RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5254-17T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, January 15 , 2021 APPELLATE DIVISION v.
C.W.H.1
Defendant-Respondent. ________________________
Argued November 9, 2020 – Decided January 15, 2021
Before Judges Sabatino, Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 16-07-0617.
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit and Rochelle Watson, Deputy Public Defender II, of counsel and on the briefs).
Andre R. Araujo, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Andre R. Araujo, of counsel and on the brief).
1 We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12). The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a jury trial, defendant was convicted of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and two counts of second-
degree sexual assault, N.J.S.A. 2C:14-2(b), stemming from the sexual abuse of
his daughter, S.H., from the time she was five to the time she was twelve years
old. The abuse consisted of an act of fellatio and weekly acts of sexual
contact. S.H. reported the abuse to police in 2015, when she was thirty -one
years old. During the ensuing protracted police interrogation, defendant
admitted "lay[ing] on top of [S.H.]" twice at nighttime while they were both
wearing pajamas "to give her extra affection." After repeatedly denying the
allegation, defendant also ultimately admitted to an act of penetration but did
not "remember the incident," and was relying on the fact that S.H. had said "it
happened."
Five years earlier, in 2010, for the first time, S.H. had disclosed the
abuse to her husband and confronted defendant by email. The following year,
in 2011, S.H. disclosed the abuse to her brother and his wife, V.H., who
testified at trial that the disclosure seemed credible to her because of
defendant's "weird vibes" and her "intuition." During the trial, defendant did
not testify but produced eight character witnesses who testified about his
A-5254-17T1 2 impeccable reputation in the community. Following the verdict, defendant was
sentenced to an aggregate term of twenty-four years' imprisonment,
community supervision for life, N.J.S.A. 2C:43-6.4,2 and ordered to comply
with the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.
On appeal, defendant raises the following points for our consideration:
POINT I
THE INTERROGATING DETECTIVE USURPED THE JURY'S ROLE AS ARBITER OF CREDIBILITY AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY ASSERTING DURING THE INTERROGATION THAT DEFENDANT'S DENIAL OF THE ALLEGATIONS WERE LIES AND BY OFFERING HIS OPINION AS TO DEFENDANT'S TRUTHFULNESS AT TRIAL. (PARTIALLY RAISED BELOW).
POINT II
[V.H.'S] INADMISSIBLE HEARSAY TESTIMONY THAT THE VICTIM DISCLOSED THE ALLEGATION OF ABUSE SIXTEEN YEARS AFTER THE FACT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL; THE PREJUDICE WAS EXACERBATED BY [V.H.'S] IMPROPER COMMENT THAT THE ALLEGATION WAS TRUE BASED ON HER "INTUITION," HAVING SPENT TIME WITH DEFENDANT. (NOT RAISED BELOW).
2 N.J.S.A. 2C:43-6.4 was amended by L. 2003, c. 267, § 1 effective January 14, 2004. The amendment included the title change from Community Supervision for Life (CSL) to Parole Supervision for Life (PSL). Because these offenses predated the amendment, defendant was sentenced to CSL. A-5254-17T1 3 POINT III
THE PROSECUTOR'S CROSS-EXAMINATION OF EACH OF DEFENDANT'S CHARACTER WITNESSES WITH SPECIFIC INSTANCES OF CONDUCT VIOLATED THE RULES OF EVIDENCE AND PRESUPPOSED HIS GUILT OF THE UNDERLYING CHARGES, THEREBY PREJUDICING DEFENDANT'S RIGHT TO [A] FAIR TRIAL. (NOT RAISED BELOW).
Because we agree that defendant was deprived of a fair trial in multiple ways,
we reverse.
I.
We glean the following facts from the trial record. S.H., born October
1983, lived with defendant, her mother, and her younger brother in Pittsgrove
Township until 1992, when the family moved to Vineland. S.H. testified that
in 1988, when she was five years old, defendant made her perform fellatio on
him while she and defendant were home alone in defendant's bedroom in the
Pittsgrove home. According to S.H., during the incident, defendant "exposed
his penis[,] . . . grabbed [a] condom off . . . the night stand[,] . . . put [the]
condom on," and "told [S.H.] to give [his penis] a kiss." S.H. testified th at she
"put [defendant's penis] in [her] mouth . . . [a]s far as it could go[,] . . . [went]
up and down" as defendant instructed, and, after "a couple of moments,"
defendant "grunted . . . and was done." Afterwards, S.H. left the bedroom. A-5254-17T1 4 S.H. testified that over the next several years, acts of sexual abuse
occurred at the Pittsgrove home about "[o]nce a week, if not more." During
the incidents, while S.H. and defendant were home alone lying "on the
couch . . . watching [television]" in "the spoon[] position," defendant "would
dry hump [her]" by "rub[bing] his [erect] penis against [her] backside" while
saying "do you like that," or "how does that feel." After the family moved to
Vineland, defendant continued the sexual abuse, though the location moved
from the couch to S.H.'s bedroom. During those incidents, defendant would
"roll [S.H.] over" onto "[her] back" and "climb into bed . . . on top of [her]."
Defendant would then "rub his penis against [S.H.'s] vagina," asking "do you
like that," or "how does that feel," until he "ejaculate[ed] inside of his
underwear."3 On one occasion, S.H. refused to move when defendant tried to
roll her over, so defendant "rub[bed] his penis against [her] backside" instead. 4
In another incident, when S.H. was approximately ten years old, defendant
French kissed her by "[sticking] his tongue in [her] mouth[] and [telling her] to
move [her] tongue around."
3 Although S.H. denied any vaginal penetration, she recalled one incident "on the couch in the living[] room" of the Vineland house during which defendant "touched [her] vagina . . . over [her] clothing." 4 S.H. testified that generally, both she and defendant were wearing underwear during the incidents. However, on one occasion, defendant "pulled . . . his penis out" and placed it directly "against [her] backside." A-5254-17T1 5 S.H. testified that the Vineland incidents usually occurred between 6:00
a.m. and 6:30 a.m. before defendant left for work. According to S.H.,
although her mother and brother were normally present in the home during the
incidents, neither was aware of the abuse. While the abuse was ongoing, S.H.
never told anyone because defendant "told [her] not to" and "[she] was afraid
that [she] would lose [her] family and would [not] be believed" if she revealed
the abuse to her family or anyone else. S.H. added that because the abuse
made her feel "[d]irty, ashamed, [and] scared," she "did [not] say anything to
anybody" because "[i]t just [made her] feel like [she] did something wrong."
Despite the abuse, which continued until "a little before [S.H.'s] thirteenth
birthday," S.H. stated that the family appeared "[f]rom the outside" to be "very
normal [looking]."
S.H. "graduated [from] high school in 2002," "married [in] . . . 2004,"
and "joined the military in 2005." As an adult, she maintained a relationship
with defendant until approximately 2010. At that time, S.H. began having
marital and "personal problems." As a result, she disclosed the abuse to her
husband and, for "[c]losure," confronted defendant in an email. S.H. testified
that although defendant responded by email, 5 and admitted that he was only
5 The emails were not introduced at trial.
A-5254-17T1 6 "giving [her] extra love," he did not apologize. Consequently, S.H. stopped
talking to her parents and went "on with life." The following year, 2011, S.H.
was "medically discharged" from the military due to complications from
surgery and moved to Pennsylvania to be "closer to home." When she learned
that defendant had been telling "a completely different story," thereby causing
a rift in the family, S.H. decided to disclose the abuse to her brother and his
wife, V.H., at S.H.'s Pennsylvania home. The disclosure prompted S.H.'s
brother and sister-in-law to convene a family meeting with S.H.'s parents,
during which defendant reportedly made incriminating statements.
On July 14, 2015, S.H. reported the abuse to the police and gave a
formal statement to State Police Detective Mark Beardsley the following day.
After interviewing S.H.'s brother and sister-in-law, at approximately 9:00 a.m.
on July 21, 2015, Beardsley went to defendant's residence and requested that
he come to the police station for an interview. Once defendant agreed,
Beardsley transported defendant to the police station accompanied by Captain
C.J. Tortella. Upon arrival, defendant was escorted to an interview room and
administered his Miranda6 rights. After voluntarily waiving his rights,
6 Miranda v. Arizona, 384 U.S. 436 (1966).
A-5254-17T1 7 defendant gave an incriminating video-recorded statement, 7 after which he was
arrested and charged.
During the four-day trial, in addition to S.H.'s testimony, the State's
case-in-chief rested entirely on defendant's recorded statement, as well as the
testimony of Detective Beardsley and S.H.'s sister-in-law, V.H. Beardsley
explained in detail his training and experience conducting interrogations and
dissected the interview process for the jury's benefit. During his testimony,
Beardsley also evaluated and assessed defendant's statement after the
statement was played for the jury. V.H. testified about S.H.'s disclosure to her,
her "intuition" about defendant, and defendant's incriminating statements at the
family meeting. According to V.H., during the family meeting convened the
day after S.H.'s disclosure, defendant told her and her husband that "he had
done something that he knew was wrong and inappropriate," and that he
"should not have done it." Defendant further explained "that he was just trying
to love [S.H.] more, and it [was] not like he was a molester or anything."
Defendant also expressed concern "if it got out to the rest of the family" and
the impact on "his job because he was a corrections officer at the time."
After the State rested, the judge denied defendant's motion for a
judgment of acquittal. R. 3:18-1. Defendant did not testify at trial but
7 Both Beardsley and Tortella conducted the interrogation. A-5254-17T1 8 produced eight character witnesses consisting primarily of family members
who testified on his behalf. Following the jury verdict, the judge denied
defendant's motion for a new trial, R. 3:20-1, and, after sentencing defendant,
entered a memorializing judgment of conviction on June 28, 2018. This appeal
followed.
II.
In Point I, defendant argues that "admitting defendant's interrogation at
trial - replete with [Beardsley's] statements attacking [defendant's] denials as
lies - was prejudicial." Additionally, defendant argues that Beardsley's
testimony during the trial, both before and after defendant's interrogation was
played for the jury, "deprived [him] of a fair trial" by virtue of Beardsley's
inappropriate comments on defendant's veracity. Specifically, defendant
asserts that Beardsley provided "inadmissible lay opinion testimony about
defendant's credibility" based on Beardsley's "training and . . . experience
conducting interrogations." In so doing, defendant argues that Beardsley
effectively "usurp[ed] the jury's role as the sole arbiter" of credibility. 8
At trial, Detective Beardsley, an eleven-year veteran of the New Jersey
State Police, testified that he had investigated "probably hundreds" of sexual
8 Defendant does not challenge the judge's pre-trial ruling admitting his statement at trial as elicited following a knowing and voluntary waiver of his Miranda rights. A-5254-17T1 9 assaults during his career. He stated he had been trained in conducting
investigations, particularly interviewing suspects, victims, and witnesses. He
testified that he had received specialized training on "tactical interviewing"
and "statement analysis." Based on his training and experience, he explained
that an interview consisted of an "interview phase," during which he gathered
"background" information to "try to develop a rapport," as well as an
"interrogation phase," during which he would "actually accuse [the suspect] of
the crime, if [he] believe[d] that they actually may have been involved . . . in
it."
Beardsley elaborated that during the interview,
[u]sually you're looking for indicators of truthfulness and deceptiveness. You want to try to find out facts that aren't matching up. You know something is true, and they're not saying it's true, it's kind of deceptive, kind of looking for signs of deceptiveness. You look at body language, you look at eye contact. You look at their denials, if they have weak denials. If their denials are strong, . . . you could consider them to be more innocent. You put the whole package together and then you . . . decide, based upon everything.
He further explained that
if I believe their denials are weak, I'm going to keep . . . continually asking them maybe the same question over and over again. If their answers . . . don't make sense, I'm going to . . . continue[,] . . . if they say they can't remember something, I can't just walk away and . . . just leave the interview room. I have to . . . do my job, I have to A-5254-17T1 10 follow up. If answers don't make sense, I have to follow up and try to get the truth.
After eliciting Beardsley's background, the prosecuting attorney played
defendant's video-recorded statement in its entirety for the jury. 9 Early in the
interview, while providing background information, including the names of his
children, defendant began crying and stated that he had not spoken to S.H. in
four years because she had "accused [him] of something happening in the past
and she didn't want anything to do with [him] anymore." Defendant specified
that S.H. had accused him of "touching her inappropriately" but explained that
all he had ever done was "lay[] on top of her . . . rubbing on her" while he
"was on top of the covers" and "she was laying in bed . . . under [the] covers."
Defendant stated that S.H. "was on her stomach" while he laid against her
back, and both he and S.H. were wearing "pajamas . . . because it was at
nighttime." Defendant estimated that these acts occurred "[a] couple of times
. . . at the Vineland house" about "[twenty] years ago" when S.H. was
"[p]ossibly nine or ten [years old]."
When asked whether his private area was rubbing against S.H. during
the contact, defendant replied "[i]t might have been," but he "[did not] recall."
When challenged about his purported inability to recall, defendant
9 Both counsel had previously agreed to certain redactions to the statement. A-5254-17T1 11 acknowledged that it was "not out of the realm of possibility" but explained
that he was "[j]ust . . . try[ing] to give her extra affection because [he] loved
her, and . . . still . . . love[d] her." When asked if he ever ejaculated while
"rubbing up on [S.H.]," defendant responded that he did not. When gril led
about his denials, defendant replied repeatedly that he did not "think so" and
said he "did [not] do anything like that." Defendant elaborated that he "never
. . . did any penetration or anything [like] that" and reiterated it "was always . .
. on top of the covers." Defendant also denied that "anything further"
happened and expressly denied engaging in "oral sex" with S.H.
During prolonged questioning about the occurrence of additional sexual
acts and amidst accusations by the detectives that defendant was not being
"honest" or "truthful" with his answers, defendant continuously denied any
further acts and maintained that all he did was "come in [S.H.'s] room at
nighttime, and lay on top of her, and hug her, maybe caress her." Defendant
explained that at the time, he was "a new father." However, with "more
experience[]" and working as a corrections officer, he came to "realize" that
laying "on top of [S.H.]" was "inappropriate with a father and daughter." After
approximately two-and-one-half-hours of questioning, defendant's denials
persisted. Ultimately, after repeated questioning about the oral sex incident,
defendant stated that he did not "remember it ever happening, but if [his]
A-5254-17T1 12 daughter is saying it did, then-." Defendant speculated that "[m]aybe [his]
memory [was] blocking [him]" from remembering.
After Beardsley implored defendant to give an unequivocal yes or no
answer as to whether he had oral sex with his daughter, defendant eventually
stated "I guess it happened." The following exchange then occurred:
[Beardsley]: No, not I guess. It happened, correct?
[Defendant]: Yes.
[Beardsley]: One time, just that one time or . . . .
[Defendant]: One time.
[Tortella]: And why did it stop at that point? Why didn't it happen again?
[Defendant]: I realized it was wrong.
[Tortella]: And what was the purpose for the condom?
....
[Defendant]: I don't know. I don't remember the incident, but . . . .
[Tortella]: [Y]ou don't remember wearing a condom, or you don't remember the incident? . . . .
[Defendant]: I don't remember.
[Tortella]: Yes, you do.
[Defendant]: [S.H. is] saying I did, then I'm trusting her.
A-5254-17T1 13 Defendant later reiterated that "[i]f [S.H.] said that I did it, then . . . I
guess I did. But I don't recall any . . . circumstances on [sic] the incident."
When asked again to confirm whether the incident occurred, defendant
responded "[y]es, one time." However, defendant maintained that he did not
"remember any details" such as S.H.'s age or the house they were living in at
the time of the incident.
Earlier in the interrogation, when questioned about the French kiss,
defendant had also stated that "[i]f [S.H.] says I did, then maybe I did. I don't
know. I kissed her a million times." Defendant explained "[i]f I had done it, it
might have been an automatic reflex or something when I kissed her." When
asked if "[i]t could have happened," defendant replied "[i]t's a possibility it
could have happened, but not intentionally."
After playing defendant's recorded statement for the jury, the
prosecuting attorney asked Beardsley to explain why he and Tortella did most
of the talking during the interview. Beardsley responded:
It's . . . very normal because of the fact that most of [defendant's] denials, if you can even call them that, were very weak; they are some of the weakest denials I've seen in an interview. We try to alleviate . . . the burden of trying to admit something that's so . . . difficult for him to admit, provide him with opportunities, we keep asking the same question.
His denials were extremely weak, things like I can't remember, I don't know. To me, when I hear "I A-5254-17T1 14 don't know," it means that he does know, he just isn't ready to admit it. It's one step closer to providing the truth.
[T]his is actually a textbook interview of somebody being deceptive throughout the whole, entire interview. He's not answering questions . . . . He's answering saying I don't remember, I can't recall, I don't recall. That's not what an innocent person says. An innocent person says no, never, that never happened.
Before Beardsley completed his response, the judge interrupted the
questioning and, sua sponte, provided the following curative instruction to the
jury:
You are the sole deciders of who's telling the truth and who's not telling the truth . . . . You are to completely disregard the trooper's testimony about . . . who he thinks is telling the truth and who is not telling the truth. That is your job . . . .
Now I understand the trooper was explaining his answer, but . . . I'm telling you to strike from your memory all of those statements. You decide who's telling the truth [or] not – you saw the statements being made. You decide those things . . . .
[Y]ou decide who's telling the truth or not, and nobody else decides that. That's your job, and only your job. So, to the extent that you heard any of those
A-5254-17T1 15 statements about how you figure out who's telling the truth or not, I want you to disregard those. [10]
After resuming direct examination, the prosecuting attorney again asked
Beardsley why he asked defendant "certain questions over and over again"
during the interview. Beardsley responded:
Again, just because his denials . . . were very weak. It didn't make sense. I think at one point he mentioned Alzheimer's Disease. He made no mention of Alzheimer's Disease[] when I asked him if he had any ailments in the beginning of the questioning. Just none of his answers - - I don't know, I don't recall, . . . I can't leave that as an answer and be satisfied with that. I wouldn't have a job as a detective. I have to elaborate on that.
When the prosecuting attorney asked whether the repeated questioning was "a
typical technique," Beardsley reiterated "[i]f they're weak denials, absol utely."
During re-direct examination, Beardsley restated that based on his
training and experience, certain cues that indicated deceptiveness included
"[w]eak denials, lack of eye contact, belching, sweating, [and] crying." He
confirmed that defendant was "belching" during the interview and explained
that it was "just one factor of deceptiveness in not being able to control your
bodily functions, when you're asked . . . an important question." There was no
10 Before giving the instruction, the judge informed both counsel at sidebar of his intention to strike the testimony, to which defense counsel agreed. A-5254-17T1 16 objection to Beardsley's testimony, and no further curative instruction was
requested or given by the judge sua sponte.
Turning to the governing principles, "credibility is an issue which is
peculiarly within the jury's ken and with respect to which ordinarily jurors
require no expert assistance." State v. J.Q., 252 N.J. Super. 11, 39 (App. Div.
1991). Indeed, "the mere assessment of another witness's credibility is
prohibited." State v. Frisby, 174 N.J. 583, 594 (2002). In particular, a witness
should never "offer an opinion that a defendant's statement is a lie" and
[p]olice testimony concerning a defendant's guilt or veracity is particularly prejudicial because "[a] jury may be inclined to accord special respect to such a witness," and where that witness's testimony goes "to the heart of the case," deference by the jury could lead it to "ascribe[] almost determinative significance to [the officer's] opinion."
[State v. Tung, 460 N.J. Super. 75, 102 (App. Div. 2019) (alterations in original) (quoting Neno v. Clinton, 167 N.J. 573, 586-87 (2001)).]
While lay opinion testimony may be admitted under N.J.R.E. 701 "in the
form of opinions or inferences" if "it: (a) is rationally based on the witness'
perception; and (b) will assist in understanding the witness' testimony or
determining a fact in issue," the rule is not unbounded. Our courts have not
permitted lay opinion testimony "on a matter 'not within [the witness's] direct
ken . . . and as to which the jury is as competent as he to form a conclusion."
A-5254-17T1 17 State v. McLean, 205 N.J. 438, 459 (2011) (alterations in original) (quoting
Brindley Fireman's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
Additionally, witnesses may not "intrude on the province of the jury by
offering, in the guise of opinions, views on the meaning of facts that the jury is
fully able to sort out" or "express a view on the ultimate question of guilt or
innocence." Id. at 461.
For interrogating police officers, "observations that [a] defendant
appeared aggravated . . . and was 'clearly upset' . . . were . . . opinions based on
first-hand perception of defendant's appearance, demeanor, and reactions,
which fall within the lay opinion rule." Tung, 460 N.J. Super. at 101.
However, an "[officer's] opinions as to defendant's truthfulness and guilt . . .
[are] not admissible as either demeanor evidence or lay opinion." Ibid.
Notably, in Tung, where we reversed the defendant's "convictions for murder
of his estranged wife's lover," id. at 80, among other things, we found "[m]ost
troubling" a police officer's "comments on the manner in which defendant gave
responses" while being interrogated, which "suggest[ed] that [the officer's]
own experience and specialized training enabled him to determine that
defendant was lying." Id. at 103. There, "[d]uring his live testimony," the
officer "stressed to the jury" that, when questioned, the "defendant's responses
were 'vague' but 'not denials,' while an honest person would have answered 'no,
A-5254-17T1 18 absolutely not.'" Ibid. We concluded that "[t]he testimony . . . was improper"
because "[t]he overall message," which was "exacerbated" by "[t]he absence of
a video recording of the interrogation" 11 was that the officer "could tell that
defendant was lying." Id. at 103-04.
Here, because the objection to Beardsley's testimony is being lodged for
the first time on appeal, we review for plain error. State v. Macon, 57 N.J.
325, 333 (1971). Under that standard of review, we disregard any error or
omission "unless it is of such a nature as to have been clearly capable of
producing an unjust result." R. 2:10-2. "The possibility of an unjust result
must be 'sufficient to raise a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached.'" State v. Ross, 229 N.J.
389, 407 (2017) (quoting State v. Williams, 168 N.J. 323, 336 (2001)).
It is beyond cavil that "[p]lain error is a high bar." State v. Santamaria,
236 N.J. 390, 404 (2019). "The 'high standard' used in plain error analysis
'provides a strong incentive for counsel to interpose a timely objection,
enabling the trial court to forestall or correct a potential error.'" Ibid. (quoting
State v. Bueso, 225 N.J. 193, 203 (2016)).
A defendant who does not raise an issue before a trial court bears the burden of establishing that the trial
11 Only an audio recording of the interrogation and a transcript of the statement were presented to the jury at trial. Id. at 89-90. A-5254-17T1 19 court's actions constituted plain error because to rerun a trial when the error could easily have been cured on request[] would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.
[Id. at 404-05 (alteration in original) (citation omitted).]
Accord State v. Trinidad, 241 N.J. 425, 445 (2020).
Here, Beardsley's testimony is clearly analogous to the testimony we
found troubling in Tung and which required a new trial. Beardsley was
introduced to the jury as having years of experience conducting interrogations,
creating an impression that he had a particular expertise in determining truth.
His testimony, which clearly conveyed the impression to the jury that
defendant was being deceptive during questioning, impermissibly colored the
jury's assessment of defendant's credibility. In an effort to neutralize the
negative effects of the objectionable testimony, the judge provided a firm and
timely curative instruction sua sponte. Our Supreme Court "has consistently
stressed the importance of immediacy and specificity when trial judges provide
curative instructions to alleviate potential prejudice to a defendant from
inadmissible evidence that has seeped into a trial." State v. Vallejo, 198 N.J.
122, 135 (2009).
However, "[e]vidence that bears directly on the ultimate issue before the
jury may be less suitable to curative or limiting instructions than evidence that A-5254-17T1 20 is indirect that requires additional logical linkages." State v. Herbert, 457 N.J.
Super. 490, 505 (App. Div. 2019). Further, "[t]he adequacy of a curative
instruction necessarily focuses on the capacity of the offending evidence to
lead to a verdict that could not otherwise be justly reached." State v. Winter,
96 N.J. 640, 647 (1984). Additionally, when there are numerous errors, "a
single curative instruction may not be sufficient to cure the prejudice arising
from cumulative errors at trial." Vallejo, 198 N.J. at 136 (citing State v. Frost,
158 N.J. 76, 86-87 (1999)).
Here, we find that the challenged testimony constituted plain error, and
the single curative instruction was insufficient to cure the prejudice arising
from Beardsley's reiteration of his impression that defendant was being
deceptive during questioning following the judge's curative instruction.
Undoubtedly, the jury's evaluation of whether defendant's denial of guilt was
credible was tainted by Beardsley's "clearly and repeatedly stated opinion" that
defendant was being deceptive in his denials. Tung, 460 N.J. Super. at 103.
That taint was "clearly capable of producing an unjust result." R. 2:10-2.
In State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995), we
noted that "[t]here is no provision in our legal system for a 'truth -teller' who is
authorized to advise the jury on the basis of ex parte investigations what the
facts are and that the defendant's story is a lie." In Pasterick, the defendant
A-5254-17T1 21 was convicted of purposeful and knowing murder in connection with the fatal
stabbing of his father following a physical altercation. Id. at 609-10. At trial,
the defendant testified that his father possessed the knife "throughout the
struggle," implying "that his father was wounded by accident." Id. at 612.
The State presented the testimony of a psychiatrist as a rebuttal witness, who,
among other things, "relate[d] what he had learned from other sources that
contradicted defendant's version of the facts," and testified that he "simply
[did] not feel the defendant's story could be taken at face value." Id. at 618-20.
Despite the lack of objection by defense counsel to the expert's
testimony and "the trial judge interject[ing] an admonition to the jury" at the
conclusion of the testimony that "the ultimate conclusion on . . . who to
believe and who not to believe [was] up to [the jury]," id. at 620, we held that
the testimony "was plain error because it deprived defendant of his right to a
fair trial." Id. at 622 (citations omitted). We explained that "[a]lthough part of
the substance of what [the expert] testified to had already been related to the
jury," the "testimony acquainted the jury with other alleged instances of
defendant's anger leading to violence, and . . . purported to analyze and
discredit [defendant's] testimony." Ibid.
When applying the plain error doctrine to evidence that should have
been excluded, "a reviewing court may consider whether, absent the evidence
A-5254-17T1 22 admitted in error, there was overwhelming evidence of the defendant's guilt."
Tung, 460 N.J. Super. at 98-99. This case was a pitched credibility battle
between S.H. and defendant on the pivotal issue of whether defendant sexually
assaulted S.H. We recognize that defendant ultimately made incriminating
admissions during the interrogation. 12 However, the defense strategy was to
repudiate the veracity of those admissions. Indeed, in summation, defense
counsel commented that throughout the interrogation, he "had counted . . .
close to [twenty] times where [defendant] said . . . it didn't happen." He stated
that defendant's "definition of inappropriate touching [was] not the same as the
. . . [interrogating officers']," who even acknowledged that lying "in bed with
[S.H.] . . . with clothes on" was "not even against the law," but "[y]et they
continued to badger," "hammer," "pressure[,] and hound[]" defendant.
In such a contentious dispute, "[a]ny improper influence on the jury that
could have tipped the credibility scale was necessarily harmful and warrants
reversal." Frisby, 174 N.J. at 596. The error here was exacerbated by the fact
that, unlike Tung, the jury charge did not "include[] a general instruction to
disregard the officers' 'comments' during defendant's interrogation," in order
12 We appreciate the natural desire of an experienced detective to explain his interrogation techniques and his interactions with a suspect. However, such an explanation cannot cross over the line of inadmissible lay opinion about a defendant's credibility. A-5254-17T1 23 "to address the multiplicity of times" during the interrogation when the officers
accused defendant of not being honest or truthful in his denials. Id. at 102.
The error was further compounded by the other two issues raised by defendant
for the first time on appeal, which we now address.
III.
In Point II, defendant argues the testimony of S.H.'s sister-in-law, V.H.,
regarding S.H.'s disclosure of the abuse to her "sixteen years after the abuse
ended," was "inadmissible hearsay." Defendant also contends that V.H.'s
testimony that S.H.'s disclosure "confirmed [V.H.'s] intuition about defendant"
and validated "the weird vibes [V.H. had] gotten" from defendant had the
effect of "bolster[ing] the victim's credibility[,] . . . improperly substantiat[ing]
the allegation of abuse," and "inject[ing] inferential propensity evidence" into
the case.
V.H. testified about the "cold and awkward" nature of the relationship
between defendant and S.H., S.H's 2011 disclosure to her of defendant's sexual
abuse, her subsequent meeting with defendant and the family during which
defendant made incriminating statements, and her "intuition" concerning
defendant. As to the latter, during her direct examination, V.H. testified about
S.H.'s disclosure to her and her husband as follows:
[PROSECUTOR]: And what was [S.H.'s] demeanor like as she was making this disclosure to you? A-5254-17T1 24 [V.H.]: She was very nervous when she first started, and she had told us that she hadn't told many people, so, to me, that explained why she was nervous at first. But then, as she began to continue with the story, I openly said, whoa, I knew it. And then she calmed down and started to talk to us a little more. . . .
[PROSECUTOR]: And why would [you] say "I knew it"?
[V.H.]: I just always had weird vibes, . . . we lived with [defendant] when we first got married, and I would not go out in the living room with just my pajamas on, and if I did for some reason, like me and my husband were going to sit down on the couch, I would immediately sit down and cover up with a blanket. Like I just did not feel comfortable in any situation.
[PROSECUTOR]: And who made you feel uncomfortable?
[V.H.]: [Defendant].
[PROSECUTOR]: Did he do anything to make you feel uncomfortable?
[V.H.]: In the beginning, no. At one point, there was a very oddly exchanged hug. That point on, I did feel like, okay, well, now all the weird vibes I've gotten have just been confirmed. But it was mainly just my intuition.
A-5254-17T1 25 Generally, hearsay is an out-of-court statement admitted "to prove the
truth of the matter asserted," N.J.R.E. 801(c),13 and, subject to limited
exceptions, is inadmissible. N.J.R.E. 802. Ordinarily, a third party's
testimony about a victim's out-of-court description of an alleged sexual assault
is inadmissible hearsay evidence. Ibid. However, the fresh-complaint doctrine
is a common law exception to this rule that "allows witnesses in a criminal
trial to testify to a victim's complaint of sexual assault." State v. Hill, 121 N.J.
150, 151 (1990). See State v. W.B., 205 N.J. 588, 616 n.14 (2011). The
purpose of the doctrine is to "allow[] the admission of evidence of a victim's
complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the
inference that the victim's initial silence or delay indicates that the charge is
fabricated." State v. R.K., 220 N.J. 444, 455 (2015) (citing Hill, 121 N.J. at
163). Notably, such evidence is not admissible to prove any substantive
element of the offense or to "bolster the victim's credibility." State v. Bethune,
121 N.J. 137, 148 (1990).
"[T]o qualify as fresh-complaint evidence, the victim's statement must
have been made spontaneously and voluntarily, within a reasonable time after
the alleged assault, to a person the victim would ordinarily turn to for support."
13 While several of the New Jersey Rules of Evidence have since been amended, for purposes of this opinion, the Rules cited will be those in force during the time of the trial in 2017. A-5254-17T1 26 R.K., 220 N.J. at 455 (citing W.B., 205 N.J. at 616). The requirement that a
sexual assault be reported in a reasonable time is applied more flexibly in
cases where the declarant is a child at the time of the alleged abuse. W.B., 205
N.J. at 618 (citing State v. L.P., 352 N.J. Super. 369, 382 (App. Div. 2002)).
"The determination whether the fresh complaint rule's conditions of
admissibility have been satisfied is committed to the discretion of the trial
court." L.P., 352 N.J. Super. at 380-81 (citing Hill, 121 N.J. at 167-68). An
abuse of discretion may be found if the trial court made a "clear error of
judgment." State v. Brown, 170 N.J. 138, 147 (2001) (citation omitted).
Because defendant failed to object to V.H.'s testimony at trial, we review
the admissibility of her testimony under the plain error standard. R. 2:10-2.
Although "a substantial lapse of time between the assault and the complaint
may be permissible if satisfactorily explainable by the age of the victim and
the circumstances surrounding the making of the complaint," State v. Pillar,
359 N.J. Super. 249, 281-82 (App. Div. 2003), we agree with defendant that a
sixteen-year delay in the circumstances of this case was not fresh by any
measure. See id. at 285 (finding inadmissible as "fresh complaint" statements
made "six years" after the abuse).
Assuming we accept the State's contention that the disclosure to V.H.
"was not . . . hearsay" because it was not introduced "for the truth of the matter
A-5254-17T1 27 asserted, but rather for its effect on the listener," even more troubling was
V.H.'s testimony that the sexual abuse disclosure confirmed her "intuition"
about defendant. To be sure, such lay opinion testimony had the undoubted
effect of bolstering S.H.'s credibility and implicating defendant's guilt by
necessary inference. However, just as fresh complaint is not admissible to
bolster the victim's credibility, Bethune, 121 N.J. at 148, "the lay opinion rule"
does not authorize a witness to "express a view on the ultimate question of
guilt," McLean, 205 N.J. at 461, and prohibits the "assessment of another
witness's credibility." Frisby, 174 N.J. at 594.
Indeed, in disapproving of a witness "express[ing] an opinion of
defendant's guilt," our Supreme Court has observed:
We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, to assure the complete opportunity of the jury alone to determine guilt, to prevent the court or the State from expressing an opinion of defendant's guilt, and to require the jury to determine under proper charges no matter how obvious guilt may be. A failure to abide by and honor these strictures fatally weakens the role of the jury, depriving a defendant of the right to trial by jury.
[Id. at 594 (quoting State v. Hightower, 120 N.J. 378, 427-28 (1990)).]
A-5254-17T1 28 Even if the testimony does not constitute reversible error on its own,
equally problematic was V.H.'s testimony that S.H.'s disclosure "confirmed"
the "weird vibes" she had always "gotten" from defendant. By connecting
S.H.'s disclosure to defendant's "weird vibes" and elaborating that the "weird
vibes" stemmed from specific instances where she felt "uncomfortable" around
defendant as well as "a very oddly exchanged hug," V.H. implied that
defendant had a trait of character associated with proclivities for sexual
misconduct.
"Because an individual's testimony regarding another person's character
trait is a form of lay opinion evidence, N.J.R.E. 701 determines its
admissibility." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 310 (2006).
Inasmuch as V.H.'s testimony was "rationally based on [her] perception" and
would "assist in understanding [her] testimony or in determining a fact in
issue," her lay opinion passes muster under the threshold requirements of Rule
701. See Fitzgerald, 186 N.J. at 309 ("An opinion witness offers a personal
assessment of a prior witness' character based on his or her own perceptions.").
A-5254-17T1 29 More difficult, however, is the determination as to whether V.H.'s
testimony was permissible under N.J.R.E. 404. 14
Under Rule 404(a)(1), "[e]vidence of a person's character or character
trait . . . is not admissible for the purpose of proving that the person acted in
conformity therewith on a particular occasion" except when "offered by the
accused . . . or by the prosecution to rebut the same." "[T]he Rule requires that
the character trait evinced by the evidence must be one 'pertinent' to the issues
in the case." State v. Abril, 444 N.J. Super. 553, 560 (App. Div. 2016). To
that end, pertinent evidence "must relate to a character trait directly involved
and apply to a relevant time and place in the defendant's life." Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E.
404(a)(1) (2019) (citations omitted).
Under Rule 404(b), "[e]xcept as otherwise provided by Rule 608(b) [15]
evidence of other crimes, wrongs, or acts is not admissible to prove the
14 We note the adoption of subsequent amendments to the rule, none of which substantively impact this case. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, N.J.R.E. 404, www.gannlaw.com (2020). 15 N.J.R.E. 608(b) permits an attack on "[t]he credibility of a witness in a criminal case" in limited circumstances that do not apply here. Additionally, under N.J.R.E. 608(a), "[t]he credibility of a witness may be attacked . . . by evidence in the form of opinion . . . provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness," not sexual proclivities as here. A-5254-17T1 30 disposition of a person in order to show that such person acted in conformity
therewith." Because of the "underlying danger" that a "jury may convict the
defendant because he is a 'bad' person in general," State v. Skinner, 218 N.J.
496, 514 (2014) (quoting State v. Cofield, 127 N.J. 328, 336 (1992)), "[t]o be
admissible, such evidence must be 'relevant to a material issue,' and its
probative value 'must not be outweighed by its apparent prejudice.'" State v.
Sanchez-Medina, 231 N.J. 452, 465 (2018) (quoting Cofield, 127 N.J. at 338).
"The mere bolstering of a witness's credibility does not satisfy the relevancy
element of the Cofield test." State v. Prall, 231 N.J. 567, 582 (2018).
Applying these principles, we are convinced that introducing testimony
of defendant's "weird vibes" served no purpose other than casting defendant's
character in a negative light, from which the jurors could infer that defendant
was more likely to have sexually assaulted S.H. This is the exact type of
propensity inference that Rule 404 was designed to avoid. Although V.H.'s
feelings do not constitute "other crimes, wrongs, or acts" prohibited under
Rule 404(b), the specific instances she cited as forming the basis for her
opinion about a particular trait of defendant's character had the import of
showing that "on a particular occasion" defendant "acted in conformity
therewith." N.J.R.E. 404(a).
A-5254-17T1 31 The State counters that the testimony was permissible under Rule
404(a)(1) and 405 to rebut defendant's evidence of good character. Howe ver,
Rule 404(a)(1) "prohibits the admission of character evidence by a prosecutor
as circumstantial proof of an accused's propensity toward the conduct charged
unless the accused 'opens the door' to such evidence by offering evidence of
his or her pertinent good character traits." State v. Baluch, 341 N.J. Super.
141, 188 (App. Div. 2001) (quoting State v. Hunt, 115 N.J. 330, 369 (1989)).
When V.H. testified during the State's case-in-chief, no evidence of good
character had been introduced by defendant.
Additionally, Rule 405 provides that "[s]pecific instances of conduct not
the subject of a conviction of a crime shall be inadmissible [to prove a trait of
character]," unless "character or a trait of character . . . is an essential element
of a charge, claim, or defense," none of which apply here. N.J.R.E. 405(a) and
(b). See State v. Scott, 229 N.J. 469, 496 (2017) (Albin, J., concurring)
(explaining that under Rule 405(b), "specific instances of conduct are
admissible when a party's character for truthfulness is an essential element of a
claim or defense . . . such as in a defamation case."); see also Johnson v.
Dobrosky, 187 N.J. 594, 604 (2006) ("The obvious corollary of [Rule 405's]
limited rule of admissibility is that evidence of a person's character or a trait
thereof is not admissible when it is not an element of a claim or defense.").
A-5254-17T1 32 Character evidence is restricted under our evidence rules because it tends
to be highly prejudicial. "That limitation reflects the danger inherent in the
introduction of such evidence—'its susceptibility to convert a trial of the issue
to a judgment of the person.'" Johnson, 187 N.J. at 604 (quoting State v.
Burke, 354 N.J. Super. 97, 109 (Law Div. 2002)). "[R]elevant evidence may
also be excluded on the ground that 'its probative value is substantially
outweighed by the risk of . . . undue prejudice.'" Scott, 229 N.J. at 481
(quoting N.J.R.E. 403). Even if otherwise admissible, we are satisfied that
under the circumstances of this case, V.H.'s "intuition" combined with
defendant's "weird vibes" unduly prejudiced the defense. Although any single
trial error may not warrant a reversal, the cumulative effect of several errors
may operate to deny defendant a fair trial. State v. Jenewicz, 193 N.J. 440,
473 (2008). We find that this error, in conjunction with the other errors, was
"clearly capable of producing an unjust result." R. 2:10-2.
IV.
In Point III, defendant argues the prosecutor violated "[t]he rules of
evidence prohibit[ing] the impeachment of a defendant's character witness with
specific instances of conduct" by cross-examining each of defendant's
character witnesses with "the conduct for which defendant was on trial."
During cross-examination, the prosecuting attorney asked each of defendant's
A-5254-17T1 33 character witnesses whether his or her opinion of defendant would change if he
or she knew that defendant admitted to law enforcement that he
inappropriately touched his daughter. Defendant contends that although the
witnesses responded in the negative, by "[c]onfronting the witnesses with the
allegations against defendant," the State "presupposed his guilt and treated the
issue in dispute as a foregone conclusion." Further, "because the State's
proof[s] were not overwhelming and . . . defendant's statement was disputed at
trial, the prosecutor's improper cross-examination of the character witnesses
denied defendant his right to a fair trial."
"N.J.R.E. 608 places limitations on impairment of the credibility of a
defendant's character witness in a criminal proceeding. Inquiry may not be
made into the witness's knowledge of the defendant's alleged criminal conduct
which is not evidenced by a criminal conviction." Abril, 444 N.J. Super. at
561-62 (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
cmt. 5 on N.J.R.E. 607 (2015)). Likewise, both Rule 405, outlining the means
by which admissible character evidence may be proven, and Rule 607,
delineating the proper methods for impeaching a witness's credibility, prohibit
a prosecutor from impeaching "the credibility of a defendant's character
witness by inquiring into the witness's knowledge of alleged criminal
misconduct not evidenced by a criminal conviction." Id. at 561.
A-5254-17T1 34 As our Supreme Court explained in Scott, Rule 608 "preclude[s] the use
of specific instances of conduct to attack the credibility of a witness." 229 N.J.
at 481. Indeed, Rule 608 imposes a complete ban on the use of specific
instances of conduct and "bars not only the use of extrinsic evidence but also
cross-examination into specific instances of misconduct." Id. at 488 (Rabner,
C.J., concurring). 16
Because defendant did not object to the cross-examination challenged
here for the first time on appeal, we again review defendant's arguments
through the prism of the plain error standard. We agree that the objectionable
questioning was a clear violation of Rule 608 and 405 and constituted plain
error in the circumstances of this case. We find that it was fundamentally
unfair to impeach defendant's character witnesses by cross-examining them on
defendant's alleged incriminating statement that was not the subject of a
criminal conviction and the veracity of which was challenged during the trial.
In weighing the effect of improperly admitted evidence to determine
whether its admission constitutes plain error, we must of necessity assess
whether "the State's case is particularly strong." R.K., 220 N.J. at 456. This
16 N.J.R.E. 608 was amended in July 2020, in response to the Supreme Court's ruling in Scott. Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 608, www.gannlaw.com (2020). However, we apply the iteration of the rule that existed when the case was tried. A-5254-17T1 35 case involved a question of guilt dependent entirely on the jurors' resolution of
who was telling the truth. We believe that this error, either in isolation or in
combination with the other errors in this trial, requires reversal of defendant's
convictions. R. 2:10-2. We therefore are compelled to reverse defendant's
convictions and remand for a new trial.
Reversed and remanded for a new trial. We do not retain jurisdiction.
A-5254-17T1 36