State v. W.B.

• Decision Date: 27 April 2011
• Citation: 205 N.J. 588,17 A.3d 187
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Respondent,v.W.B., Defendant–Appellant.

205 N.J. 588

17 A.3d 187

STATE of New Jersey, Plaintiff–Respondent,

v.W.B., Defendant–Appellant.

Supreme Court of New Jersey.

Argued Oct. 13, 2010.Decided April 27, 2011.

Steven J. Kaflowitz, South Orange, argued the cause for appellant (Timothy R. Smith & Associates, attorneys).Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney).Deborah C. Bartolomey, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Paula T. Dow, Attorney General, attorney).Alison S. Perrone submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyer of New Jersey.Judge STERN (temporarily assigned) delivered the opinion of the Court.

Defendant was convicted of offenses arising out of the sexual abuse of his then-fourteen-year-old step-daughter. After the Appellate Division affirmed defendant's convictions in an unpublished opinion, we granted certification to review a number of the contentions raised by defendant.

While we now affirm the Appellate Division and sustain defendant's convictions, we hold that Child Sexual Abuse Accommodation Syndrome (CSAAS) expert testimony cannot include any reference to the credibility of sexual abuse victims, and that an adverse inference charge may be given when a police officer destroys his or her investigatory notes before trial.

I.

The proofs at trial included (1) the introduction of a prior inconsistent statement of the victim, defendant's step-daughter, D.L.; (2) CSAAS testimony of an expert, Dr. Richard Coco; (3) fresh complaint testimony of D.L.'s boyfriend, J.C.; and (4) defendant's videotaped confession. Because specific facts relevant to each contention are noted with respect to the claims before us, we need only recite the essential proofs introduced at trial, as found by the Appellate Division, with essential additions, to be sufficient to sustain the conviction:

On January 1, 2005, at approximately 4:00 a.m., J.C. spoke with D.L., his then-sixteen-year-old former girlfriend. She told him that she and family members had been out celebrating the new year and then went home to bed. At some point thereafter, her cousin came to her bedroom and raped her. While telling J.C. this, she also told him that defendant, who is her stepfather, had also previously sexually abused her when she was fourteen years old. According to J.C., D.L. was “hysterical” and “crying a lot.” J.C. discussed what he was told with his older sister who subsequently called the Division of Youth and Family Services (DYFS).

On January 12, 2005, the Passaic County Prosecutor's Office (PCPO) received a referral from DYFS, which indicated that D.L. was being sexually abused by her stepfather. Detective Donna Gade, the supervisor of the PCPO's Special Victim's Unit, immediately commenced an investigation.

At approximately 9:00 p.m., two DYFS investigators arrived at defendant's home and asked to speak with D.L. G.R., D.L.'s mother and defendant's wife, called D.L. downstairs, and the investigators spoke with D.L. privately in the kitchen for approximately fifteen minutes. The investigators did not give G.R. a reason for the visit, but G.R. assumed it had to do with the incident involving her nephew. The investigators said they would return later that evening, but did not. Instead, at approximately 10:00 p.m. that evening, Det. Gade, Detective Matthew Gallup, and two other detectives went to defendant's home to “try to locate [D.L.] and her mother as well as the suspect if he were home.”

G.R. told Det. Gade that defendant was not home. G.R. contacted defendant and he returned home about fifteen minutes later. Det. Gade testified that she met defendant outside of the house and said that she was interested in speaking with him regarding a “family problem[.]” Det. Gade asked defendant if he would accompany the detectives to the prosecutor's office and defendant agreed. G.R. also agreed to go to the prosecutor's office, and D.L. was asked to accompany her. Det. Gade transported G.R. and D.L.; defendant rode with other detectives in another car. They arrived at the prosecutor's office around 11:00 p.m.

At the PCPO, defendant was placed in the polygraph room. D.L. and G.R. were placed in separate rooms because Det. Gade “didn't want anybody talking to each other.” Det. Gade interviewed D.L., who said that, on two separate occasions, defendant had penetrated her vagina with his fingers and his penis. D.L. said that, after these incidents, defendant stopped touching her in a sexual manner. According to Det. Gade, D.L. appeared visibly upset and uncomfortable discussing the matter.

Sometime between 12:27 a.m. and 1:40 a.m., D.L.'s statement was typed. D.L. reviewed it and placed her initials on the top and bottom of each page. D.L. then signed and swore to the truthfulness of her statement before Det. Gallup. After D.L. signed her written statement, Det. Gade took defendant to an interview room for questioning. Defendant was not handcuffed and Det. Gade was not armed.

Det. Gade provided Miranda ¹ warnings to defendant, using the PCPO's Miranda rights and waiver form. She read each right to defendant and asked him if he understood what she said. Defendant replied that he understood and placed his initials after each right listed on the form, indicating his understanding of his rights. He also signed the “waiver of rights” portion of the form. Det. Gade and Det. Gallup each signed the form as witnesses at approximately 2:10 a.m.

Det. Gade then interviewed defendant. Defendant answered Det. Gade's preliminary questions; Det. Gade explained that defendant appeared to be “pretty comfortable” and “acted like a gentleman throughout the whole interview.” Det. Gade informed defendant that she had learned that he had engaged in inappropriate conduct with D.L. According to Det. Gade, defendant was “very shocked” and denied that anything inappropriate had occurred. Defendant said that he would never do anything to hurt D.L. and she was like his “own child.” However, after sitting for a while and thinking, defendant told Det. Gade that “yeah, you know, I do remember a time when I did have sex with her.” Elaborating further, defendant stated that he had been drunk, came home, went to D.L.'s room, crawled into D.L.'s bed and had sex with her.

Defendant agreed to provide Det. Gade with a written statement. At approximately 3:42 a.m., Det. Gade left the room and returned with an individual who typed defendant's responses to her questions. Det. Gade also videotaped defendant's statement. In his videotaped and transcribed statement, defendant acknowledged that he had sexual relations with D.L. twice.

Defendant stated that, on both occasions, he placed his fingers and penis in D.L.'s vagina. Det. Gade asked defendant how she had treated him that evening, and he said Det. Gade had treated him “with kindness and care.” After defendant's statement was completed, it was printed and given to defendant for review and signing. Defendant placed his initials on the top and bottom of each page, and signed it at the end. As they had in respect of D.L.'s written statement, Det. Gade and Det. Gallup each signed the statement as witnesses. Defendant was formally arrested and charged at about 5:00 a.m.

At trial, D.L. recanted her earlier statement; she testified that the statement she gave to the investigators was false. She said that she was in love with J.C. at the time, and defendant and G.R. did not approve of the relationship. D.L. stated that if she could not be with J.C., she would claim that defendant sexually abused her so that defendant and her mother too could not “be together.”

Defendant also testified at the trial. He said that, on January 12, 2005, he left work at around 5:00 or 5:30 p.m. and went to a “social club.” Defendant drank two beers and two “shots” of gin. Defendant left the club about thirty to forty-five minutes later, went to his home to get maracas, and returned to the club to play with a band. Defendant said that he drank four more drinks and a “couple of shots” after returning to the club.

According to defendant's trial testimony, he left the club around 10:00 or 10:15 p.m. As he was leaving, he received a phone call from G.R., who said that someone was at their house looking for him. Defendant returned home at approximately 10:15 or 10:30 p.m. A police car was in the driveway. He stated that one of the police officers grabbed him and told him to put his hands against the wall. The officers patted him down and put him into the police vehicle. Defendant asserted that he did not have an opportunity to refuse to get into the car.

Defendant further testified that he was taken to the prosecutor's office, placed in a locked room and told to wait there. Although the door to the room was locked, he was allowed to leave the room with supervision to go to the bathroom. Defendant claimed that he was kept in the room for about two or two-and-a-half hours and then taken to another room. He asserted he still had no idea why he was at the prosecutor's office, and had nothing to eat or drink after he arrived.

He also testified that he was “tired” and “tipsy” but tried to “keep [his] cool[.]” According to defendant, he was taken to another room, and that Det. Gade entered the room and told him to sign a piece of paper. Defendant believed the paper was the Miranda form. Defendant testified that he did not remember if he understood his rights because he had never seen a form like that before.

Defendant additionally testified that Det. Gade told him that D.L. had provided a statement indicating that defendant had sex with her. Defendant denied the allegations, but Det. Gade kept repeating the details “over and over again[.]” He said that Det. Gade told him that he had to tell her what she wanted to hear “because that's the only way we can all go home.” Defendant testified that he was “tired”...