State v. R.T.

• Decision Date: 28 April 2011
• Parties: STATE of New Jersey, Plaintiff–Appellant,v.R.T., Defendant–Respondent.
• Court: New Jersey Supreme Court

205 N.J. 493

16 A.3d 365

STATE of New Jersey, Plaintiff–Appellant,

v.R.T., Defendant–Respondent.

Supreme Court of New Jersey.

Argued Jan. 18, 2011.Decided April 28, 2011.

OPINION TEXT STARTS HEREOn appeal from the Superior Court, Appellate Division.Leslie–Ann M. Justus, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General of New Jersey, attorney).Michael J. Confusione, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).PER CURIAM.

The members of the Court being equally divided on whether the instruction on voluntary intoxication required a new trial (three members finding the error harmful, one finding it harmless, and two finding no error), the judgment of the Appellate Division is affirmed.

For affirmance—Justices LONG, LaVECCHIA, and ALBIN—3.For concurrence in part/dissent in part—Chief Justice RABNER—1.For dissent—Justices RIVERA–SOTO and HOENS—2.Not participating—Judge STERN (temporarily assigned)—1.Justice LONG, concurring.

At issue in this appeal is the propriety of the trial court's issuance, sua sponte, of a voluntary intoxication instruction, over the objection of defense counsel who claimed that the instruction was unwarranted on the evidence and negatively impacted his trial strategy. Defendant was convicted of sexual offenses against a child and the Appellate Division, over a dissent, ordered a new trial based on the issuance of the charge. State v. R.T., 411 N.J.Super. 35, 53, 983 A.2d 1177 (App.Div.2009). The State appeals as of right. R. 2:2–1(a). The evidence in this case did not warrant a voluntary intoxication charge. Its issuance interfered with defendant's strategy and affected the fairness of his trial. I would therefore affirm.

I.

Defendant, Robert Trout,¹ was indicted on two counts of sexual assault, in violation of N.J.S.A. 2C:14–2(a)(1); two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14–2(a)(7); and one count of endangering the welfare of a child, in violation of N.J.S.A. 2C:24–4(a); committed between the dates of July 15, 1997, and June 30, 2003. The alleged victim of the charged crimes was defendant's nephew, Larry Trout (Larry), who lived with him during that period.

A.

Defendant's Statement

Prior to trial, defendant moved to suppress a recorded statement he had given to the police. The testimony at the suppression hearing was as follows: on June 2, 2004, defendant presented himself voluntarily at the Camden County Prosecutor's Office for an appointment at the Child Abuse Unit. The purpose of the appointment was to discuss allegations that had been made by Larry against defendant. Sergeant Aida Marcial and Investigator John Hunsinger conducted the interview.

Defendant was advised of Larry's allegations against him and received Miranda warnings. Defendant stated that he understood his rights and signed a waiver card. He denied Larry's claims and Investigator Hunsinger asked him if he would submit to a computer voice stress analyzer (CVSA). Defendant agreed and underwent the test. Subsequently, Investigator Hunsinger advised defendant that the CVSA indicated deceptive answers to two questions regarding penetration of Larry.²

According to Investigator Hunsinger, defendant renewed his denial of the allegations. Defendant then expressed his belief that if he had abused Larry it would have occurred while he was drinking. At the end of the interview, Investigator Hunsinger asked defendant if he would consent to an audiotaped statement. Defendant agreed and Investigator Hunsinger again issued Miranda warnings. Again, defendant waived his rights. Then, the following exchange occurred:

Q: [Defendant] we're talking about some allegations that [Larry] had made against you is that correct?

A: Yes.

Q: In your own words tell us about these allegations?

A: I'm suppose to had um had sex um, sexual intercourse with [Larry] I was touching his behind and private parts and results of me probably drunk, of me drinking and things that I'm very sorry for this happening and I think that is a very sick thing to do. And that a person like me would need counseling, I maybe need counseling to do something like this.

Q: You feel as though you [have a] drinking problem?

A: Yes I do[.]

Q: How long have you been drinking?

A: I've been drinking for approximately 15 to 20 years[.]

Q: How often would you drink?

A: Oh, um often, I drink beers, cans of beers and also I drink between 4 to 8 beers a day[.]

Q: And is that usually during the day or at night time?

A: Toward the evening, like mid day toward the evening[.]

Q: Would you consider[ ] yourself to get drunk or a nice buzz?

A: Well I think it be a buzz but at times it must be [half] way drunk to sometime to that of that I'm (inaudible) got drunk.

Q: Um, you indicated that you had ah sexual intercourse with [Larry]?

A: I might have had sexual intercourse with him, yeah. I really can't remember so I might have been very intoxicated at the time.

Q: What leads you to believe that [you] may have had sexual intercourse with [Larry], if you can't remember?

A: Cause it's going to be a possibility of me doing that but like I said but being drunk remember but if he recalls then I must did[.]

Q: You know how many times this happened, or may have happened?

A: I can not recall at this moment.

Q: Do you ever, have you helped [Larry] go to the bathroom at night?

A: Many times[.]

Q: And how would you help him?

A: That. Ah how would I help him, I would um take, walk him to the bathroom and pull his um pajamas down and (inaudible) put his hands and my hand may touch his penis to make sure it aim to the toilet [bowl].

Q: Would these be nights when you['re] intoxicated?

A: Yes[.]

....

Q: Um at any time do you recall when you were in the bathroom with him and he had his pants down do you recall either inserting your penis into his butt or finger?

A: I don't recall that[.]

Q: [Is it p]ossible that it may have happened?

A: Very possible, yes[.]

Q: Why do you say very possible?

A: I was drinking and something sick like that happened so, yeah I feel it very possible (inaudible)[.]

....

Q: Have you ever found yourself with any ah sexual tendencies towards [Larry]?

A: I found myself with none no.

Q: You ever thought of him in a sexual way?

A: Not with no clear head I didn't never did, no.

Q: What would you say to [Larry] when you were doing this? Do you remember some of things that you were saying to him?

A: No cause I don't remember doing it, so I mean (inaudible) I don't remember saying nothing to him.

Q: You don't remember saying anything to him?

A: No[.]

....

Q: Ok, do you think in your recollection that these things happened at night or during the day?

A: At night[.]

Q: And why would that be?

A: While I'm drinking.

Q: Ok did anybody ever see this?

A: Obviously not.

Q: Did you ever say anything to [Larry] about this or did he ever say anything to you about it?

A: No I never said anything to him about [it] because I don't recall the things, he never came over to me and said nothing about it.

Q: But then you keep saying you don't recall but you already [said] it's a possibility that you did it. Are you saying you can't recall as an excuse?

A: No I'm not. I'm saying I can't recall cause I don't remember it but the possibility if I was drinking it could've happened.

....

Q: Ok can you see yourself doing that to him?

A: No[.]

Q: Look at me. Can you honestly see yourself doing that to him and not wanting to do that ever again?

A: I'd just say, I can not see myself doing that ever again to nobody[.]

Q: Ok but you could see yourself having done that to him and don't want to do it again.

A: I don't see myself having done it to him but I know I wouldn't want to do it again.

Following that statement, defendant was arrested and taken into custody.

Defendant contended at the suppression hearing that he did not knowingly and voluntarily waive his rights because he was not aware that he was a target of the investigation and the officers confronting him were not impartial and objective, but adversaries seeking to ensnare him. In denying the motion, the court relied on the fact that defendant came to the police station freely; was not threatened or coerced; never indicated that he wanted to consult an attorney or terminate the interview; and the questioning was not unduly lengthy. The court concluded that the Miranda waiver was made knowingly, freely, intelligently, and voluntarily; as a result, defendant's statement was deemed admissible.

B.Victim's Statement

Also prior to trial, the State moved to permit the use of a videotape of Larry's interview, conducted by Investigator Asha Ritchards on May 30, 2004. The substance of the interview was replicated by Larry's later trial testimony ( see infra pp. 498–500, 16 A.3d at 369–70) in which he recounted years of sexual abuse by defendant. In terms of the issue presented here, Larry's statement discussed defendant's alcohol use briefly:

Q: Okay what makes you think he would hurt you?

A: Because he drinks a lot of beer and he just sometimes hit me for no reason sometimes.

....

A: He has threatened ... he would threaten people ... when he's drunk he threaten people like um ... like he was gonna kill them or punch them.

Q: How does it make you feel when he does that?

A: Makes me feel bad cause he'll embarrass me ...

Q: Okay and where would he do that at?

A: Like when we're at parties he would drink a lot of beer and he would say that to his friends.

The court granted the State's motion to use Larry's statement, pursuant to New Jersey Rule of Evidence 803(c)(27). The propriety of that ruling is not before us, and, thus, the procedures surrounding the taking of Larry's statement will not be set forth.

C.Trial

The case proceeded to trial. Laura Fox, Larry's mother, testified that a judge granted defendant temporary custody of Larry because she “had a problem with housing.” Laura also testified that Larry revealed the sexual abuse to her on May 30, 2004,...