State v. D.G.

723 A.2d 588, 157 N.J. 112, 1999 N.J. LEXIS 53
CourtSupreme Court of New Jersey
DecidedFebruary 9, 1999
StatusPublished
Cited by26 cases

This text of 723 A.2d 588 (State v. D.G.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. D.G., 723 A.2d 588, 157 N.J. 112, 1999 N.J. LEXIS 53 (N.J. 1999).

Opinion

The opinion of the court was delivered by

GARIBALDI, J.

In this appeal we again confront the critical and continually recurring problem of the admissibility of a child’s extrajudicial statements regarding allegations of sexual abuse. Specifically, we must determine whether under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), the testimony of a relative regarding the child’s extrajudicial statements about the sexual assault and a videotaped police interview of the child that contained a seven minute gap in the taping are admissible.1

I.

Defendant’s alleged victim was Michelle,2 his eight year old step-daughter. Michelle’s mother married defendant in 1989, when Michelle was four and a half years old. Together, her mother and defendant had two more children. In January 1993, Michelle, her mother and her siblings moved from Virginia to New Jersey. They stayed with Michelle’s great-grandmother until their new home in Lower Township, New Jersey was ready. On Martin Luther King weekend, defendant, an enlisted man in the [116]*116Navy stationed in Virginia, obtained a weekend pass and came to New Jersey to visit his family. During his visit, he asked Michelle to pick up pizzas for dinner with him. On the way to get the pizza, they stopped at the family’s new home so defendant could search among some boxes. Michelle played with some Matchbox ears in the living room while defendant looked through the boxes. Michelle stated that defendant called her into the master bedroom and told her to lie down on a mattress. He laid down next to her and proceeded to place his hands under her shirt. Defendant touched and squeezed her breasts, fondled her vagina, and kissed her on the mouth. He then pulled off her shirt and pants, removed his own pants and climbed on top of her. Michelle testified that defendant put his “dinky” into her and then cleaned up the “wet stuff’ on the bed with a towel. He then told her to clean herself up and get dressed. The pair proceeded to the pizza place and then returned to the great-grandmother’s house.

Approximately three weeks later, on February 6, 1993, Michelle was playing in a bedroom with the younger daughters of her mother’s cousin, Sandra Jones.3 Michelle refers to Sandra Jones as Aunt Sandy. Aunt Sandy entered the room and found Michelle lying on the bed between her two younger daughters, ages five and three. The two young girls had their pants down to their knees and one of them had her hand down Michelle’s pants. Aunt Sandy testified that she “freaked out” when she saw the girls and called them “names.” She ordered Michelle to sit in the living room and told her that she was very upset with her. Michelle testified that she “got in trouble” after her aunt came into the room. Aunt Sandy testified that Michelle did not cry but seemed scared. Aunt Sandy took her daughters to the bathroom, washed them and attempted to “deprogram” them. The older girl told her mother that Michelle wanted her to “lick her pee pee.”

[117]*117Forty-five minutes later, Aunt Sandy returned to the living room and questioned Michelle about the incident. Aunt Sandy testified that she had calmed down by then, but Michelle seemed nervous. Aunt Sandy asked Michelle what had made her act that way and where she had learned it. At first, Michelle blamed the behavior on Aunt Sandy’s daughters. However, after more questioning, she revealed that “Daddy David” did those things to her. Michelle testified on direct examination that Aunt Sandy asked her, ‘What made you do this? Did anybody ever do anything like this to you to make you do this?” She then told Aunt Sandy about the events that occurred in January at her family’s new home. She told her Aunt that “Daddy David” stuck his “thing” in her and then “peed” on the bed, wiping it up with a towel. Michelle begged her Aunt not to tell her mother.

Aunt Sandy immediately called one of Michelle’s aunts and Michelle repeated the allegation to her. Michelle’s mother was called and Aunt Sandy told her what Michelle had said. They called the police and defendant was charged with committing an act of sexual penetration on a child under the age of thirteen and with debauching the morals of a child for whom he had a legal duty of care.

On February 10, 1993, Detective Marie Hayes, a female detective from the Child Abuse Unit of the Cape May County Prosecutor’s office conducted a videotaped interview of Michelle. Aunt Sandy accompanied Michelle to the interview and waited in the hall while Michelle and Hayes spoke. Michelle mentioned to Hayes that Aunt Sandy promised her a surprise if she told the truth. Initially, however, Michelle said very little. She said only that defendant had touched her “boobies.” The detective persistently tried to get Michelle to say more; Michelle would not. The detective sensed that Michelle was scared and was holding back. She stopped the interview when Michelle’s nose began to bleed and Hayes brought Michelle to the bathroom. The detective then spoke separately with Aunt Sandy and asked her to reassure Michelle about talking to her. Aunt Sandy then placed Michelle [118]*118on her lap and reassured her that she should tell the detective the truth. Hayes testified that she was present during the entire exchange. After seven minutes, Michelle and Hayes returned to the interview room and resumed taping the interview. Michelle proceeded to allege that defendant had put his “penis” into her “vagina.”

Six days later, Michelle was examined by Dr. Finkel, a pediatrician specializing in cases of sexual abuse, to determine if there were any physical and/or psychological “residual effects” of the alleged sexual attack. After receiving a medical history from Michelle’s mother and background information from a caseworker, Dr. Finkel interviewed Michelle alone. Under questioning about whether defendant had touched her, Michelle said that defendant rubbed his penis on her “private.” Using an anatomical model with genitalia, Michelle demonstrated what Dr. Finkel interpreted as vulvar coitus. The physical examination disclosed no injury or “residual effect” to the genitalia. According to Dr. Finkel, however, that result is not unusual because even in rape cases where extreme force is used, resultant injuries can be undetectable a week later. Based on Michelle’s oral description of the events and her behavior with anatomically correct dolls, Dr. Finkel found that there was a high likelihood that sexual abuse had occurred.

Prior to the trial, Michelle’s mother beat her in an attempt to get her to recant her allegations. Michelle was sent to live briefly with her grandfather and then with another aunt. Eventually, she was sent to live out-of-state with her biological father. When she returned to New Jersey, she accused him of sexual assault as well. That account was so similar to the charge against defendant that they both included the detail of the perpetrator using a towel to wipe himself and the bed after ejaculation. Charges were never pressed against Michelle’s biological father. At the time of defendant’s trial, Michelle was living in a foster home.

On September 16, 1994, Dr. Finkel examined Michelle again, this time with regard to her claims against her biological father. Michelle alleged three separate incidents involving her biological [119]*119father and recanted her original allegations concerning defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of New Jersey v. A.N.A.
New Jersey Superior Court App Division, 2026
State of New Jersey v. Jonathan E. Perez
New Jersey Superior Court App Division, 2026
State of New Jersey v. T.N.
New Jersey Superior Court App Division, 2025
State of New Jersey v. T.A.M.
New Jersey Superior Court App Division, 2025
State of New Jersey v. P.M.
New Jersey Superior Court App Division, 2025
State v. Ortega
345 Conn. 220 (Supreme Court of Connecticut, 2022)
State of Iowa v. Shanna Dessinger
Supreme Court of Iowa, 2021
State ex rel. A.R.
188 A.3d 332 (Supreme Court of New Jersey, 2018)
State of New Jersey in the Interest of A.R.
149 A.3d 297 (New Jersey Superior Court App Division, 2016)
State v. P.S.
997 A.2d 163 (Supreme Court of New Jersey, 2010)
State v. Nyhammer
932 A.2d 33 (New Jersey Superior Court App Division, 2007)
State v. Burr
921 A.2d 1135 (New Jersey Superior Court App Division, 2007)
State v. E.B.
791 A.2d 1124 (New Jersey Superior Court App Division, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
723 A.2d 588, 157 N.J. 112, 1999 N.J. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dg-nj-1999.