State v. Bethune

• Decision Date: 01 August 1990
• Citation: 121 N.J. 137,578 A.2d 364
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph BETHUNE, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 137

121 N.J. 137

578 A.2d 364

STATE of New Jersey, Plaintiff-Respondent, v. Joseph BETHUNE, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 3, 1990.

Decided Aug. 1, 1990.

Roderick Taylor Baltimore, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Roderick Taylor Baltimore and Alan I. Smith, Designated Counsel, on the briefs).

Chana Barron, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

GARIBALDI, J.

In this appeal, as in State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990), also decided today, we consider the application of the fresh-complaint rule. This case involves the application of that rule to cases involving young children. Three issues are presented: (1) whether statements elicited from children who after being questioned complain of having been sexually abused retain the degree of self-motivation necessary to qualify under the fresh-complaint rule; (2) how much detail is permissible as part of a fresh complaint; and (3) what should the trial court charge to guide the jury in its weighing of fresh-complaint evidence.

I

On April 21, 1983, Mary Bossack, a representative of the Division of Youth and Family Services ("D.Y.F.S.") took R.B., age five, to Newark's United Hospital Medical Center to ascertain whether the child had been sexually abused. D.Y.F.S. had been alerted to the possibility of abuse because R.B.'s eight-year-old sister, S.M., had entered Newark Beth Israel Medical Center four days earlier, complaining of abdominal pain. A physical examination revealed she had been sexually assaulted and infected with gonorrhea. Joseph Bethune, who lived in the household with the children and was the mother's romantic companion, was suspected of having perpetrated the sexual abuse. Ms. Bossack began an investigation by taking R.B. and her three-year-old sister to the hospital.

At the hospital, Maria Feliciano, a social worker, asked the child whether she had been molested. R.B. denied having been sexually abused. Dr. Renee Baskerville, a staff doctor, then gave R.B. a complete physical examination. She found redness around the vaginal entrance, two tears in the hymen, and no unusual marks in the anal area. The physical exam did not provide conclusive evidence of sexual abuse, and the child denied once more any improper treatment at the hands of Joseph Bethune.

Dr. Baskerville did notice, however, that the child responded atypically to the gynocological exam. She was not reluctant to be examined and showed no concern when Dr. Baskerville inserted her finger into her vagina. Dr. Baskerville found this lack of response abnormal in a young child and possibly indicative of the child having been subject to sexual abuse. She admitted R.B. to the hospital and referred the case to Peggy Foster, a social worker at the hospital, for further investigation.

On April 22, 1983, Ms. Foster interviewed the child in the hospital's playroom and used anatomically correct dolls to engage the child in conversation. Ms. Foster asked R.B. to identify by name different body parts, such as the nose, the mouth, and the genitalia. R.B. labeled the vagina the "privates" and the penis the "dicky." Ms. Foster then pulled up the doll's dress and asked the child whether anyone had touched her vagina. The child responded that "Joey had put his dicky in her privates many times," and demonstrated this by placing the male doll on top of the female doll. Ms. Foster asked R.B. the number of times she had been assaulted and the child counted ten times on the social worker's fingers. R.B. also said she had told her mother, Patricia McQueen, of the abuse and that her mother had said she would make defendant leave the household. However, she never did. In addition, the child complained of painful urination after the incident.

As a result of the hospital's finding of sexual abuse, R.B. was taken from her home and placed in foster care, and Joseph Bethune was indicted on two counts of aggravated sexual assault. At trial, R.B. testified to the alleged assault. Specifi- cally the child detailed an incident that had occurred approximately one to two weeks prior to her admission to the hospital in which defendant had entered the bedroom where she slept with her two sisters, made her lie on her back, and inserted his penis into her vagina and anus.

Ms. Bossack, Ms. Feliciano, and Ms. Foster also reiterated their versions of the facts. Ms. Foster's testimony-regarding what the child had told her was admitted into evidence under the fresh-complaint rule. Dr. Baskerville testified about her medical examination of R.B., and also added her expert opinion, based on three-years experience as a pediatrician, that her physical findings, although not conclusive of abuse, were also not inconsistent with the possibility of sexual abuse.

Joseph Bethune took the stand to dispute ever having abused R.B. Mr. Bethune's pastor testified to defendant's good character, even though he admitted not having known him during the time the abuse allegedly occurred. Mr. Bethune's sister and R.B.'s grandmother also testified to their belief that Ms. McQueen was a good mother and that Mr. Bethune was good to the children. Finally, Patricia McQueen herself took the stand and denied ever having known that Joseph Bethune was abusing the children. At one point, however, she testified that she regretted not having asked him to leave the household, in order to eliminate all the subsequent troubles.

The jury convicted defendant on two counts of aggravated sexual assault. The Appellate Division affirmed the conviction. We granted defendant's petition for certification and summarily remanded the matter to the Appellate Division "for clarification of its disposition of the 'fresh complaint' issues raised by defendant...." 114 N.J. 304, 554 A.2d 857 (1988). We retained jurisdiction.

On remand, the Appellate Division again affirmed defendant's conviction. 232 N.J.Super. 532, 557 A.2d 1025 (1989). The Appellate Division held that because an abused and troubled young child may be naturally reluctant to discuss a traumatic sexual incident, a complaint "made in response to questioning need not be fatal to admissibility." Id. at 537, 557 A.2d 1025. Instead, the trial court should instruct the jury that in weighing the value of the complaint, it should consider all the relevant factors surrounding the complaint, including the circumstances under which the complaint has been made, e.g., whether in response to questioning or volunteered. Finally, the court held that Ms. Foster's testimony was not overly descriptive and that the jury's instructions on fresh complaint were not sufficiently erroneous to merit a new trial.

II

A. Complaint elicited through questioning

New Jersey courts have been inconsistent regarding whether a statement made by a child victim as a result of questioning qualifies under the "fresh complaint" rule. See State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990), also decided today, in which we trace the history of the fresh-complaint rule and the current rule in New Jersey. In State v. J.S., 222 N.J.Super. 247, 536 A.2d 769 (App.Div.), certif. denied, 111 N.J. 588, 546 A.2d 513 (1988), the Appellate Division held that a mother's testimony regarding her daughter's sexual abuse was inadmissible under the "fresh complaint" rule. In that case, the child's mother testified that when she had first broached the subject with her daughter, the child had wept and had refused to talk about it. The mother had then asked the child specifically if the defendant had touched or penetrated different parts of her body. The child had merely responded "yes" or "no" to the questions but had not elaborated. The child had never made an actual statement but had merely agreed or disagreed with her mother's accusations. The Appellate Division stated:

While the methods employed by Mrs. M. to find out what had happened to her daughter were certainly understandable, our concern is whether the child's out-of-court responses satisfy the exacting standards for admissibility under a rule of evidence which permits such testimony only to demonstrate that the victim made a complaint.... In our view, to qualify as a complaint, the victim's statements must at least be self-motivated and not extracted by interrogation.

[Id. at 253, 536 A.2d 769].

In contrast, the court in State v. Kozarski, 143 N.J.Super. 12, 16-17, 362 A.2d 598 (App.Div.), certif. denied, 71 N.J. 532, 366 A.2d 687 (1976), reasoned that even if it were true that the child's statements regarding sexual abuse had been elicited by his mother, it would not matter because the child had made a spontaneous complaint to a friend and playmate within one or two days of the alleged assault. Similarly, in State v. Balles, 47 N.J. 331, 221 A.2d 1 (1966), cert. denied and appeal dismissed, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1967), we admitted a mother's testimony under the fresh-complaint exception, without even noting that the complaint had been elicited through questioning. The child in the case had allegedly been sexually abused by her tutor. When her father had picked her up at the tutor's home, the child had appeared agitated. When he asked her what was wrong, she first refused to answer and then said that she did not want to talk about it. When the child arrived home, she was again questioned by her mother, and said that defendant had fondled her.

The inconsistencies in the application of the fresh-complaint exception are due in part to different fact situations and the courts' flexibility in applying "fresh complaint" strictures to cases involving young children. In deference to children's special vulnerability to being cajoled and coerced into remaining silent by their abusers, courts allow children additional time to make a fresh complaint. In State v. Hummel, 132...