State v. G.C.

902 A.2d 1174, 188 N.J. 118, 2006 N.J. LEXIS 1140
Supreme Court of New Jersey·Decided July 24, 2006·Published·Cited by 15 cases

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

The competence of a witness to testify resides at the core of all contested judicial proceedings. In this appeal we must determine what is required in order to declare a child sexual abuse victim competent to testify.

We reaffirm our settled law, that the determination of a witness’ competence to testify resides in the sound discretion of the trial court, and hold that there was no abuse of discretion in the trial court’s determination that the child witness here was competent. We also reaffirm the provisions of our Evidence Rules that presume that every person is competent to testify unless, among other things, “the proposed witness is incapable of understanding the duty to tell the truth[.]” N.J.R.E. 601(b). We further hold [121] that the provisions of N.J.R.E. 603 requiring an oath, affirmation or declaration to tell the truth under penalty of law are included within N.J.R.E. 601’s requirement that a competent witness understand the duty to testify truthfully.

I.

A.

The relevant facts are straightforward. At the time of their separation in late 1999/early 2000, defendant G.C.* 1 and his estranged wife Elizabeth were the parents of two young daughters, Doris (then age one year and five months) and her younger sister Kate (then an infant). When they separated, defendant returned to his father’s home and Elizabeth and her two daughters returned to her mother’s home, where Elizabeth’s grandmother (the girls’ great-grandmother) also lived. Elizabeth retained custody of the children. As of January 2002, when Doris was approximately three years and five months old, and Kate was approximately two years old, defendant and Elizabeth agreed that defendant could visit his daughters on Sundays, from 1:00 p.m. until 8:00 p.m. In practice, defendant would go to Elizabeth’s family home, retrieve his daughters, and take them to his aunt’s house [122] for the day, where they would play with their cousins until it was time to return home.

After the Sunday visitations started, Elizabeth noticed a change in Doris. According to her mother, Doris’s “attitude got stronger.” After the fourth or fifth visitation on February 3, 2002, Doris awoke in the middle of the night, crying and saying “don’t touch me, leave me alone.” Elizabeth sought to comfort her daughter and, based on Doris’s cries, asked if anyone was touching her. Doris did not respond, but immediately went back to sleep. Those events repeated themselves later that same night.

The next day Elizabeth discussed Doris’s nocturnal outbursts with a visiting nurse. The nurse suggested that Elizabeth question Doris during the daytime and ask whether anyone was touching her. However, when Elizabeth broached the subject with Doris the following day, she appeared scared and would not answer. Elizabeth persisted, reassuring Doris that she did not have to be scared. Doris then stated that defendant was touching her vagina; Doris did not use the word “vagina” but, instead, she used an ethnic slang term for “vagina” her mother had taught her. Elizabeth then repeated to her mother what Doris had just told her. Elizabeth’s mother met with Doris alone and asked her to describe what her father had done to her. Once Doris did so, Elizabeth’s mother asked Elizabeth to join them, but to bring a doll with her. Elizabeth and her mother gave the doll to Doris and asked her to show them where her father had touched her. In response, Doris mimicked a rubbing motion over the doll’s vaginal area.

In the meanwhile, the visiting nurse contacted the Division of Youth & Family Services (DYFS) and notified DYFS of what Elizabeth had told her earlier that day. That same night, Peter Yzekwu,2 a DYFS caseworker, telephoned Elizabeth and, two days [123] later, on February 7, 2002, he went to Doris’s home, where he spoke separately with Elizabeth, her mother, and Doris. Yzekwu specifically asked Doris why she was waking up in the middle of the night screaming, and Doris explained it was because defendant “was touching her private part[,]” again using the term her mother had taught her for her vagina. In his conversation with Doris, Yzekwu used a diagram of a female doll and, in order to focus Doris on the difference between appropriate and inappropriate touching, he asked her about “good touch” versus “bad touch” areas of the body. With those instructions, he asked Doris to identify different parts of the body. When Yzekwu pointed to the vaginal area on the diagram, Doris explained that it was a “bad touch” area and that it was there that her father had touched her. After that interview, Yzekwu transported Doris to the hospital for a physical examination and referred the matter to the County Prosecutor’s Office. Doris’s physical examination revealed nothing remarkable.

Investigator Lisa Collins was assigned to lead this investigation. On February 8, 2002, the day following Yzekwu’s interview of Doris, Collins videotaped an interview with Doris. In respect of her descriptions of her father touching her vaginal area, Doris’s statements in the videotaped interview were consistent with what she had told her mother, her grandmother, and Yzekwu. Doris also explained that her father had touched her with his genitalia, and that he had also touched her buttocks.

On February 20, 2002, Collins interviewed defendant. After defendant was advised of, acknowledged, and waived in writing his Miranda3 rights, defendant denied that he had inappropriately touched his daughter. Collins’s inquiries regarding that denial led to defendant’s admission that he had rubbed Doris’s vagina with his hand, but he claimed that it was in connection with wiping her [124] clean after she had used the bathroom. Collins persisted and asked if defendant had inserted his finger into Doris’s vagina. Defendant first admitted he had done so accidentally. After additional questioning by Collins, defendant later retracted that explanation, admitted that he had inserted his finger into Doris’s vagina, that it was not the result of an accident, and that he knew what he was doing at the time. At Collins’s request, defendant agreed to provide an audiotaped statement, where he admitted that he “wiped [Doris] with some toilet tissue and [his] finger went inside of her.” Once the audiotaped interview was concluded, defendant was arrested.

The grand jury charged defendant with first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a, second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a.

B.

On August 19, 2003, the day before defendant’s trial started, the trial court heard several pre-trial applications, including the State’s application, pursuant to the “tender years” exception to the hearsay rule, N.J.R.E. 803(c)(27), to admit Doris’s hearsay statements about what defendant did to her. That led to the following colloquy between the trial court and defense counsel:

[DEFENSE COUNSEL]: I presume that at some point in time the Court is going to determine the competency of the young—

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State v. G.C., 902 A.2d 1174, 188 N.J. 118, 2006 N.J. LEXIS 1140 (N.J. 2006).

902 A.2d 1174 (State v. G.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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