State v. R.W.

Decision Date23 April 1985
Citation491 A.2d 1304,200 N.J.Super. 560
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. R.W., 1 Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Seymour Marguiles, Jersey City, for defendant-appellant (Margulies, Margulies & Wind, Jersey City, attorneys; Seymour Margulies, Jersey City, of counsel; Clifford A. Herrington, Jersey City, on the brief).

Greta-Ann Gooden, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Greta-Ann Gooden, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MORTON I. GREENBERG, O'BRIEN and GAYNOR.

The opinion of the court was delivered by

MORTON I. GREENBERG, P.J.A.D.

Defendant was indicted in Monmouth County for aggravated sexual assault ( N.J.S.A. 2C:14-2(a)(1)), sexual assault ( N.J.S.A. 2C:14-2(b)) and endangering the welfare of a three-year-old child ( N.J.S.A. 2C:24-4(a)). The alleged victim, defendant's daughter, was born March 4, 1980. The time of the offenses was specified in the indictment as between March 29, 1983 and May 10, 1983. Prior to the trial on the State's motion over defendant's objection the indictment was amended by the court to fix the time of the offenses as between December 1, 1982 and May 10, 1983 when the infant was between 33 and 38 months old. Defendant pleaded not guilty to the indictment.

Defendant served two pretrial motions which he conceived would aid him in ascertaining the capacity and credibility of the infant as a witness. The first filed November 3, 1983 asked that she be examined by a psychiatrist and psychologist he would retain to determine her competency as a witness. On November 16, 1983 defendant filed a supplemental motion asking that the infant be examined by a psychiatrist and psychologist retained by him to determine whether in light of her age she had sensory or mental defects relevant to an assessment of her credibility. The State objected to these motions and they were denied by order of December 2, 1983.

At pretrial proceedings on January 5, 1984 defendant made two motions. He asked for a postponement of the trial so he could obtain a psychiatric examination of the infant but this motion was denied. The second motion related to possible prejudice from a television movie. Defendant was aware of the scheduling for telecast on Monday, January 9 of a movie entitled "Something About Amelia," dealing with an incestuous relationship between a father and a teenage daughter. The program had been heavily advertised thus causing defendant to be concerned that jurors who watched the show might be prejudiced against him. Accordingly he moved for an instruction from the judge to the jurors that they not watch the show. The judge did not rule on the motion on January 5. The jury trial started on Monday, January 9, 1984 and was continued for three more days until January 12, 1984. At the outset of the proceedings on January 9, 1984 defendant renewed his request concerning "Something About Amelia." The judge denied the motion but indicated he would give the jury cautionary instructions concerning the show.

The evidence at the trial showed that defendant and the child's mother were married in 1977. Defendant's wife worked with autistic children and understood behavior modification. The infant was raised in an open manner without inhibitions concerning her body and was thus taught the proper names for the anatomy. Defendant routinely bathed with her.

On December 1, 1982 defendant's wife left the marital home and moved to a different municipality. Defendant and his wife then orally agreed to share custody of the infant. According to defendant's wife, several months later the infant told her of conduct by defendant that we need not detail but which might constitute a sexual assault. The wife confronted defendant with this information but he denied it. In April 1983 defendant's wife took the child to Boston for a visit with the wife's sister. The sister testified at the trial and described being told by the infant of conduct by defendant that would indicate she may have been the victim of a sexual assault.

There were no eye witnesses to the offenses other than the infant nor was there any substantial physical evidence of the offenses though the wife did indicate that in May 1983 she noted the infant's vagina was red and swollen. A physical examination by a physician the following day showed no evidence of sexual abuse, a result which did not conclusively demonstrate there had been no abuse.

In May the matter was formally reported to the Division of Youth and Family Services and the police and on May 25 defendant was advised by his wife's lawyer he was initiating divorce proceedings. The indictment was returned June 14, 1983 and the following month defendant's wife filed the divorce complaint.

Obviously the infant's testimony was crucial. Defendant challenged her competency but the court allowed her to testify though the judge was understandably concerned about difficulties in obtaining her evidence. Consequently before she testified the judge in the presence of the jury told the infant that if what she said was "real" she would get ice cream. The infant then related acts constituting the sexual assaults. At the conclusion of her direct examination the infant refused to testify without the ice cream. The judge then said to her in the presence of the jury that "I told you [her name] if you told real things and not pretend things, I would give you an ice cream, right?" After the witness said "Yes," the judge said "Okay. You're going to get it." She was then given the ice cream in the presence of the jury.

The infant then testified on cross-examination, apparently while eating the ice cream. When the testimony was completed the infant at the judge's direction came around to his bench and the following ensued in the presence of the jury.

THE COURT: Did you tell us everything that was real?

THE WITNESS: Yeah.

THE COURT: Are you sure?

THE WITNESS: Yeah.

THE COURT: For sure?

THE WITNESS: Uh-huh.

THE COURT: You didn't tell us no pretend stuff, right?

THE WITNESS: No.

THE COURT: Okay. Here, wait a minute. Take those. Goodbye.

The judge then in the presence of the jury gave the infant a lollipop and two cookies. After the jury was excused defendant unsuccessfully moved for a mistrial. At the conclusion of the State's case defendant's motion for dismissal of the aggravated sexual assault charge was granted. However this dismissal left the remaining charges standing.

Defendant testified in his own behalf. He denied the acts of sexual assault attributed to him and indicated that from the time of the separation there had been hostility between him and his wife.

Defendant was found guilty of sexual assault and endangering the welfare of a child.

Defendant made a motion for a new trial asserting among other bases that the court erred in failing to allow the psychological and psychiatric examinations, the judge vouched for and bolstered the credibility of the infant and the judge erred in failing to instruct the jury not to watch "Something About Amelia." The materials submitted with the motion established the movie had been shown at the beginning of the trial on the evening of Monday, January 9 to an audience of 60 million people and was second only to "The Day After" in audience size for movies made for television. The show triggered a large number of calls to public agencies in various states including New Jersey concerned with child abuse. The program dealt with a father-daughter incestuous relationship described in the State's brief as follows:

Significantly, the program was not judgmental about the father's actions. In fact, the character was portrayed in such a manner as to invoke empathy instead of condemnation. Moreover, the episode did not even culminate in a criminal prosecution but rather in total reconciliation accompanied by psychiatric counselling for all the parties involved.

The motion for a new trial was denied.

Defendant was subsequently sentenced to seven years' imprisonment with a three-year period of parole ineligibility for the sexual assault. He received a concurrent term of three years for endangering the welfare of the infant. He was assessed two $25 penalties for the use of the Violent Crimes Compensation Board. This appeal followed.

Defendant raises the following contentions:

(1) The trial court erred in bolstering the credibility of the State's key witness, a three and three quarters years old child by indicating to the jury before her testimony that the witness would tell the truth and by indicating to the jury during and after the child's testimony that she had told the truth.

(2) The court erred in determining that the child was a competent witness against her father.

A. The trial court erred in denying defendant's motion for psychological and psychiatric tests to be conducted on the witness.

B. The witness had an inadequate understanding of the obligation to tell what was true.

C. The witness did not understand the difference between true and false.

D. Defendant was effectively denied his constitutional right to confront and cross-examine [child's name].

(3) The trial court erred in not taking action to eliminate the prejudice created by 'Something About Amelia' a highly publicized treatment of an incestuous relationship between a father and a daughter aired on the A.B.C. television network during the trial.

(4) The prosecutor's comments during his closing statement were harmfully prejudicial and should result in reversal.

A. It was error for the prosecutor to attack the credibility of defense counsel and for the court to deny a curative charge after interpreting a personal evaluation of the prosecutor's motive.

B. Error occurred when the prosecutor, in summation, suggested that he, as well as the jury, knew that defendant did things with his daughter and attacked the...

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13 cases
  • State v. Dixon
    • United States
    • New Jersey Supreme Court
    • July 25, 1991
    ...was any place where there might be some indication that somebody was screaming and somebody got stabbed. See State v. R.W., 200 N.J.Super. 560, 568, 491 A.2d 1304 (App.Div.1985) (trial court's failure to instruct the jury not to watch television program on father-daughter incest in combinat......
  • State v. Michaels
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 26, 1993
    ...On March 26, 1986, defendant moved for psychiatric examinations of the children based on our holding in State v. R.W., 200 N.J.Super. 560, 568-69, 491 A.2d 1304 (App.Div.1985), that one accused of sexual assault of a child should, because of "fundamental fairness," be allowed to develop evi......
  • State v. R.W.
    • United States
    • New Jersey Supreme Court
    • September 23, 1986
    ...and four years on the latter. On appeal the Appellate Division reversed the convictions and remanded for a new trial. 200 N.J.Super. 560, 491 A.2d 1304 (1985). In relevant part the Appellate Division held that the trial court should have allowed a psychological and psychiatric examination i......
  • State v. Mello
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 11, 1997
    ...M.L., 253 N.J.Super. 13, 19, 600 A.2d 1211 (App.Div.1991), certif. denied, 127 N.J. 560, 606 A.2d 371 (1992); State v. R.W., 200 N.J.Super. 560, 572, 491 A.2d 1304 (App.Div.1985), modified, 104 N.J. 14, 514 A.2d 1287 (1986); State v. Spano, 128 N.J.Super. 90, 92, 319 A.2d 230 (App.Div.1973)......
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