SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
State v. R.K. (A-39-13) (072712)
Argued October 7, 2014 -- Decided February 3, 2015
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court must determine whether defendant was afforded a fair trial, in light of numerous errors that occurred during the trial.
Defendant and his girlfriend, K.G., had two children, K.K. and R.K. Also living with them was K.G.’s daughter, C.G., then age nine. Although defendant was not C.G.’s biological father, he had been in her life since she was fifteen months old and acted as C.G.’s stepfather and disciplinarian. C.G. referred to defendant as “daddy.” On March 30, 2009, K.G. left K.K. and C.G. in her car while she ran some errands. While the children were waiting, C.G. told K.K. that defendant sometimes had her come to the couch and “rub his pee pee.” When their mother K.G. returned, K.K. told her what C.G. had said.
K.G. immediately drove home where she sat down with her daughters. C.G. told her mother that defendant had made her touch his private area “until yellow-white stuff came out” and moved her hands in a masturbatory motion. K.G. packed their belongings and called her father to pick them up. Later, at K.G.’s parents’ house, C.G. told her mother that defendant had engaged in this activity with her at least ten times. C.G. also told her that during a trip with defendant to a recycling center, defendant touched and licked her private parts. C.G. indicated that she had told defendant she did not want to engage in these activities, but defendant told C.G. that if she refused, “[she] wouldn’t be living at the house anymore.” K.G. then contacted the Little Egg Harbor Township Police Department.
On April 3, 2009, the U.S. Coast Guard apprehended defendant while he was at work on a clamming vessel at sea. Defendant denied engaging in sexual activity with C.G., stating that he had spanked C.G. in public the day before she made the allegations, and that he believed the allegations stemmed from that incident. On June 16, 2009, a grand jury charged defendant with second-degree sexual assault, second-degree endangering the welfare of a child, and fourth-degree child abuse. In a superseding indictment, defendant was also charged with first-degree aggravated sexual assault.
Before trial, the State sought permission to present testimony from K.G. and K.K. under the fresh- complaint doctrine. The testimony was intended to recount their conversations with C.G. regarding the alleged abuse. The trial court admitted the testimony as evidence of the allegation, but not as proof of the underlying claim. K.G. testified that C.G. told her defendant made her “touch his private area,” and that defendant made her “touch him and go like this until yellow-white stuff came out of his private area.” While testifying, K.G. demonstrated the masturbatory motion C.G. had made. K.G. also noted C.G.’s claim that defendant threatened to harm her, her family, and her cat if C.G. ever told anyone. K.K. also provided fresh-complaint testimony. She testified that C.G. alleged “that every night before a special occasion, [defendant] would come in and tell her to come out on the couch and rub his pee pee.” K.K. testified on direct examination: “I was kind of, like I was sad for her and I believed her because it’s really sad. She wouldn’t be making up things if it was not bad.” The trial judge did not instruct jurors that fresh-complaint testimony may not be considered as substantive evidence of the underlying allegation, and no such instruction was requested.
A defense witness, a friend of K.G., was offered for the purpose of providing testimony that K.G. had said she suspected defendant cheated on her, and that K.G. planned to leave him. The prosecutor objected on hearsay grounds. Defense counsel argued that this evidence went to bias; however, the trial judge sustained the objection, and the testimony was excluded.
1 The jury acquitted defendant of aggravated sexual assault, but failed to reach a verdict on the sexual assault charge. However, the jury found defendant guilty of endangering the welfare of a child and child abuse. Defendant moved for a new trial based on the inconsistency of the verdicts; however, the motion was denied. The trial court sentenced defendant to a nine-year prison term, with a 54-month period of parole ineligibility.
Defendant appealed. On May 17, 2013, in an unpublished, per curiam decision, the Appellate Division affirmed defendant’s conviction and sentence. The appellate panel found that the trial court did not abuse its discretion by admitting the fresh-complaint testimony and further found that K.G.’s testimony was not excessive. The panel held that neither K.G.’s nor K.K.’s testimony was “so detailed as to violate the fresh-complaint doctrine.” The panel further determined that the trial court’s failure to provide a fresh-complaint limiting instruction did not constitute plain error. This Court granted defendant’s petition for certification. 216 N.J. 365 (2013).
HELD: Admission of the fresh-complaint testimony, bolstering of the victim’s credibility, and exclusion of bias testimony constituted reversible error. These errors denied defendant a fair trial.
1. The fresh-complaint doctrine allows 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. To 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. These requirements are relaxed when they are applied to juvenile victims. The trial court is required to charge the jury that fresh-complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made. When a defendant fails to object to an erroneous or omitted limiting instruction, it is viewed under the plain-error rule, Rule 2:10-2. The error will be disregarded unless a reasonable doubt has been raised whether the jury came to a result that it otherwise might not have reached. If the State’s case is particularly strong, any fresh-complaint instruction errors may be deemed harmless. (pp. 11-15)
2. The State may not attack one witness’s credibility through another witness’s assessment of that credibility. At trial, a party may introduce evidence that an adverse witness is biased, and parties may demonstrate bias through extrinsic evidence. N.J.R.E. 607. Such extrinsic evidence may include statements or “utterances.” N.J.R.E. 803(c)(3) permits the admission of out-of-court statements that go toward a declarant’s state of mind. (pp. 15-17)
3. K.G.’s fresh-complaint testimony did more than convey the nature of C.G.’s complaint, was excessively graphic, and included threats made to the victim that were not elicited from the victim herself. New Jersey courts have been consistent in allowing fresh-complaint witnesses to provide enough basic information that the jury will have a sense of the complaint’s context. However, they “have adhered strictly and uniformly to the principle of disallowing excessive details.” State v. Bethune, 121 N.J. 137, 147 (1990). While the facts of ejaculation and masturbation may fall within the boundaries of C.G.’s testimony, K.G.’s description of the “yellow-white stuff” that “came out” was provocative and more descriptive than originally provided. Further, K.G. testified that defendant threatened C.G. Those threats were not elicited from C.G. at trial. The combination of K.G.’s description and the demonstration exceeded the proper boundaries allowed in fresh-complaint testimony. The testimony did more than rebut a charge of fabrication based on silence. The prejudicial omission of the limiting instruction, and the excessive fresh- complaint testimony denied defendant a fair trial. (pp. 17-19)
4. While C.G.’s credibility was clearly relevant, other witnesses are prohibited from giving their opinions about her credibility. In this case, the bolstering of witness testimony was prejudicial to defendant and constituted reversible error. The Court further concludes that testimony about the adverse witness’s bias was admissible and that excluding the testimony was reversible error. In light of the Court’s resolution of the fresh-complaint, bolstering and bias-evidence issues raised by defendant in this matter, it does not address the defendant’s remaining arguments. (pp. 19-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
2 SUPREME COURT OF NEW JERSEY A-39 September Term 2013 072712
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.K.,
Defendant-Appellant.
Argued October 7, 2014 – Decided February 3, 2015
On certification to the Superior Court, Appellate Division.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Richard E. McKelvey, Assistant Prosecutor, Special Deputy Attorney General, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney).
Jenny M. Hsu, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal the Court must determine whether defendant
was afforded a fair trial, in light of numerous errors that
occurred during the trial.
This case stems from a nine-year-old victim’s allegation
that her mother’s boyfriend, defendant R.K., repeatedly molested
1 her. No physical evidence of the alleged sexual assaults was
presented; therefore, the trial turned on whether the jury
believed the victim or defendant. Ultimately, defendant was
convicted of endangering the welfare of a child and child abuse.
The trial court permitted three different witnesses to
testify regarding the same underlying allegation under the
fresh-complaint doctrine. That testimony, however, included
details and graphic demonstrations, and improperly bolstered the
victim’s credibility. Thus, the purported fresh-complaint
testimony in this case went far beyond the bounds that the
doctrine permits. Moreover, defendant argues the victim’s
mother and sister improperly bolstered her credibility by
stating they believed her allegations, and that it was not in
her character to lie. Finally, defendant asserts that the trial
court erred when it barred proposed testimony from a defense
witness that defendant’s girlfriend suspected he cheated on her
and was planning to leave him as her testimony went to bias and
was admissible.
This case turned entirely on witness-believability. We
hold that the aforesaid errors that occurred denied defendant a
fair trial. For the reasons that follow, we reverse the
Appellate Division judgment. Admission of the fresh-complaint
testimony, bolstering of the victim’s credibility, and exclusion
2 of bias testimony constituted reversible error. We remand to
the trial court for a new trial.
In light of our decision of these issues, we do not address
defendant’s remaining arguments.
I.
Defendant and his girlfriend, K.G., had two children: K.K.
and R.K. Also living with them was K.G.’s daughter, C.G., then
age nine. Although defendant was not C.G.’s biological father,
he had been in her life since she was fifteen months old and
acted as C.G.’s stepfather and disciplinarian. C.G. referred to
defendant as “daddy.”
On March 30, 2009, K.G. left K.K. and C.G. in her car while
she ran some errands. While the children were waiting, C.G.
told K.K. that defendant sometimes had her come to the couch and
“rub his pee pee.” When their mother K.G. returned, K.K. told
her what C.G. had said.
K.G. immediately drove back to the house where she sat down
with her daughters. C.G. told her mother that defendant had
made her touch his private area “until yellow-white stuff came
out” and moved her hands in a masturbatory motion. K.G. packed
their belongings and called her father to pick up her and her
children.
Later, at K.G.’s parents’ house, C.G. told her mother that
defendant had engaged in this activity with her at least ten
3 times. C.G. also told her mother that during a trip with
defendant to a recycling center, defendant touched and licked
her private parts. C.G. indicated to her mother that she had
told defendant she did not want to engage in these activities,
but defendant told C.G. that if she refused, “[she] wouldn’t be
living at the house anymore.” K.G. then contacted the Little
Egg Harbor Township Police Department.
The next day, Trooper John Villamil interviewed C.G.
During the interview, C.G. omitted the allegation regarding the
incident at the recycling center. After speaking with C.G.,
Trooper Villamil sought and obtained a warrant for defendant’s
arrest. On April 3, 2009, the U.S. Coast Guard apprehended
defendant while he was at work on a clamming vessel at sea.
Defendant denied engaging in sexual activity with C.G., stating
that he never had sexual feelings towards her, nor did he ever
take her out of her bedroom. Defendant indicated his belief
that C.G. began to resent him when K.G. sent their cat away,
after defendant placed the cat in the same pen as their pit
bull. Moreover, defendant stated that he and C.G. argued
because C.G. did not keep up with her schoolwork. Defendant
said that he had spanked C.G. in public the day before C.G. made
the allegations, and that he believed the allegations stemmed
from that incident.
4 After defendant’s arrest, Trooper Villamil interviewed K.G.
It was then that the trooper was informed about what had
happened at the recycling center. The case was transferred to
the Atlantic County Prosecutor’s Office. Detective Bill Adamson
attempted to interview C.G. but she became upset when asked
about the recycling center incident. Eventually, C.G. confirmed
the cunnilingus allegation to the detective.
A.
On June 16, 2009, a grand jury charged defendant with:
second-degree sexual assault, contrary to N.J.S.A. 2C:14-2b;
second-degree endangering the welfare of a child, contrary to
N.J.S.A. 2C:24-4; and fourth-degree child abuse, contrary to
N.J.S.A. 9:6-3. On January 6, 2011, defendant was charged in a
superseding indictment with: first-degree aggravated sexual
assault, contrary to N.J.S.A. 2C:14-2(a); second-degree sexual
assault, contrary to N.J.S.A. 2C:14-2(b); second-degree
endangering the welfare of a child, contrary to N.J.S.A. 2C:24-
4; and fourth-degree child abuse, contrary to N.J.S.A. 9:6-3.
Between May 2 and May 6, 2011, defendant was tried before a
jury. The State presented C.G., K.G., K.K., and the two
investigating officers as witnesses. Defendant testified and
presented several character witnesses on his behalf.
Before trial, the State sought permission to present
testimony from K.G. and K.K. under the fresh-complaint doctrine.
5 The testimony was intended to recount their conversations with
C.G. regarding the alleged abuse. The trial court admitted the
testimony as evidence of the allegation, but not as proof of the
underlying claim.
At trial, K.G. testified that C.G. told her defendant made
her “touch his private area,” and that defendant made her “touch
him and go like this until yellow-white stuff came out of his
private area.” While testifying, K.G. demonstrated the
masturbatory motion C.G. had made. K.G. also noted C.G.’s claim
that defendant threatened to harm her, her family, and her cat
if C.G. ever told anyone.
K.K. also provided fresh-complaint testimony. She
testified that C.G. alleged “that every night before a special
occasion, [defendant] would come in and tell her to come out on
the couch and rub his pee pee.” K.K. testified on direct
examination: “I was kind of, like I was sad for her and I
believed her because it’s really sad. She wouldn’t be making up
things if it was not bad.”
The trial judge did not instruct jurors that fresh-
complaint testimony may not be considered as substantive
evidence of the underlying allegation, and no such instruction
was requested.
B.
6 A defense witness, a friend of K.G., was offered for the
purpose of providing testimony that K.G. had said she suspected
defendant cheated on her, and that K.G. planned to leave him.
The prosecutor objected on hearsay grounds. Defense counsel
argued that this evidence went to bias; however, the trial judge
sustained the objection, and the testimony was excluded.
C.
The jury acquitted defendant of aggravated sexual assault,
but failed to reach a verdict on the sexual assault charge.
However, the jury found defendant guilty of endangering the
welfare of a child and child abuse. Defendant moved for a new
trial based on the inconsistency of the verdicts; however, the
motion was denied.
The trial court sentenced defendant to a nine-year prison
term, with a 54-month period of parole ineligibility.
II.
Defendant appealed. On May 17, 2013, in an unpublished,
per curiam decision, the Appellate Division affirmed defendant’s
conviction and sentence.
The appellate panel found that the trial court did not
abuse its discretion by admitting the fresh-complaint testimony.
The panel found that K.G.’s testimony was not excessive, and
that it instead was “limited to the details necessary to
describe the nature of C.G.’s complaint.” Moreover, the panel
7 held that neither K.G.’s nor K.K.’s testimony was “so detailed
as to violate the fresh-complaint doctrine.” Finally, the panel
determined that the trial court’s failure to provide a fresh-
complaint limiting instruction did not rise to the level of
plain error. This Court granted defendant’s petition for
certification. State v. R.K., 216 N.J. 365 (2013).
III.
Defendant argues that the trial court’s admission of overly
detailed and cumulative fresh-complaint testimony was plain
error. Further, defendant argues that the trial court’s failure
to provide a limiting instruction -- that fresh-complaint
testimony may not prove defendant’s guilt nor bolster a victim’s
credibility -- was plain error.
Defendant contends that K.G.’s testimony was excessive, as
it included “graphic details.” Specifically, K.G. reenacted the
“graphic physical demonstration” C.G. gave her mother.
Defendant argues that K.K.’s testimony was duplicative and
bolstered C.G.’s credibility because K.K. indicated that C.G.
would not make things up. Defendant further argues that K.G.
was biased against him, and the trial court improperly excluded
K.G.’s friend’s admissible testimony supporting that bias.
Defendant argues that there were several additional errors
at trial. Defendant claims that the prosecutor improperly used
defendant’s prior convictions during her cross-examination.
8 Defendant argues that the prosecutor’s assertion that he had “no
problem breaking the law” suggested he had a criminal character,
and was therefore guilty.
Moreover, defendant argues that the prosecutor improperly
bolstered C.G.’s credibility in her summation, misinformed the
jury by stating they “are the law,” and commented on C.G.’s
“future memories,” a fact that was not in evidence.
Defendant also contends that Trooper Villamil’s testimony,
which created the impression that defendant was so dangerous he
had to be apprehended at sea, was prejudicial and unnecessary.
In response, the State argues that the admission of fresh-
complaint testimony was not erroneous. The State asserts that
K.G. testified with minimal detail, that each component of
K.G.’s testimony was necessary, and that she did not exceed any
facts provided by C.G. herself. As to K.K.’s testimony, the
State argues that it was not cumulative, and that it was
important for the jury to hear K.K.’s side of the story.
The State notes that defendant failed to request a limiting
instruction, and contends that the court’s failure to provide
such an instruction does not rise to the level of plain error.
The State also maintains that it complied with the trial
judge’s instructions regarding defendant’s prior convictions:
the prosecutor did not improperly use the prior convictions
during cross-examination; the jury was properly instructed on
9 those convictions; and no connection could be drawn between
defendant’s past crimes and the charged offense.
With respect to the witness testimony, the State submits
that Trooper Villamil’s reference to the warrant was not
prejudicial, and that K.K.’s testimony did not violate
defendant’s right to a fair trial. The State argues that
excluding evidence of K.G.’s bias was correct, because the
information was remote and only tenuously connected to the
allegations against defendant.
As to the summation, according to the State, the prosecutor
summarized the State’s evidence, rejected the defense’s theory,
and framed jurors as the fact-finders. The State views the
prosecutor’s statement that “C.G. had no reason to lie” as
directly responsive to defense counsel’s assertion that C.G.
wanted to get rid of defendant and resented his discipline.
Further, the State argues that the prosecutor properly responded
to defense counsel’s highlighting of C.G.’s failure to complain
consistently and her failure to complain at an earlier time.
The State argues that the prosecutor did not “inflame the
jurors’ passions,” but instead, persuaded the jury to convict
based on its factual findings.
Finally, the State contends that defendant’s argument
regarding the inconsistent verdict is contrary to well-
10 established law, the verdicts were supported by the evidence,
and defendant’s sentence was not excessive.
The Attorney General, as amicus, argues that the fresh-
complaint testimony is appropriate and that the omission of a
limiting instruction was not erroneous. Further, the Attorney
General contends that the fresh-complaint testimony “added
practically nothing” because C.G. provided a more detailed
account than any of the fresh-complaint witnesses. Finally, the
Attorney General argues that even if the testimony violated the
fresh-complaint doctrine, it would have been admitted under the
tender-years exception to the hearsay rule because C.G. was
under twelve when she made these allegations.
IV.
Our evaluation of defendant’s primary argument requires
that we first examine the fresh-complaint doctrine. That
doctrine allows 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. See State v. Hill, 121
N.J. 150, 163 (1990); State v. Balles, 47 N.J. 331, 338 (1966),
cert. denied, 388 U.S. 461, 87 S. Ct. 2020, 18 L. Ed. 2d 1321
(1967). In order to qualify as fresh-complaint evidence, the
victim’s statement must have been made spontaneously and
11 voluntarily, within a reasonable time after the alleged assault,
to a person the victim would ordinarily turn to for support.
State v. W.B., 205 N.J. 588, 616 (2011); Hill, supra, 121 N.J.
at 163 (citing State v. Tirone, 64 N.J. 222, 226-27 (1974));
Balles, supra, 47 N.J. at 338-39. These requirements are
relaxed when they are applied to juvenile victims. State v.
Bethune, 121 N.J. 137, 143-44 (1990). This Court has recognized
that children may be “too frightened and embarrassed to talk
about” the sexual abuse they have encountered, and therefore,
juvenile victims are given additional time to complain, and
their complaint may be elicited through non-coercive
questioning. Ibid.
Only the facts that are minimally necessary to identify the
subject matter of the complaint should be admitted; the fresh-
complaint testimony is not to be used “to corroborate the
victim’s allegations concerning the crime.” Id. at 146; see
also W.B., supra, 205 N.J. at 617 (“A witness may testify only
to the general nature of the complaint, and unnecessary details
of what happened should not be repeated.”). Therefore, the
trial court is required to charge the jury that fresh-complaint
testimony is not to be considered as substantive evidence of
guilt, or as bolstering the credibility of the victim; it may
only be considered for the limited purpose of confirming that a
complaint was made. Bethune, supra, 121 N.J. at 147-48; State
12 v. P.H., 178 N.J. 378, 393 (2004) (asserting that Bethune
“required” courts to give limiting instruction).
When a defendant fails to object to an erroneous or omitted
limiting instruction, it is viewed under the plain-error rule,
Rule 2:10-2. Thus, the error will be disregarded unless a
reasonable doubt has been raised whether the jury came to a
result that it otherwise might not have reached. State v.
Daniels, 182 N.J. 80, 95 (2004). Plain error is more likely to
be found if there is any indication that jurors considered the
fresh-complaint testimony for an improper purpose. See, e.g.,
State v. Williams, 377 N.J. Super. 130, 152 (App. Div.), certif.
denied, 185 N.J. 297 (2005). However, if the State’s case is
particularly strong, any fresh-complaint instruction errors may
be deemed harmless. Tirone, supra, 64 N.J. 227.
Finally, in order to reduce the possibility of duplicative
testimony, trial courts have discretion to determine whether
multiple fresh-complaint witnesses may testify. Hill, supra,
121 N.J. at 169. This exercise of discretion depends on the
strength of the State’s case because the testimony may have
already been established by prior witnesses. Id. at 169-70. If
the trial judge finds that the fresh-complaint criteria has been
met, then he or she may “assess, in light of the rule’s narrow
purpose of negating inferences that the victim had failed to
13 complain, whether repeated testimony” would be irrelevant or
prejudicial. Ibid.
In Bethune, supra, fresh-complaint testimony was elicited
from a hospital worker, who referenced the “specific act of
penetration,” and indicated that the child had been assaulted
“many times.” 121 N.J. at 147. Contrary to the worker’s
statement, however, the victim testified that there had only
been a single incident of assault. Ibid. Further, the
defendant was only on trial for “one specific incident of sexual
abuse.” Ibid. Therefore, the Court concluded that the hospital
worker’s testimony was “highly prejudicial to [the] defendant,”
and appeared to be “excessively detailed to qualify under the
fresh-complaint rule” because no other evidence supported those
claims. Ibid. However, the Court ultimately found the
testimony admissible under the tender-years exception to the
hearsay rule, ibid., which states:
[A] statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii)
14 the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.
[N.J.R.E. 803(c)(27).]
In Balles, supra, the Court determined that fresh-complaint
testimony is not improper when the testimony “merely show[s] the
nature of the complaints . . . [that] would have been
unintelligible” had more detail not been given. 47 N.J. at 339.
In that case, a mother testified that her daughter indicated the
defendant had “put his hands down her panties and had touched
here.” Ibid. The Court found that the mother did not elaborate
on the victim’s testimony, and instead determined that what the
mother said was necessary to get the point across clearly and
intelligently. Ibid.
We next turn to bolstering of witness testimony. The State
may not attack one witness’s credibility through another
witness’s assessment of that credibility. State v. Frisby, 174
N.J. 583, 593-94 (2002); State v. Clausell, 121 N.J. 298, 337-38
(1990). In Frisby, supra, the court found that an
investigator’s testimony was erroneous when he testified that
one witness was “more credible” than the other. 174 N.J. at
15 594-96. Likewise, in Clausell, supra, the court found that when
a police composite artist testified that the key prosecution
witness was a “very good witness,” he “improperly bolstered
[her] credibility,” even in the absence of an objection. 121
N.J. at 338.
If a defendant fails to object to improper testimony at
trial, the plain error rule applies. See R. 2:10-2; State v.
Bogen, 13 N.J. 137, 141-42 (“Ordinarily a defendant will not be
heard to claim prejudice if defense counsel does not interpose a
timely and proper objection to the improper remarks. . . .”),
cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).
We also consider the admissibility of bias evidence. At
trial, a party may introduce evidence that an adverse witness is
biased. State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div.
1996) (“It is elementary that a party may show bias, including
hostility, of an adverse witness.” (quoting State v. Smith, 101
N.J. Super. 10, 13 (App. Div. 1968), certif. denied, 53 N.J. 577
(1969))); see also Clayton v. Freehold Twp. Bd. of Educ., 67
N.J. 249, 253 (1975); State v. Pontery, 19 N.J. 457, 472 (1955)
(“[I]t is proper for either the defense or the prosecution to
show the interest of a witness as bearing upon the witness’
credibility.”).
16 Parties may demonstrate bias through extrinsic evidence.
N.J.R.E. 607. Such extrinsic evidence may include statements or
“utterances”:
The objection on the ground of hearsay to defendant’s proffer of witnesses who would have testified about [a key State witness’s] threats against defendant was also mistaken. Wigmore states the pertinent rule as follows: “Utterances indirectly indicating fear, ill- will, excitement, or other emotion on the part of the speaker are also admissible, whether the person be one whose state of mind is in issue . . . or a witness whose bias is to be ascertained.”
[Gorrell, supra, 297 N.J. Super. at 149-50 (quoting 6 Wigmore on Evidence § 1790 at 326 (Chadbourn rev. 1976)).]
Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted” therein. N.J.R.E. 801. N.J.R.E.
803(c)(3) permits the admission of out-of-court statements that
go toward a declarant’s state of mind.
We now turn to the facts of this case and consider whether
defendant was provided a fair trial.
Here, K.G.’s fresh-complaint testimony was excessive. It
did more than convey the nature of C.G.’s complaint, was
excessively graphic, and included threats made to the victim
that were not elicited from the victim herself.
17 Our courts have been consistent in allowing fresh-complaint
witnesses to provide enough basic information that the jury will
have a sense of the complaint’s context. E.g., Balles, supra,
47 N.J. at 339 (determining that testimony that defendant put
his hands down victims panties and touched here was
permissible). However, our courts “have adhered strictly and
uniformly to the principle of disallowing excessive details.”
Bethune, supra, 121 N.J. at 147.
Here, C.G. claimed that defendant forced her to touch and
masturbate his penis, and that he touched and licked her vagina.
When K.G. testified, however, her testimony went beyond C.G.’s
and asserted that defendant made C.G. “touch him and go like
this until yellow-white stuff came out of his private area.”
K.G. also demonstrated for the court the masturbatory motion.
While the facts of ejaculation and masturbation may fall within
the boundaries of C.G.’s testimony, K.G.’s description of the
“yellow-white stuff” that “came out” was provocative and more
descriptive than originally provided.
Further, K.G. testified that defendant threatened C.G.,
saying that if she told anyone, “he would hurt her and he would
hurt her family and her cat.” Those threats were not elicited
from C.G. at trial.
The combination of K.G.’s description and the demonstration
exceeded the proper boundaries allowed in fresh-complaint
18 testimony. The testimony did more than rebut a charge of
fabrication based on silence.
Further, the testimony elicited from K.G. was not only
excessive, it was prejudicial. The narrow purpose of fresh-
complaint testimony extends only to the fact of the victim’s
complaint, not to its details. W.B., supra, 205 N.J. at 616-17;
Hill, supra, 121 N.J. at 163.
We further find that the State’s case was premised in its
entirety on witness credibility, given defendant’s affirmative
denial and the lack of physical evidence. Thus, the prejudicial
omission of the limiting instruction, and the excessive fresh-
complaint testimony denied defendant a fair trial. Therefore,
we reverse on those grounds.
We turn next to assess whether C.G.’s stepsister, K.K. and
their mother, K.G. improperly bolstered C.G.’s credibility and
thereby prejudiced defendant.
While C.G.’s credibility was clearly relevant, other
witnesses are prohibited from giving their opinions about her
credibility. See Frisby, supra, 174 N.J. at 591-96; Clausell,
supra, 121 N.J. at 337-38. K.K.’s testimony violated this
principle when she testified that she “believed” her sister, and
that C.G. “wouldn’t be making things up if it was not bad.”
K.K.’s testimony further violated this principle, when, in
19 response to a question about whether or not C.G. told lies
before, she testified “[n]ot like this. She would never lie
about something like this.”
Because there was no objection at trial to these comments,
the errors call for a plain-error analysis. In Frisby, supra,
171 N.J. at 594-96, no objection was made to the use of improper
bolstering testimony. We nevertheless found the testimony
plainly erroneous, noting that “[t]his case was a pitched
credibility battle between [two individuals] on the pivotal
issue of whether [one person] promised to care for [another].
Any improper influence on the jury that could have tipped the
credibility scale was necessarily harmful and warrants
reversal.” Id. at 596. This case calls for the same result.
Here, like in Frisby, this case presented a “pitched credibility
battle” between C.G. and defendant over who was telling the
truth. As such, the improper witness bolstering was harmful to
defendant and prejudiced his case. Therefore, we conclude that
the bolstering of witness testimony was prejudicial to defendant
and constituted reversible error.
We also conclude that the testimony about the adverse
witness’s bias was admissible. The proffered testimony that
K.G.’s friend knew defendant had cheated on K.G., and
apparently, that K.G. intended to leave him was not hearsay
because it was not being offered for the truth that defendant
20 was cheating or that K.G. planned to leave, but rather, to show
that K.G. might have an interest to lie about defendant. We
therefore find that excluding the bias testimony was also
reversible error.
Defendant also raises several other arguments.
Specifically he contends that the trooper’s reference to the
arrest warrant during his testimony was misleading and
prejudicial. During his testimony, the trooper testified to the
circumstances of how he obtained the warrant and to the
circumstances of the arrest, stating “[t]he defendant was
apprehended by the U.S. Coast Guard. He was on a clam[m]ing
vessel out at sea and they boarded the ship and took custody of
him.”
Defendant also contends that the admission of prior
conviction evidence was erroneous. Before defendant testified,
the trial court determined that defendant’s prior convictions
were admissible in order to attack his credibility. However,
the trial judge limited admission to the number, degree, and
nature of offenses, not to the counts or the facts. During
direct examination of defendant, defendant discussed his prior
convictions.
On cross-examination, the prosecutor asked the following
questions: “So you have no problem breaking the law if it’s
21 necessary for your needs, correct?”; “You do what you have to do
to get what you want, correct?”; “Well, you certainly weren’t
law-abiding when you committed those crimes, were you?”; “But
now you’ve told this jury today you would never do anything to
[C.G.], right?”
Defendant further contends that during the State’s
summation the prosecutor asserted that C.G. “had an incentive to
tell the truth” and “has no reason to lie.” In her conclusion,
the prosecutor stated:
[m]embers of the jury, when we all look back on our childhoods, we think about baseball games, playing soccer, maybe some ballet lessons, but when [C.G.] thinks back on her childhood, she’s going to remember the defendant and she’s going to remember what he did to her. You, ladies and gentlemen, you are the law here today. You have the power. Tell that man I know what you did to [C.G.]. Tell him you know what he made [C.G.] do. Tell him he’s not going to get away with it. Find the defendant guilty on all counts of the indictment. Thank you.
D.
In light of our resolution of the fresh-complaint,
bolstering and bias-evidence issues raised by defendant in this
matter, we do not address the defendant’s arguments regarding
the trooper’s reference to the arrest warrant, the prosecutor’s
use of prior convictions during cross-examination and the
prosecutor’s summation. However, we note that defendant’s
arguments raise concerns regarding the propriety of the
22 trooper’s reference to the arrest warrant and the prosecutor’s
cross-examination and summation. Our determination not to
address those issues does not signify our approval.
VI.
For the reasons set forth above, the judgment of the
Appellate Division is reversed and the case is remanded for a
new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
23 SUPREME COURT OF NEW JERSEY
NO. A-39 SEPTEMBER TERM 2013 ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.K., Defendant-Appellant.
DECIDED February 3, 2015 Chief Justice Rabner PRESIDING OPINION BY Justice Fernandez-Vina CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY
REVERSE AND CHECKLIST REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7