State v. G.E.P., 080520 NJSC, A-4-19

Docket Nº:A-4-19
Opinion Judge:SOLOMON JUSTICE
Party Name:State of New Jersey, Plaintiff-Appellant, v. G.E.P., Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. R.P., Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. C.P., Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. C.K., Defendant-Respondent.
Attorney:Lila B. Leonard, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the briefs). John McNamara, Jr., Chief Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Morris County Prosecutor, attor...
Judge Panel:SOLOMON, J., CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion.
Case Date:August 05, 2020
Court:Supreme Court of New Jersey

State of New Jersey, Plaintiff-Appellant,

v.

G.E.P., Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.

R.P., Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.

C.P., Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.

C.K., Defendant-Respondent.

No. A-4-19

Supreme Court of New Jersey

August 5, 2020

Argued March 30, 2020

On certification to the Superior Court, Appellate Division, whose opinion is reported at 458 N.J.Super. 436 (App. Div. 2019).

Lila B. Leonard, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the briefs).

John McNamara, Jr., Chief Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Morris County Prosecutor, attorney; John McNamara, Jr., of counsel and on the briefs).

Ian C. Kennedy, Assistant Prosecutor, argued the cause for appellant (Mark Musella, Bergen County Prosecutor, attorney; Ian C. Kennedy, and William P. Miller, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs, and Catherine A. Foddai, Legal Assistant, on the briefs).

Lawrence S. Lustberg argued the cause for respondent G.E.P. (Gibbons, attorneys; Lawrence S. Lustberg and Daniel B. Weinstein, and Anne M. Collart on the briefs).

Rochelle M. Watson, Deputy Public Defender, argued the cause for respondent R.P. (Joseph E. Krakora, Public Defender, attorney; Rochelle M. Watson, of counsel and on the briefs).

Kelly Anderson Smith argued the cause for respondent C.P. (Kelly Anderson Smith, of counsel and on the briefs).

Stefan Van Jura, Assistant Deputy Public Defender argued the cause for respondent C.K. (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the briefs).

Tess Borden argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Borden, Alexander Shalom, and Jeanne LoCicero, on the brief).

SOLOMON, J., writing for the Court.

Child Sexual Abuse Accommodation Syndrome (CSAAS) includes five "preconditions" that purportedly explain behaviors exhibited by sexually abused children: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and retraction. In State v. J.L.G., the Court rejected the use of CSAAS evidence -- with the exception of certain testimony concerning delayed disclosure -- as lacking "a sufficiently reliable basis in science to be the subject of expert testimony." 234 N.J. 265, 272 (2018). In these consolidated appeals, the Court considers whether J.L.G.'s invalidation of CSAAS evidence should apply retroactively.

G.E.P., R.P., C.P., and C.K. were convicted and sentenced for committing sexual crimes against children.

The State claims that G.E.P. repeatedly sexually assaulted "Jane" during a ten-year period beginning in the mid-1980s. According to Jane, the abuse began when she was six or seven years old and G.E.P. was twenty-six or twenty-seven and living with Jane and her mother. According to Jane, in addition to other forms of abuse, G.E.P. occasionally bound her breasts with Velcro straps, placed rubber bands and clothespins on her nipples, and made her wear bras with holes cut out. Years later, Jane reported her sexual abuse to police, allegedly out of fear that G.E.P. would abuse his newly adopted daughter. At the urging of police, Jane agreed to call G.E.P. and permitted a detective to record the conversation. While G.E.P. did not admit to any specific sexual activity on the recorded call with Jane, his responses were damning, compelling evidence of guilt. A subsequent search of G.E.P.'s office revealed a plastic bag containing a bra and a toiletry bag containing rope, Velcro straps, rubber bands, and clothespins. During Jane's testimony, the State played audio of the recorded phone call between Jane and G.E.P. The State also introduced the items seized from G.E.P.'s office, and Jane testified that the items were similar to those G.E.P. had used. Over objections by G.E.P., the trial court allowed the State to present expert CSAAS testimony and provided CSAAS instructions to the jury that largely tracked the model jury charge then in effect. G.E.P. was convicted of six counts of first-degree aggravated sexual assault and seven counts of second-degree sexual assault.

R.P. married "Susan's" mother. Susan claims that R.P. began regularly sexually abusing her when she was in third grade and continued to abuse her until she informed her mother two years later. R.P. was arrested. Susan later recanted but then reaffirmed her allegations. At trial, the State presented testimony from Susan and the detective from the Prosecutor's Office who initially interviewed Susan. The State also presented an expert witness to provide background information about CSAAS and describe its five components. R.P. did not object to the State's use of CSAAS evidence at trial but did challenge the acceptance of CSAAS testimony on cross-examination and presented a counter-expert. The court provided model CSAAS instructions. A jury convicted R.P. of three counts of first-degree aggravated assault, four counts of second-degree sexual assault, and two counts of second-degree endangering the welfare of a child.

"Nancy," C.P.'s stepdaughter, claimed that C.P.'s sexual abuse of her began when she was in third grade. Nancy eventually confided in her eighth-grade boyfriend about C.P.'s abuse but asked him not to disclose it for fear that the State would remove her siblings. Nancy claimed the abuse continued until later that year when she moved to Florida to live with her great aunt, to whom she also revealed C.P.'s abuse. C.P. was arrested, and his first trial ended in a mistrial when the jury deadlocked. Before C.P.'s second trial, the State and defendant each sought to introduce CSAAS expert testimony, which had not been presented during the first trial. The motion court granted both requests. At the second trial, the State presented, in addition to CSAAS testimony, the testimony of Nancy's great aunt and eighth-grade boyfriend, both of whom recounted their respective conversations with Nancy during which she disclosed C.P.'s alleged abuse. During its final jury charge, the trial court recited the model CSAAS instructions. C.P. was convicted of seven counts of first-degree aggravated sexual assault, eleven counts of second-degree sexual assault, three counts of third-degree aggravated criminal sexual contact, and one count of second-degree endangering the welfare of a child.

"Julie" testified that her abuse began when she was six years old and living in a one-bedroom trailer with C.K., her biological father, as well as her mother, younger sister, and brother. Julie detailed how C.K. would pull down her pants, touch her vagina, and digitally penetrate her at night while her mom was away at work and her younger sister was asleep. Approximately ten years after the alleged abuse began, C.K. asked Julie why she was not respecting him. Julie testified that she responded rhetorically, "Why would I respect someone who raped me[?]" About a week later, Julie confided in a friend from school about C.K.'s abuse. The friend told her mother, who reported the abuse. C.K. was later arrested and indicted. At trial, Julie testified about the abuse, her comment to C.K. about not respecting someone who raped her (which Julie's mother confirmed in her testimony), and her disclosure of the abuse to her friend. The State also presented expert CSAAS testimony. The court gave general expert witness instructions but not CSAAS instructions. The jury convicted C.K. of three counts of first-degree aggravated sexual assault, four counts of second-degree sexual assault, and two counts of second-degree endangering the welfare of a child.

Each of the defendants appealed, and the Appellate Division consolidated the cases. 458 N.J.Super. 436 (App. Div. 2019). "Because all four cases were pending on appeal at the time J.L.G. was issued," the court limited its retroactivity review to "whether pipeline retroactivity is appropriate." Id. at 446. It concluded that pipeline retroactivity "would afford defendants relief from unfair convictions, while not unduly burdening the criminal justice system." Id. at 447. The court ultimately determined that "the admission of CSAAS expert testimony in these four cases calls into question the validity of each guilty verdict" and reversed defendants' convictions. Id. at 443.

The Court granted certification. 239 N.J. 598 (2019).

HELD: When all factors bearing upon retroactivity are weighed -- whether the rule's purpose "would be furthered by a retroactive application," the State's reliance on the previous rule, and "the effect a retroactive application would have on the administration of justice," State v. Henderson, 208 N.J. 208, 300 (2011) -- pipeline retroactivity is appropriate. Considering the evidence presented in G.E.P.'s case, the admission of CSAAS testimony did not deny him a fair trial, and the Court reverses the Appellate Division's judgment as to him. As to R.P., C.P., and C.K., the CSAAS testimony bolstering the alleged victims' testimony was clearly capable of producing an unjust result, and their convictions were thus properly reversed by the Appellate Division.

1. The underlying legal question in deciding whether a holding will be applied retroactively is whether it announced a new rule of law. The Court first considered and found admissible CSAAS expert testimony in State v. J.Q., 130 N.J. 554, 556 (1993). In a series of later cases, the Court narrowed the permissible scope of CSAAS testimony but did not...

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