need" prong.
To satisfy the second prong of Kozlov, the evidence must be material to the issue before the court. Because the evidence relates to the credibility of a key witness, it is relevant. However, as the trial court stated, the proffered evidence of D.C.'s mental illness and prior sexual abuse casts only generalized doubt upon her credibility; it is not material to the core defense that she fabricated the evidence against him.
Finally, as we have discussed, defendant had access to information regarding D.C.'s history of mental illness, her childhood abuse, and her prior perjury wholly independent of the comparatively weaker evidence included in Dr. Biersbach's records. Although he contends that the DYFS records available to him "do not fully demonstrate the role [D.C's] mental disorders have played in her distortion of reality[, ]" the same can be said of Dr. Biersbach's records. Defendant was not precluded from exploring the sexual abuse D.C. experienced as a child to support his defense that the allegations against him suspiciously mirrored that abuse. He had access to DYFS records and relied upon them to support his motion and to cross-examine D.C. As the trial court stated, "not only [could] the information be secured from a less intrusive source, but it already has been secured and disclosed to [defendant] prior to trial."
As defendant has failed to establish the three "necessary foundations to the valid piercing" of the privilege, his motions to permit Dr. Biersbach to testify unfettered by the marriage counselor privilege were properly denied. His remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)