Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. A.R.

Supreme Court of New Jersey

July 11, 2018

STATE OF NEW JERSEY IN THE INTEREST OF A.R., a minor.

          Argued February 26, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 447 N.J.Super. 485 (App.Div. 2016).

          Frank Muroski, Deputy Attorney General, argued the cause for appellant State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Frank Muroski, Deputy Attorney General, of counsel and on the briefs).

          Alison S. Perrone, Designated Counsel, argued the cause for respondent A.R. (Joseph E. Krakora, Public Defender, attorney; Alison S. Perrone, on the briefs).

          Lawrence S. Lustberg argued the cause for amicus curiae John J. Gibbons Fellowship in Pubic Interest and Constitutional Law at Gibbons P.C. (Gibbons, attorneys; Lawrence S. Lustberg and J. David Pollock, on the brief).

          ALBIN, J., writing for the Court.

         In the sexual assault trial of fourteen-year-old "Alex," the family court admitted into evidence pursuant to N.J.R.E. 803(c)(27) -- the tender-years exception to the hearsay rule --the video-recorded statement that seven-year-old "John" gave to police, in which he alleged that Alex had sexually touched him on a school bus. John, who suffers from severe developmental disabilities, who during out-of-court and in-court questioning was unable to distinguish between fantasy and reality, and who was declared incompetent as a witness by the court, was permitted to testify pursuant to the incompetency proviso of N.J.R.E. 803(c)(27). The Court considers that determination, as well as the family court's adjudication of Alex as delinquent of committing sexual assault.

         Fourteen-year-old Alex was charged in a juvenile delinquency complaint with committing sexual assault "by contact" on seven-year-old John. The complaint specifically alleged that Alex "on one occasion rubbed [John's] penis with his hand." The alleged assault occurred on a bus transporting eighteen special-needs children home from summer school.

         The family court conducted a hearing to determine the admissibility of the statements John made to a detective. John's mother's cousin ("Grace") testified that on July 3, 2014, she went to the bus stop to pick up John. While walking home, John told Grace that "[Alex] touched his belly button and pee-pee." Grace did not ask any follow-up questions. Grace later called John's mother and had no further discussion with John about the subject. John's mother reported the incident to the police five days later. Detective Abromaitis testified about his fourteen-minute recorded interview from July 21, 2014.

         The interview began with Detective Abromaitis introducing himself. In response to the first question, "What's up," John stated, "[Alex] touched my pee-pee." John indicated that the touching occurred "[u]nderneath my clothes." However, when John showed the detective where he was touched using anatomical dolls, without prompting, he stated, "He touched at me by accident." On an anatomical drawing, John referred to his "butt" as both his belly button and his behind, and at one point he referred to his navel as his "dingaleg." In response to a leading question, John recalled that he was at home when the touching occurred, until the detective asked another leading question, and then John recalled that he was on the bus. John told the detective that he lived with "Chowder and Clarence" (cartoon characters), his "mom," his friend Jacob, and "dragons, too."

         The family court ruled that John's recorded statement would be admissible at trial, provided that John was available to testify. The next day, at the bench trial, John had difficulty responding to simple questions in an accurate or truthful way. The court concluded that John was not "competent to testify." Nevertheless, pursuant to N.J.R.E. 803(c)(27), the court allowed the prosecutor to proceed with John's direct examination. John could convey little reliable information. Although it was undisputed that John took a bus to summer school, he responded to a question about how he went to school by stating, "I was walking on the street."

         Although the family court found that John lacked "competency" as a witness, it declined to exclude from evidence John's statements to the detective or to dismiss the case. The State recalled John to the stand. He continued to have difficulty answering simple questions. For example, he stated "It's right," if the prosecutor referred to a spider as a flower, and in response to a leading question, indicated that the color black might be red. John stated that Alex, whom he identified in the courtroom, touched him on "my clothes, my pee-pee and my butt." However, John stated that a little boy named Alex sat near him and that the little boys and big boys were separated on the bus.

         The defense presented three witnesses. The bus aide stated that the "big kids," such as Alex, sat in the back of the bus and the "small kids" sat in the front -- and that she sat in the middle, separating the two groups. She maintained that Alex did not sit with John. The school bus driver corroborated the seating arrangement and did not see or hear anything that gave him concern. The transportation liaison confirmed that two children named Alex were on the bus that day, one of whom went to elementary school and the other to high school.

         The family court adjudicated Alex delinquent. Alex appealed. The Appellate Division held that John was effectively unavailable for cross-examination, and therefore the admission of his statement to the detective violated Alex's federal confrontation rights. 447 N.J.Super. 485, 490 (App.Div. 2016). The panel did not address any state-law evidentiary claims and remanded to the family court to assess whether the State's remaining evidence is sufficient to prove the adjudication beyond a reasonable doubt. Id. at 525. The Court granted the State's petition for certification. 230 N.J. 425 (2017).

         HELD: The Court reverses Alex's delinquency adjudication on state-law grounds, concluding that the video-recorded statement did not possess a sufficient probability of trustworthiness to justify its introduction at trial under N.J.R.E. 803(c)(27). Striking the juvenile's recorded statement from the record does not leave sufficient evidence in the record to support, on any rational basis, the adjudication of delinquency against Alex. Accordingly, the sexual assault charge must be dismissed. The Court concludes that the incompetency proviso of the present version of N.J.R.E. 803(c)(27) is flawed and remands that rule for review to the Supreme Court Committee on the Rules of Evidence.

         1. The Court does not address the constitutional issues reached by the Appellate Division because this matter can be resolved by resort to New Jersey's evidence rules, and courts should not reach a constitutional question unless imperative to the litigation. (pp. 18-19)

          2. The source of the current tender-years exception, including its incompetency proviso, is State v. D.R., 109 N.J. 348 (1988). In D.R., the Court recognized that, in a child-sex-abuse prosecution, "testimony by the victim is often the indispensable element of the [State's] case," and determined that the evidence rules needed an additional "exception[] to the hearsay rule . . . ." Id. at 358. The Court also expressed concern that a child's incompetency would present an insurmountable obstacle to the admission of the child-victim's out-of-court statement. Id. at 369-70. That concern gave rise to the incompetency proviso. (pp. 19-22)

         3. The incompetency proviso proposed in D.R. and adopted as a rule read as follows: "no child whose statement is to be offered in evidence . . . shall be disqualified to be a witness . . . by virtue of the requirements of paragraph (b) [of the competency rule]." Id. at 378. It rendered inoperative only paragraph (b) of the competency rule; it did not allow a child deemed incompetent under paragraph (a) to testify. With the 1993 renumbering of the Rules of Evidence, the reference to paragraph (b) was removed. The proviso now reads: "no child whose statement is to be offered in evidence . . . shall be disqualified to be a witness in such proceeding by virtue of the requirements of [the competency rule]." The consequences of this expansion are significant and far-reaching because it permits the testimony of a child victim not only incapable of understanding the duty to tell the truth (paragraph b) but also incapable of distinguishing between fantasy and reality and of expressing himself in a manner to be understood by a judge or jury (paragraph a). The record concerning the promulgation of N.J.R.E. 803(c)(27) provides no clear explanation for the removal of the reference to paragraph (b). Accordingly, the Court requests that the Supreme Court Committee on the Rules of Evidence consider whether N.J.R.E. 803(c)(27) should be amended. (pp. 22-26)

         4. N.J.R.E. 803(c)(27), as presently constructed, did not authorize the admission of John's video-recorded statement. Before admitting a child's out-of-court statement, the trial court must determine whether "there is a probability that the statement is trustworthy." N.J.R.E. 803(c)(27). The Court has identified "a non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse, including [the] mental state of the declarant . . . ." State v. P.S., 202 N.J. 232, 249 (2010). Clearly, one consideration in assessing a child's mental state must be whether the child is able to distinguish between fantasy and reality and whether the child can communicate in a way that shows the child has the mental capacity to tell the truth and to be understood by the trier of fact. A judicial declaration that a child is incompetent to testify should also have some bearing on determining the admissibility of a child's out-of-court statement. Given the totality of the circumstances, the trustworthiness of John's video-recorded statement is not supported by sufficient credible evidence in the record. John's video-recorded statement was wrongly admitted into evidence. (pp. 27-33)

         5. After excising from the record John's video-recorded statement, the remaining evidence --even when viewed in the light most favorable to the State -- is insufficient to support a sexual-assault adjudication beyond a reasonable doubt. The remaining evidence consists of John's incompetent testimony and Grace's hearsay testimony that, as John walked home with her after exiting the bus, he said, "[Alex] touched his belly button and pee-pee." The statement does not tell us whether the alleged touching was accidental, which of the two Alexes did the touching, or when and where the incident occurred. In addition, no competent evidence corroborates John's single statement made to Grace. The remaining evidence is insufficient to support the sexual-assault adjudication against Alex. (pp. 33-35)

         REVERSED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          OPINION

          ALBIN, JUSTICE

         In the sexual assault trial of fourteen-year-old Alex, the family court admitted into evidence pursuant to N.J.R.E. 803(c)(27) -- the tender-years exception to the hearsay rule --the video-recorded statement that seven-year-old John gave to police, in which he alleged that Alex had sexually touched him on a school bus.[1] John, who suffers from severe developmental disabilities, who during out-of-court and in-court questioning was unable to distinguish between fantasy and reality, and who was declared incompetent as a witness by the court, was permitted to testify pursuant to the incompetency proviso of N.J.R.E. 803(c)(27). According to the proviso, "no child whose statement is to be offered in evidence pursuant to [N.J.R.E. 803(c)(27)] shall be disqualified" to testify, even though the child witness is deemed incompetent under the requirements of N.J.R.E. 601.

         Based on John's recorded statement, his incompetent testimony, and an utterance he made to his mother's cousin, the family court adjudicated Alex delinquent of committing sexual assault.

         The Appellate Division found that John's incompetency, as evident from his inability to answer truthfully even simple questions, rendered him unavailable for cross-examination. The Appellate Division therefore determined that the admission of the juvenile's in-court testimony and the video-recorded statement violated Alex's confrontation rights under the Sixth Amendment, as articulated in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The Appellate Division did not disturb the juvenile adjudication but rather remanded to the family court to determine whether sufficient evidence remained to support that adjudication.

         We now reverse Alex's delinquency adjudication on state-law grounds. We conclude that the juvenile's video-recorded statement was not admissible because the statement did not possess a sufficient probability of trustworthiness to justify its introduction at trial under N.J.R.E. 803(c)(27). The resolution of the admissibility of the recorded statement based on our evidence rules ultimately renders unnecessary the Appellate Division's constitutional analysis and determination. Striking the juvenile's recorded statement from the record does not leave sufficient evidence in the record to support, on any rational basis, the adjudication of delinquency against Alex. Accordingly, we reverse the judgment of the Appellate Division and hold that the sexual assault charge must be dismissed.

         The Appellate Division's critique, however, has led us to conclude that the incompetency proviso of the present version of N.J.R.E. 803(c)(27) is flawed, and therefore we remand that rule for review to the Supreme Court Committee on the Rules of Evidence.

         I.

         A.

         Fourteen-year-old Alex was charged in a juvenile delinquency complaint with committing an act of sexual assault "by contact" on seven-year-old John on July 3, 2014 in violation of N.J.S.A. 2C:14-2(b). The complaint specifically alleged that Alex "on one occasion rubbed [John's] penis with his hand." The alleged assault occurred on a bus that was transporting eighteen special-needs children home from summer school. John has been diagnosed with autism and attention deficit hyperactivity disorder (ADHD), and his intellectual development corresponded to that of a three-year-old.

         The State's case depended largely on a comment made by John to his mother's cousin Grace after he exited the bus, John's recorded statement given to a detective eighteen days later, and John's testimony at the juvenile trial. Alex's defense consisted of a general denial that the assault occurred. Among other witnesses, Alex presented the bus aide and the bus driver, both of whom suggested that the assault could not have happened as described by John, given the seating arrangements on the bus and their observations that day.

         B.

         The family court conducted a Rule 104 hearing, [2] pursuant to N.J.R.E. 803(c)(27), to determine the admissibility of the statements John made to Grace and the detective. The only issue before this Court is the admissibility of John's recorded statement to the detective.

         At the hearing, the State called Grace and Detective David Abromaitis of the Special Victims Unit of the Hudson County Prosecutor's Office, and the defense called Dr. Gerald Cooke, a board-certified forensic psychologist.

         Grace testified that on July 3, 2014, she went to the bus stop to pick up John from summer school. She arrived after John had exited the bus. When she first observed John, Alex was holding him by the hand. That struck Grace as unusual, and she told the bus driver that he should not have let John off the bus until she arrived. While walking home, John told Grace that "[Alex] touched his belly button and pee-pee." Grace did not ask any follow-up questions, such as when and where the touching occurred or about the circumstances of the event. Grace later called John's mother and had no further discussion with John about the subject.

         John's mother reported the incident to the Hoboken Police Department five days later.

         Detective Abromaitis testified about his fourteen-minute recorded interview at the Hudson County Prosecutor's Office on July 21, 2014 -- eighteen days after the first report to Grace. The recording was played in its entirety at the hearing.

         The interview began with Detective Abromaitis introducing himself as Dave, a police officer, and in response to the first perfunctory question, "What's up," John stated, "[Alex] touched my pee-pee." Detective Abromaitis explained that he did not conduct a pre-interview of John and met him for the first time when John entered the interview room -- and therefore did not prompt John's response. When the detective followed up and asked who touched him, John responded, "[Alex] touched my pee-pee. He touched my belly button. He touched my belly button, and everybody all laughed at me." John indicated that the touching occurred "[u]nderneath my clothes." He also stated, "He touched my eye. He touched my hand. He touched my eyebrows. He touched my nose like this. He touched my mouth. He touched my legs." However, when John showed the detective where he was touched using anatomical dolls, without prompting, he stated, "He touched at me by accident." On an anatomical drawing, John referred to his "butt" as both his belly button and his behind, and at one point he referred to his navel as his "dingaleg."

         In response to a leading question, John recalled that he was at home when the touching occurred, until the detective asked another leading question, and then John recalled that he was on the bus. That colloquy is set forth below:

[DETECTIVE ABROMAITIS:] Okay[.] [C]an you tell me where you were when [Alex] touched you? Were you at home?
[JOHN:] Yes, I was at home.
[DETECTIVE ABROMAITIS:] Or were you somewhere else?
[JOHN:] Somewhere else [inaudible].
[DETECTIVE ABROMAITIS:] So where were you? When you say somewhere else, where's somewhere else?
[JOHN:] I don't know.
[DETECTIVE ABROMAITIS:] Okay[.] [W]ere you on the bus?
[JOHN:] Yes[.] [Y]es.[3]

         Detective Abromaitis never asked John where he was seated on the bus or whether he was seated next to Alex.

         John told the detective that he lived with "Chowder and Clarence" (cartoon characters), his "mom," his friend Jacob, and "dragons, too." In speaking with John's mother, the detective learned that they lived only with John's brother, Joe.

          Dr. Cooke criticized Detective Abromaitis's interview techniques. He found fault with the detective's failure to inquire whether John could distinguish between the truth and a lie or between fantasy and reality, particularly given that the child "cognitively" was more like a three-year-old than a seven-year-old. Dr. Cooke also criticized the detective for asking leading questions that suggested that the incident occurred on the bus and for not making further inquiry when John said the touching was "by accident."

         The family court ruled that John's recorded statement was sufficiently "trustworthy on the basis of the time[, ] content and circumstances of the statement" and therefore would be admissible at trial, provided that John was available to testify. Although the court agreed with Dr. Cooke that Detective Abromaitis broke with the "ideal" protocol by not asking John "any questions to determine whether or not he understood the difference between telling the truth and telling the lie" and acknowledged that the detective asked an improper leading question that suggested to John that he was on the bus, it nevertheless found "that the statement is probably trustworthy in the language of [N.J.R.E. 803(c)(27)]."

         The court also conditionally admitted into evidence the comment John made to Grace, finding that the statement "was completely spontaneous" and "probably trustworthy in the totality of the circumstances."

         C.

         The next day, the family court presided over the bench trial on the sexual assault charge lodged against Alex. The first witness called by the State was John. The court asked John some preliminary questions to explore his competency to testify under N.J.R.E. 601.

         The inquiry made clear that John had difficulty responding to simple questions in an accurate or truthful way. For example, the court showed John a red toy. When asked whether if told the red toy was green that would be the truth, John replied, "yes." When asked the same question again, he said, "no." John also identified a tie as red, but when asked if told that the tie was green, whether that would be the truth, he responded, "yes." The colloquy further developed that John had difficulty distinguishing between what is real and not real.

[COURT:] And what kind of toy is the other one, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.