State v. D.R.

Decision Date09 February 1988
Citation109 N.J. 348,537 A.2d 667
PartiesSTATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. D.R., Defendant-Appellant and Cross-Respondent.
CourtNew Jersey Supreme Court
Steven M. Gilson, Designated Counsel, Union, for defendant-appellant and cross-respondent (Alfred A. Slocum, Public Defender, attorney)

Larry R. Etzweiler, Deputy Atty. Gen., for plaintiff-respondent and cross-appellant (W. Cary Edwards, Atty. Gen., attorney; Larry R. Etzweiler The opinion of the Court was delivered by

and Richard W. Berg, Deputy Attys. Gen., of counsel and on the briefs).

STEIN, J.

In this appeal we confront a serious and recurring legal issue in child sexual abuse prosecutions: the admissibility of the child's out-of-court account of the sexual assault. Defendant, convicted on three counts charging sexually abusive conduct with his two-and-one-half year old granddaughter, challenges as plain error the testimony of a non-treating psychologist that recounted the child's graphically descriptive explanation of the sexual contact. Other than the defendant's confession, which he repudiated during his trial testimony, the victim's hearsay statements were the most persuasive evidence of defendant's guilt.

Acknowledging that the victim's out-of-court statements were inadmissible under existing exceptions to the hearsay rule, the Appellate Division, relying primarily on Evidence Rule 5, adopted a "heretofore unstated" exception to the hearsay rule that would authorize admissibility of a child's out-of-court statements concerning sexual abuse if made to a parent, confidant, physician, or other professional under circumstances that afford "sufficient indicia of reliability to justify admission." State v. D.R., 214 N.J.Super. 278, 293, 296-97, 518 A.2d 1122 (1986). The court determined that the out-of-court statements in this case were inherently reliable, sustained their admissibility under the newly-adopted hearsay exception, and affirmed defendant's convictions. Id. at 298, 300, 518 A.2d 1122.

We are in full agreement with the Appellate Division's conclusion that the difficult problems of proof in child sex-abuse cases would be alleviated by a modification of the hearsay rule that addresses the admissibility of out-of-court victim statements such as the one at issue here. Our concept of the appropriate form of such a modification differs somewhat from

                that proposed by the Appellate Division.  However, we hold that the recognition of such a fundamental change in the hearsay rule solely by judicial decision is inconsistent with the procedure set forth in the Evidence Act, 1960, that involves collaboration among all three branches of government.   N.J.S.A. 2A:84A-33 to -45.  In our view, so significant a modification of the Rules of Evidence should be adopted in accordance with the prescribed statutory procedure, which as explained below we shall initiate in this opinion.  This compels the conclusion that the admission of the victim's out-of-court statement in this case, unauthorized by any existing exception to the hearsay rule, was plain error since it was clearly capable of producing an unjust result.  R. 2:10-2.  Accordingly, we reverse the conviction and remand the matter for a new trial
                
I

The material facts are set forth in detail in the Appellate Division opinion, 214 N.J.Super. at 280-84, 518 A.2d 1122, and for our purposes a brief summary will suffice. During 1983 the parents of the alleged victim, N.R., were embroiled in a bitter matrimonial proceeding. Because N.R.'s mother, who retained custody, resisted her husband's requests for visitation, an order was entered in April 1983 permitting visitation during two days each week while the child was at the home of her paternal grandparents. The final judgment of divorce, entered in December 1983, also provided for weekly visitation of N.R. by her father at the defendant's home during a visitation period beginning each Friday morning and ending Saturday evening.

In November 1983, N.R. began to exhibit behavioral changes that included tantrums and interruption of sleep. She also complained of vaginal soreness. N.R.'s pediatrician examined her in February 1984. Although he found no physical evidence of sexual abuse, he suggested to N.R.'s mother that she contact the New Jersey Division of Youth and Family Services (DYFS) Shortly thereafter, N.R. was questioned by personnel from DYFS and from the Somerset County Prosecutor's Office. This in turn led to an interrogation of defendant in February 1984 by Investigator Mazzei of the Somerset County Prosecutor's Office. Defendant initially denied any sexual contact with N.R. After Investigator Mazzei referred to specific allegations by N.R., exhibited drawings made by N.R. with circles designating areas of physical contact, and offered to play a tape recording of N.R.'s statements, defendant admitted that on one occasion in January 1984 he had engaged in sexual contact with N.R. Specifically, he acknowledged that he had inserted his penis into the child's mouth, an act of "sexual penetration," N.J.S.A. 2C:14-1(c), that constitutes aggravated sexual assault by virtue of defendant's supervisory relationship with N.R. N.J.S.A. 2C:14-2(a). He also admitted that he had allowed the child to touch and kiss his penis and to incidental contact with N.R.'s vagina, acts of "sexual contact," N.J.S.A. 2C:14-1(d), that constitute sexual assault because of N.R.'s age. N.J.S.A. 2C:14-2(b). At Investigator Mazzei's request, defendant repeated his confession so that it could be tape-recorded.

in order to investigate the possibility that acts of sexual abuse had taken place.

At trial the tape recorded confession was played for the jury. Defendant testified and repudiated his admissions. He stated that he was pressured to fabricate a confession by Investigator Mazzei's threats to resume interrogation of his granddaughter and to interrogate his wife, who had a medical history that suggested susceptibility to nervous strain. He said that the content of his statement was suggested to him by Mazzei, who assured him that the investigation would be over if he was cooperative. Defendant testified that he fabricated his statement to spare his wife and granddaughter any further involvement in the investigation.

As part of its direct case, the State sought to offer the testimony of the victim, who was then just over three years old. The trial court conducted a hearing out of the jury's presence to determine the victim's competency and concluded that she would not be permitted to testify. The court observed:

The trial court advised counsel that if the victim was found competent to testify, see Evid.R. 17, she would testify from a separate room in the presence of only the prosecuting attorney and defense counsel. Her testimony was to be seen and heard by the jury through the use of closed circuit television equipment. Defendant and his counsel would be able to communicate privately during the testimony. The procedure contemplated by the trial court has since been specifically authorized by statute. See L.1985, c. 126, § 1 (codified at N.J.S.A. 2A:84A-32.4). 1

I am not so sure she even has the ability at this age to deal with the concept of lying and telling the truth. She seems to respond to those questions on some occasions, but on other occasions she doesn't. And for that reason I don't think it would be appropriate to permit her to testify.

Aside from defendant's admissions, the most incriminating evidence at trial was the testimony of Dr. Martin Krupnick, a clinical psychologist specializing in emotional disorders resulting from incest and child sexual assaults. Dr. Krupnick was engaged by the Somerset County Prosecutor's Office. In September 1984--eight months after the sexual contact acknowledged by defendant--Dr. Krupnick interviewed N.R. on three occasions. During one of these interviews, he gave N.R. anatomically correct dolls to facilitate her ability to communicate with him. During cross-examination he acknowledged that he had requested the Somerset County Prosecutor's Office to send him the dolls after he had been informed that N.R. was able to use the dolls to explain what had happened to her. He also conceded that N.R. had been given prior opportunities to handle the dolls by people in the prosecutor's office, and that reports from that office indicated that "the child named the dolls Baby N and Grandpa R."

Dr. Krupnick testified at trial that N.R. was suffering from post-traumatic stress disorder, which he described as behavior resulting from a major traumatic event outside the normal human experience. He expressed the opinion that the trauma that caused her condition was a sexual assault. To establish the basis for Dr. Krupnick's opinion, the following testimony was elicited without objection by defendant's counsel:

Q. Other than her behavior that was reported to you, you say that you noticed specific behavior of hers yourself when you examined her that you felt was significant in formulating your diagnosis?

A. Yes. When using the anatomically correct dolls--these are dolls that are used to allow a child to facilitate an expression of what has gone on in her past experience, and using these anatomically correct dolls, she was able to act out During that time she showed a lot of anxiety, fear. She was very uncomfortable and requested that we terminate rather quickly from that part of the examination.

and demonstrate a sexual assault, specifically talked about the penis being placed in the mouth of the young female.

Q. Did she use the doll as a specific person?

A. Yes. She named the male doll Grandpa [R] doll and the female doll baby [N].

At the conclusion of the trial defendant was found guilty of aggravated sexual assault, N.J.S.A. 2C:14-2(a), sexual assault, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The trial court imposed...

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