State v. G.E.P.

• Court: New Jersey Supreme Court
• Writing for the Court: JUSTICE SOLOMON delivered the opinion of the Court.
• Citation: State v. G.E.P., 243 N.J. 362, 235 A.3d 157 (N.J. 2020)
• Decision Date: 05 August 2020
• Docket Number: 082732,A-4 September Term 2019
• Parties: 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.

243 N.J. 362

235 A.3d 157

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.

A-4 September Term 2019

082732

Supreme Court of New Jersey.

Argued March 30, 2020

Decided August 5, 2020

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, Newark, 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).

JUSTICE SOLOMON delivered the opinion of the Court.

In State v. J.Q., this Court held that expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS) could be admitted "to describe traits found in victims of such abuse to aid jurors in evaluating specific defenses." 130 N.J. 554, 556, 617 A.2d 1196 (1993). 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. Id. at 568-70, 617 A.2d 1196. In State v. J.L.G., we 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, 190 A.3d 442 (2018). In these consolidated appeals, we consider whether J.L.G.’s invalidation of CSAAS evidence should apply retroactively.

In separate trials of four defendants -- G.E.P., R.P., C.K., and C.P.¹ -- the alleged victims claimed defendants abused them as children. Prosecutors presented expert CSAAS testimony in each case to explain the alleged victims’ behaviors. Defendants, whose appeals were pending in the Appellate Division at the time we decided J.L.G., ask us to apply our decision retroactively and reverse their convictions.

The Appellate Division determined that our ruling in J.L.G. should be accorded "pipeline retroactivity" -- it should apply not only in all new trials, but also in any cases that were on direct appeal at the time J.L.G. was decided -- and reversed defendants’ convictions.

We now affirm the Appellate Division's pipeline retroactivity determination and reversal of R.P.’s, C.K.’s, and C.P.’s convictions. As to G.E.P.’s convictions, we conclude that the admission of CSAAS evidence at trial was harmless error, and we therefore reinstate his convictions.

I.

G.E.P., R.P., C.K., and C.P. were convicted and sentenced for committing sexual crimes against the children of their former romantic partners or, in the case of defendant C.K., his biological child. We glean the following facts from the trial court and Appellate Division records.

G.E.P.

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. During the trial, Jane testified that G.E.P.’s conduct progressed "from touching [her] butt to touching [her] stomach, then [her] breasts, then eventually [her] vagina ... [t]hen eventually mouth to vagina, mouth to penis, digital penetration, everything." According to Jane, 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.

Jane claimed that she and G.E.P. last had sexual intercourse when she was fifteen years old, after she had accompanied her friends to G.E.P.’s apartment to retrieve alcohol that G.E.P. purchased for them. According to Jane, she and G.E.P. had additional intimate encounters years later during her winter and summer breaks from college. Jane explained that G.E.P. repeatedly cautioned her to keep their sexual encounters secret and warned that he could be imprisoned or that her mother and uncle could be imprisoned for their reactions if they ever learned of his abuse.

Years later Jane learned of G.E.P.’s newly adopted daughter who Jane believed resembled herself. Jane claimed she reported her sexual abuse to police 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 from the Morris County Prosecutor's Office to record the conversation.

During the call, Jane told G.E.P. that she was "confused," "depressed," and "overwhelmed" because she "never felt the same after ... after what we did when I was younger." She explained that "the most intense, romantic, and intense sexual experience I ever had was like from eight to sixteen instead of ... like now I can't find it." G.E.P. responded, in part, "I know about it, yep. ... It's a drag because it's like you can't, um, you can't replicate that exactly, you know? You just can't get that again. ... It's one of those things that's, you know, a peak kind of moment."

Later in their conversation, Jane told G.E.P. that she needed "reassurance to know that like it wasn't just sex -- that you really love me and that you really ... because I don't feel like anybody's ever loved me like that before." G.E.P. provided that reassurance:

I still think of it now and I just, you know, I revel in it still, you know? It's awful how I feel. [*chuckles*] It's awful how much I miss it sometimes, but I try -- but I don't -- I don't dwell on it and I don't look at it with a sadness; I look at it with a joy, I really do. I look at it as one of the best things in my life, you know -- like a series of best things, really. It's like a whole period of just amazing stuff -- to me, you know? I always felt like it was this greatest gift, you know, and I, you know, don't know there's a way to humanly frame that or let you -- let you see it, but I really do feel like it was an amazing gift. There's no doubt in my mind that it was. The thing about it is it's like the best chocolate ice cream in the world, and you'll never find another flavor quite like that, you know? That's how I feel about it.

G.E.P. went on to say, "what was sad for me was there was no way to even touch it -- you know what I mean? Like it was such a white hot thing and there was no turning, no going back to that level, you know?" During the same recorded conversation, G.E.P. used "soulmates" to describe his relationship with Jane when she was eight years old, and revealed that he was "nowhere near" as satisfied with his wife with whom he did not share the same "psychic connection" that he shared with Jane when she was a child.

The police obtained search warrants for G.E.P.’s residence and office. 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.

Prior to trial, G.E.P. filed a motion seeking to bar the introduction of CSAAS testimony. G.E.P. claimed that CSAAS testimony was inappropriate in his case because Jane was an adult when she made her allegations against him. The motion court denied G.E.P.’s request, reasoning that Jane claimed the abuse occurred during Jane's childhood. The State also filed a pretrial motion to admit evidence that Jane told a friend on two occasions about Jane's relationship with G.E.P. The court barred that fresh complaint evidence because, as the State conceded, Jane's friend could not recall one of the conversations and could not recall what was discussed during the one conversation she did recall.

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.

Following Jane's testimony, the State presented expert CSAAS testimony from Dr. Anthony D'Urso, a clinical psychologist. After Dr. D'Urso testified, G.E.P. renewed his objection, contending that the jury instructions concerning CSAAS testimony could "be read and misunderstood as excusing an adult." The trial court rejected G.E.P.’s objections and provided CSAAS instructions to the jury that largely tracked the model jury charge then in effect.

The instructions informed the jury that it was permitted to consider Dr. D'Urso’s testimony only for the "limited purpose" of "explaining certain behavior of the alleged victim of child sexual abuse." The trial court further instructed that CSAAS expert testimony "may help explain why a sexually abused child may delay reporting about any sexual abuse that may have occurred." Accordingly, Dr....