599 A.2d 172 (N.J.Super.A.D. 1991), State v. J.Q.

Citation:599 A.2d 172, 252 N.J.Super. 11
Opinion Judge:[10] Long
Party Name:STATE of New Jersey, Plaintiff-Respondent, v. J.Q., Defendant-Appellant.
Attorney:[7] Wilfredo Caraballo, Public Defender, attorney for appellant (Amy Gershenfeld Donnella, Designated Counsel, of counsel and on the briefs).
Case Date:November 14, 1991
Court:Superior Court of New Jersey
 
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599 A.2d 172 (N.J.Super.A.D. 1991)

252 N.J.Super. 11

STATE of New Jersey, Plaintiff-Respondent,

v.

J.Q., Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

November 14, 1991

Page 173

Submitted May 1, 1991.

Page 174

[252 N.J.Super. 14] Wilfredo Caraballo, Public Defender, for defendant-appellant (Amy Gershenfeld Donnella, Designated Counsel, of counsel and on the briefs).

Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Cherrie Madden Black, Deputy Atty. Gen., of counsel and on the brief).

Before Judges KING, LONG and STERN.

The opinion of the court was delivered by

LONG, J.A.D.

I

We are called upon here to determine the extent to which expert evidence may be utilized in a child sex abuse case to [252 N.J.Super. 15] shore up a victim-witness's testimony. Defendant, J.Q., who was convicted of a series of sex crimes against his young daughters, N.Q. and C.Q., claims that he was denied a fair trial because of the improper admission of expert testimony which bolstered the credibility of the children. 1 At issue is the admission of testimony as to the Child Sexual Abuse Accommodation Syndrome (CSAAS), other so-called syndrome evidence and expert opinion that the children's statements that they had been sexually abused were truthful.

We hold that CSAAS evidence is generally reliable to explain secrecy, belated disclosure and recantation by a child sex abuse victim; that syndrome evidence, including CSAAS, is not reliable to prove the occurrence of sexual abuse, and that absent a question of capacity, a social science expert lacks the qualifications to render an opinion as to the truthfulness of a statement by another witness. Because the expert in this case testified before the jury as to syndrome evidence to prove that sex abuse occurred; opined as to the truthfulness of the children (and their mother), and rendered the opinion that the children were abused based in great measure upon these two interdicted classes of evidence, we are satisfied that the admission of her testimony was error clearly capable of producing an unjust result. 2 We thus reverse and remand the case for a new trial. In this opinion, we will attempt to distinguish between admissible and inadmissible expert behavioral science evidence in a child sexual abuse case. [252 N.J.Super. 16] II

After a jury trial, defendant was convicted on count one of Essex County Indictment No. 3069-7-87 of first-degree aggravated sexual assault upon his daughter, C.Q., then seven years of age, 3 by vaginal penetration, contrary to the provisions of N.J.S.A. 2C:14-2a(1). On count two, defendant was convicted of fellatio upon C.Q.--also first-degree aggravated assault--contrary to N.J.S.A. 2C:14-2a(1), and on count three, of sexual conduct which would impair or debauch the morals of C.Q., while defendant had a legal duty of caring for her, in violation of N.J.S.A. 2C:24-4. On counts four, five, six and seven, defendant was convicted of having committed aggravated sexual assault upon his daughter, N.Q., then six years of age, 4 by vaginal penetration, anal penetration, fellatio and

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cunnilingus, all contrary to the provisions of N.J.S.A. 2C:14-2a(1). On count eight, defendant was convicted of engaging in sexual conduct which would impair or debauch the morals of N.Q., while he had a legal duty of caring for her, in violation of N.J.S.A. 2C:24-4. Defendant received an aggregate custodial term of 30 years with ten years of parole ineligibility. An appropriate Violent Crimes Compensation Board Penalty was also imposed.

III

Defendant lived with C.W. for approximately nine years. Although they never married, they had two daughters: C.Q. born in 1977, and N.Q., born in 1979. Throughout 1984, the time period covered in the indictment, defendant and C.W. lived with their two daughters in an apartment in Newark, New [252 N.J.Super. 17] Jersey. The parties separated in late 1985 or early 1986. C.W. married "Carlos" in 1985, and defendant has also married since the separation.

Like their separation, the parties' relationship was acrimonious and even violent--both parties testified that defendant frequently hit C.W. In 1977, defendant had an affair, and C.W. surprised defendant and his paramour in the family apartment. C.W. beat up the woman friend, hit defendant, and according to him, told him she would "make him pay."

Defendant and C.W. apparently separated one or more times before the final breakup--in December 1984--according to C.W. because defendant was "fooling around." Defendant went to Puerto Rico to visit his family. When he returned, C.W. was pregnant, and they argued about whether the child was his. Defendant's suspicions were confirmed when C.W. testified at trial that J., born in 1985, was not defendant's child.

The parties finally separated at the end of 1985 or the beginning of 1986, after defendant found C.W. in their apartment with another man. Defendant and C.W. battled until the end. For example, N.Q. and defendant both described an incident where defendant returned to the apartment and hit C.W. in the stomach with a hammer. When he dropped the tool, C.W. retrieved it, and hit him on the head with it.

Despite the stormy relationship between defendant and C.W., defendant continued to see his daughters from the time of the separation until "sometime in 1987" when allegations about sexual misconduct came to light. For a while, defendant took the girls to his apartment in New York every weekend, although the frequency of these visits eventually dropped off and according to C.W., defendant came only "when he felt like it." C.W. explained that she never wanted to keep her daughters away from their father because she had never known her father and did not want the same to happen to N.Q. and C.Q. Indeed, there was some testimony that C.W. insisted that defendant assume some responsibility for N.Q. and C.Q. Defendant [252 N.J.Super. 18] stated that once C.W. came to his apartment to ask why he did not visit the girls. He said she insisted that he take them for the weekends because she was young and needed to go out.

These visits came to an end when N.Q. and C.Q. disclosed that defendant had committed sexual acts with them. These allegations surfaced "sometime in 1987." C.W. was in her bedroom watching television, and her three daughters were in their bedroom playing, when she heard a loud slap. Her youngest daughter had slapped N.Q. and left a mark on her face. N.Q. was on her knees kneeling over J., and while C.W. at first thought they were just playing "horsey back riding," J.Q. was crying and said N.Q. tried to pull down her panties and touch her "butt." C.W. asked N.Q.: "who told you to pull someones [sic ] panties [?]." At first N.Q. did not want to say but then she stated that "it starts with d," and finally she said it was d-a-d. C.W. asked her if she meant her stepfather or her real father, and N.Q. replied her father. C.Q. then added that her father did things to her too but they did not want to tell because he threatened to hurt C.W. C.W. told the girls that it was important not to lie and they denied that they were lying. C.W. asked them to use a baby doll to show what had happened to them, and after this she was convinced that they had been sexually

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abused. C.W. eventually took the children to her doctor, and then to the Division of Youth & Family Services. C.W. also testified that before these disclosures she had noticed that N.Q. had a vaginal discharge, but had attributed it to the child not changing her panties.

N.Q. and C.Q. both testified at trial, in the judge's chambers, via closed-circuit television broadcast into the courtroom. N.Q. was eight years old and in second grade when she testified in May 1988. She responded "yes" to the question as to whether she was four or five years old back in 1984, and also replied "yes" when questioned whether there "came a point in time where your daddy did things that you didn't like?" She then related that "[h]e put his d-i-c-k in my vagina." By "d-i-c-k" she [252 N.J.Super. 19] said she meant his "private parts." She said that this hurt a "little bit." He put his "d-i-c-k" in her mouth also, and "milk" came out of it. In response to whether he ever put anything on his d-i-c-k, she replied that when he was living with her mother he put some kind of chocolate syrup on it and made her lick it off. She also stated that he "french kissed" her, which she described as "when the guy puts the tongue into a woman's mouth." He also put his mouth on her vagina and licked her and put his d-i-c-k in her butt, which hurt her. He also put his finger in her vagina and moved it around. N.Q. stated that he did these things to C.Q. also, and that C.Q. saw him when he did them to her. The incidents occurred while defendant lived with them and their mother, but when her mother was out of the apartment. (At one point, N.Q. also stated that these incidents occurred when she and C.Q. visited defendant in Brooklyn.) She explained that she was not allowed to tell her mother about what was happening because she was afraid her father would hit her and C.Q. and her mother. N.Q. said that she would never lie and that, while she was mad at her father, she had loved him very much before he started doing these things.

C.Q., age ten at the time of trial and in fourth grade, also stated that defendant did things to her and her sister N.Q. which they did not like. "He put his hot dog in our private place." He put it in "a lot" and it hurt "a little bit." He also put his penis in her "back part" and this hurt. He put chocolate syrup on his penis and put it in N.Q.'s mouth. Sometimes he would tell one of them to put her mouth on his penis, and he would put his mouth on the vagina of the other. She and N.Q. never told...

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