Court: New Jersey Superior Court Appellate Division; December 16, 1986; New Jersey; State Appellate Court
Defendant was convicted of aggravated sexual assault, sexual assault, and impairing the morals of a child, receiving concurrent sentences of 15 years, 7 years, and 4 years respectively, along with a $75 penalty from the Violent Crimes Compensation Board. The victim, his 2.5-year-old granddaughter, demonstrated behavioral changes noted by her mother, including complaints of pain and disturbed sleep patterns, prompting a pediatric examination. Despite no physical signs of abuse, the pediatrician urged contacting the Division of Youth and Family Services (DYFS), leading to an investigation and cessation of the child's visits to her grandparents. After the visits stopped, the child's symptoms improved. On February 9, 1984, Detective Mazzei interviewed the defendant following a report of the child's allegations. Initially denying involvement, the defendant was shown a drawing related to the allegations and was informed about a recorded statement from the child. Upon further questioning, he disclosed an incident where, after assisting the child with bathroom needs, he exposed himself and encouraged her to touch and kiss his genitals.
Mazzei terminated an informal interview with the defendant to obtain a formal taped statement, during which the defendant reiterated his Miranda rights. In this statement, he expanded on his previous informal admission, acknowledging inappropriate physical contact with a child, N.R., including touching her vagina and oral contact, but denied ejaculation. When confronted with allegations and evidence, he initially denied wrongdoing but later agreed to provide a taped statement after being told his wife and the child would be questioned, fearing the impact on his wife’s mental health. He claimed that the details of the statement were influenced by suggestions from Mazzei.
The State's key witness, Dr. Martin Krupnick, a psychologist specializing in child sexual abuse, testified about his interviews with N.R., who was given anatomically correct dolls to express her experiences. N.R. displayed signs of acute post-traumatic stress disorder, which Dr. Krupnick attributed to the trauma of sexual assault. He noted her anxiety and discomfort during the examination, where she identified the dolls as "Grandpa [R]" and "baby [N]." A voir dire hearing found N.R. incompetent to testify due to her age, but the court ruled that her statements to Dr. Krupnick could still be admitted as evidence.
On appeal, the defendant raised three issues: (1) the trial court erred by not instructing the jury on the limited admissibility of the expert’s opinion, (2) the sentencing court abused its discretion with an excessively harsh sentence, and (3) the convictions for sexual assault and endangering the welfare of a child should be vacated as they merge with the aggravated sexual assault conviction.
Dr. Krupnick's testimony was critical, as the only evidence against the defendant was his confession, which cannot solely support a conviction without corroboration, per State v. Lucas. Corroboration requires independent proof that the confession reflects truth, alongside evidence of injury or loss. Although N.R. was unable to testify, she could express her feelings and recollections, suggesting her competency in relaying experiences. Her knowledge of sexual practices, unusual for her age, combined with Dr. Krupnick's expert analysis, justified his opinion on her psychological state as resulting from a sexual assault. According to Evid. R. 56(2), an expert may base opinions on otherwise inadmissible data, which in this instance included N.R.'s statements and her use of anatomically correct dolls. Even without hearsay exceptions for the child's statements, Dr. Krupnick's testimony still indicated that N.R. suffered from severe post-traumatic stress disorder linked to sexual trauma, providing corroborative evidence for the confession.
Regarding the hearsay objection raised by the defendant, it was noted that his counsel did not object during the trial, leading to a potential lack of plain error. Had an objection been made, the child's statements might have been excluded as substantive evidence, and the judge could have limited the jury's consideration of those statements solely to assessing the doctor's opinion. Evid. R. 6 mandates that when evidence is admissible for one purpose but not another, the jury must be instructed on its limited use. Without an objection, it must be assessed whether the judge's omission of a limiting instruction constituted an error and if that error could have led to an unjust outcome.
The court addresses the admissibility of a child's statements made to a doctor, emphasizing that these statements were significant evidence against the defendant, particularly following the defendant's confession. To uphold the verdict, it must be determined that the child's statements did not require exclusion, either because they did not constitute hearsay or fell under a hearsay exception. According to Evid. R. 62(1), a statement can be an oral, written, or non-verbal expression intended to convey meaning. The child's play with dolls, which included undressing them and simulating sexual activity, could be considered nonassertive conduct, suggesting that Dr. Krupnick's observations might not be hearsay since they did not convey an intention to express truth to him. The child's naming of the dolls, although potentially damaging to the defendant, might be interpreted as a contemporaneous statement reflecting her play rather than an assertion of past events. Thus, these statements could be admissible under Evid. R. 63(4)(a) as contemporaneous descriptions. However, the court warns that admitting these statements as non-hearsay or under the contemporaneous statement exception would challenge the integrity of the hearsay rule. The doctor’s testimony implies that the child used the dolls to express what her grandfather allegedly did to her, meaning that the jury might improperly use this information as pure hearsay. The court suggests that even with limiting instructions, the prejudicial impact of the statements could outweigh their probative value, possibly necessitating their exclusion. If admitted, limiting instructions would be essential to clarify their intended purpose. Further analysis of the admissibility of the statements is required.
The closest hearsay exception applicable to the admission of a statement regarding past conduct is Evid. R. 63(4)(b), which allows spontaneous utterances made under the stress of nervous excitement caused by an event, provided they occur in reasonable proximity to the event and without the opportunity for deliberation. However, the court in *State in the Interest of C.A.* previously chose not to expand this exception under similar facts. It is noted that while a child’s age and naivete can extend the time frame for nervous excitement, these factors cannot replace the required stress for the exception. The document references several cases illustrating that the interpretation of the rule is more restrictive compared to other jurisdictions where the standards for time and nervous stress are often relaxed.
There are historical precedents, such as Michigan's former "tender years exception," highlighting the evolution of hearsay rules for child victims. The text emphasizes that the stress requirement might be problematic in cases involving young children, as their lack of experience with sexual matters can eliminate the necessary "stress of nervous excitement," yet this does not diminish the reliability of their statements. A critical point raised is that the focus on spontaneity as a measure of reliability is flawed; many children may not perceive a sexual encounter as shocking, which can lead to a lack of the emotional response expected under the hearsay rule. This is particularly true in non-abusive contexts where parental influence might normalize inappropriate situations for the child.
A sexual incident may not be perceived as traumatic by child victims for several reasons, including a desire for affection and recognition from adult figures. In some cases, children may not exhibit shock or distress, recounting incidents casually, as demonstrated in the case of Brown v. United States, where a three-year-old reported an assault during dinner without urgency. Delays in reporting can occur due to fears of disbelief, confusion, guilt, attempts to forget, or threats from the offender, leading to silence until compelled to speak, as illustrated by a five-year-old who disclosed abuse to avoid further contact with the abuser. Children often possess a limited understanding of adult sexuality, viewing such experiences as unusual or mildly unpleasant rather than horrific. The author critiques the judicial relaxation of the "stress of nervous excitement" criterion for spontaneous statements, arguing it undermines the integrity of legal exceptions for child testimony. She advocates for a more structured approach, similar to Washington's statute, which provides a specific hearsay exception for child victims, with similar laws enacted in Arizona, Colorado, Kansas, and Utah, each incorporating varying degrees of reliability assessments and judicial discretion regarding the admission of child statements and recordings.
N.R.'s account of her trauma lacked the required 'stress of nervous excitement' essential for admissibility under Evid. R. 63(4)(b), with related distress noted only after a subsequent play session and statements made nine to ten months post-incident. The document contemplates either excluding these statements or recognizing a new hearsay exception under Federal Rules of Evidence 803(24) and 804(b)(5), and emphasizes that New Jersey's Evid. R. 5 allows for the evolution of evidence law to ascertain truth without relaxing existing rules. The classification of evidence rules as either substantive or procedural remains unclear, referenced in Busik v. Levine and Winberry v. Salisbury. Justice Schreiber in State v. Phelps defined hearsay and acknowledged that not all exceptions are enumerated within the rules, implying the existence of others through statutes and common law. While some argue against expanding evidence rules without formal amendments, the courts and legislature have historically adapted to meet emerging needs. Examples include dissenting opinions advocating for new hearsay exceptions in State v. Ginardi and State v. Kennedy, and Judge Lenox's acknowledgment of the admissibility of hearsay to interpret legislative intent in Raybestos-Manhattan, despite it not fitting established exceptions.
The New Jersey Legislature has established a 'naivete' exception for certain sexual abuse cases, specifically in the context of terminating parental rights, as outlined in N.J.S.A. 9:6-8.46a(4). This statute allows the admissibility of a child's prior statements regarding allegations of abuse or neglect, though uncorroborated statements alone cannot substantiate a finding of abuse or neglect. Courts have accepted this framework, as evidenced by New Jersey Youth, Family Serv. Div. v. S.S.
Additionally, the excerpt notes that various New Jersey statutes contain evidence rules not formally adopted through the Rules of Evidence, indicating that both common-law and legislative extensions of hearsay rules are not entirely prohibited. The admissibility of statements made by young children regarding abuse is addressed similarly in other jurisdictions, which have implemented safeguards for reliability in admitting such hearsay statements.
A recognized exception, whether termed 'naivete' or 'tender years,' is deemed necessary for cases where children disclose abuse to trusted individuals. The complaint of an abused child should meet federal reliability standards, requiring that the statement be relevant, more probative than other available evidence, and in the interest of justice. The criteria in the New Jersey statute align with these federal standards, suggesting a preferable approach to accommodating the hearsay rule without distorting its application.
A court must assess several criteria before admitting a child's statement regarding abuse or neglect. First, the statement should be made by a child of tender years about the abuse or sexual conduct, communicated to a trusted individual or professional under reliable circumstances. Second, if the child cannot testify, corroborative evidence must support the statement. Third, the opposing party must receive timely notice of the intention to present the statement for fair preparation. The court must differentiate between challenges to the witness's truthfulness and the child's credibility; if the latter is contested, the court must ensure reliability indicators exist before allowing the statement to be presented to the jury.
Additional factors for consideration include the child's age and maturity, the nature and duration of the alleged abuse, the relationship with the alleged offender, whether the statement was coerced, and the overall reliability of both the statement and the child. These factors are non-exclusive, and each case is evaluated on its unique circumstances.
In this case, factors supporting the admission of the child's statements include her naivete, the clinical context in which she relayed her experience, her knowledge of sexual practices, her distress after recounting the events, the lack of corroborating evidence from others, the defendant's confession aligning with the child's account, and the defendant's awareness of the statements, which gives him the opportunity to contest them. Thus, despite the hearsay nature of the statements, they qualify for an exception, and the trial judge's failure to issue a limiting instruction was deemed non-error.
Regarding the defendant's argument for merging convictions of aggravated sexual assault, sexual assault, and impairing the morals of a child, the court concurred on the latter charge. The merger test, based on Blockburger v. United States, allows for separate convictions from distinct sexual acts occurring in a single episode, reaffirming that separate acts can constitute separate offenses.
The defendant committed aggravated sexual assault against a victim under the age of 13 by engaging in sexual penetration, as defined under N.J.S.A. 2C:14-2a. Additional sexual acts involving the victim touching or kissing the defendant's penis, or the defendant's penis touching the victim's vagina, constituted separate violations under N.J.S.A. 2C:14-2b, allowing for multiple convictions. However, these acts were necessary to establish the offense of impairing or debauching the morals of a child under N.J.S.A. 2C:24-4a, which should not have resulted in a separate conviction given the existing convictions for the sexual acts. As a result, the conviction and associated penalties for impairing the morals of a child were vacated, while the remaining convictions and sentences were affirmed.
The trial judge imposed a presumptive prison term, justifying the decision with detailed reasoning that deemed the severity of the crime as the primary factor, outweighing the defendant's mitigating factors. No errors or abuses of discretion were found in the sentencing, except for the vacated conviction for impairing morals. The defendant's confession was influenced by polygraph results, which the trial judge appropriately excluded from the jury's consideration. The court upheld the trial judge's ruling regarding the incompetence of the child witness, aligning with precedents that do not require psychiatric evidence for very young children. Furthermore, statements made to a physician for evidence gathering purposes were deemed inadmissible under the relevant rules of evidence, as the child did not disclose events believing they were for treatment, nor was any hearsay exception applicable to sustain their admissibility.
A child's statement, made before the age of ten and describing sexual contact with another, is admissible in Washington criminal proceedings if the court establishes its reliability through a pre-jury hearing. The child must either testify or, if unavailable, the statement requires corroborative evidence. The proponent must notify the opposing party of the intent to introduce the statement ahead of time. If admitted, the jury is instructed to weigh the statement based on the child's age, maturity, nature of the statement, circumstances of its making, and other relevant factors. This admission is distinct from "fresh complaint" evidence, which serves only to support a victim's credibility, not as substantive evidence of the crime. Advance notice for such statements aligns with similar requirements in other jurisdictions and does not retroactively affect prior cases, as there is no reasonable reliance on the statements being inadmissible.
