April 28, 2011

Police should not destroy initial notes State v. W.B. (A-80-09) Decided April 27, 2011

Police should not destroy initial notes

State v. W.B. (A-80-09) Decided April 27, 2011

The issues in this appeal are: (1) the admissibility of defendant’s recorded statement; (2) the implications of a police officer destroying his or her notes after producing a final report; (3) whether expert testimony about the statistical credibility of the victim was admissible and, if not, whether its admission was reversible error; (4) whether testimony regarding the victim’s complaint more than one and one-half years after defendant’s sexual assault was admissible under the fresh complaint rule; (5) the propriety of the jury charge; and (6) whether the trial court abused its discretion in permitting the playback of defendant’s videotaped confession, which had not been admitted into evidence.

On January 1, 2005, after being sexually assaulted by her cousin, sixteen-year-old D.L. told J.C., her former boyfriend, about her cousin’s assault and that defendant, her stepfather, also sexually assaulted her when she was fourteen. DYFS and the Passaic County Prosecutor’s Office (PCPO) were contacted. After DYFS spoke with D.L., several detectives, including Detective Donna Gade, went to defendant’s home and waited for defendant. Upon his arrival, defendant was met by the detectives outside his home and agreed to accompany Detective Gade to the PCPO to discuss a family problem. D.L. and her mother also agreed to go to the PCPO. They arrived around 11:00 p.m. and were placed in separate rooms. Detective Gade first interviewed D.L., who said that defendant had sexually assaulted her on two separate occasions. D.L.’s statement was typed between 12:27 a.m. and 1:40 a.m. D.L. reviewed it, initialed the top and bottom of each page, and signed and swore to the truthfulness of her statement.

Detective Gade subsequently took defendant to an interview room for questioning. She first administered Miranda warnings to defendant using the PCPO’s Miranda rights and waiver form. Defendant initialed each right, and also signed the form’s “waiver of rights” portion. After 2:10 a.m, Detective Gade began to interview defendant. He initially denied D.L.’s allegations. After sitting for a while and thinking, however, defendant admitted that he had sex with D.L. and agreed to provide a written statement. At approximately 3:42 a.m., Detective Gade took defendant’s transcribed and videotaped statement, in which he acknowledged having sexual relations with D.L. twice. He also acknowledged that he voluntarily accompanied Detective Gade to the PCPO that night. Defendant reviewed and initialed each page of the statement and signed it at the end. His formal statement ended after 4:00 a.m., and he was arrested and charged at approximately 5:00 a.m.

At trial, D.L. recanted her earlier statement. D.L. stated that because defendant and her mother did not approve of her relationship with J.C., she made the false statement to interfere with their relationship. Defendant testified that prior to arriving home on the night he was taken to the PCPO, he drank several alcoholic beverages. Upon arriving home, he was grabbed by a police officer, patted down, and put into a police vehicle without an opportunity to refuse. He testified that he did not know why he was at the PCPO, was left waiting in a locked room for hours without food or drink, and was tired and intoxicated. According to defendant, he was then taken to another room where Detective Gade told him to sign a piece of paper, which he believed was the Miranda form. He could not, however, remember if he understood his rights. Defendant also testified that although he initially denied the allegations, after Detective Gade repeated the details over and over again, and stated that defendant had to tell her what she wanted to hear to go home, he told her “what she wanted to hear.” In addition, Dr. Richard Coco, a Child Sexual Abuse Accommodation Syndrome (CSAAS) expert, provided testimony, which included an assertion that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse. Furthermore, the court provided the model CSAAS jury charge, as amended by State v. P.H., 178 N.J. 378 (2004). Finally, defendant’s videotaped confession, which was never moved into evidence, was played back to the jury during its deliberations. Defendant was convicted and the Appellate Division affirmed. The Court granted defendant’s petition for certification. 201 N.J. 442 (2010).

HELD: (1) Defendant’s recorded statement was admissible; (2) if a law enforcement officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge; (3) Dr. Coco’s statistics-based expert testimony on victim credibility was beyond the permissible scope of CSAAS evidence, but it did not compel reversal; (4) testimony regarding D.L.’s complaint more than one and one-half years after defendant’s sexual assault was properly admitted as fresh complaint testimony; (5) defendant’s conviction is not reversible based on the jury charge provided; and (6) the playback of defendant’s videotaped confession did not constitute an abuse of discretion.

1. Defendant’s voluntary agreement to accompany Detective Gade to headquarters negated the need for probable cause to take him to the PCPO. It was appropriate to keep him separated while gathering information to safeguard D.L. In addition, defendant’s confession was admissible because the record supports the lower courts’ findings that defendant’s recorded statement was made voluntarily and not coerced, and that defendant knowingly, voluntarily and intelligently waived his Miranda rights.

2. After producing their final reports, law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime. Our criminal discovery rules provide for discovery of all statements of witnesses and police reports that are “in the possession, custody and control of the prosecutor.” Rule 3:13-3 encompasses the writings of any police officer under the prosecutor’s supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor’s office for discovery purposes. Implementation of this retention and disclosure requirement is deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. Here, although Detective Gade destroyed her notes after writing her report, because defendant neither requested an adverse inference charge before the jury instructions were given, nor raised the issue before filing his motion for a new trial, he was not entitled to such an instruction.

3. CSAAS expert testimony is permissible to explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny anything occurred. CSAAS evidence cannot be used as probative testimony of the existence of sexual abuse in a particular case. Dr. Coco’s expert testimony, that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse, creates an inference that D.L. told the truth in her original accusation, and is beyond the permissible, limited scope of CSAAS evidence. Accordingly, such expert testimony about the statistical credibility of a victim is inadmissible.

4. Convictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have prejudiced the defendant or affected the end result. Based on the totality of the circumstances, Dr. Coco’s testimony did not unduly prejudice defendant or deprive him of a fair trial because: (1) Dr. Coco repeatedly clarified that the purpose of his testimony was to advise the jury about characteristics child abuse victims may exhibit; (2) it was clear that D.L. was almost an adult and, therefore, at the age of intellect and experience at which more alleged abuse victims may lie; (3) defense counsel, on cross-examination, addressed the issue of falsification by children at different age levels; (4) the State did not refer in summation to the portion of Dr. Coco’s testimony concerning the percentage of young women who lie; and (5) the trial judge provided a detailed and exhaustive jury charge concerning the proper use of CSAAS testimony. In addition, there was sufficient other evidence on which to sustain the convictions.

5. Testimony that D.L. complained to J.C. more than one and one-half years after defendant’s sexual assault was properly admitted under the fresh complaint rule. To qualify as a fresh complaint, the victim’s statements to someone he or she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. D.L. met the spontaneity prong when she told J.C. about defendant’s past conduct almost immediately after her cousin’s sexual assault. The reasonable time requirement must be applied more flexibly in cases involving children in light of their special vulnerability to being coerced into silence, their reluctance to report a sexual assault, and their limited understanding of what was done to them. Here, the record, including that D.L. lived with defendant before her disclosure, and that she was afraid to


report the abuse, supports the conclusion that the interval between the assault and the complaint was reasonable.

6. The Court finds no basis on which to reverse the conviction because the model CSAAS jury charge, as amended by P.H., was given and the fresh complaint charge was not. P.H.’s suggested preface to the model CSAAS charge, however, did not cast the charge in stone. To the extent a defendant may believe the word “automatically” -- in the instruction that “[you may not automatically conclude that [complaining witness’s] testimony is untruthful based on [his or her] silence/delayed disclosure” -- unduly limits the jury’s right and obligation to evaluate credibility, the word “automatically” is to be substituted by the words “may or may not conclude that . . .,” or words of like effect.

7. The playback of defendant’s videotaped confession during jury deliberations did not constitute an abuse of discretion requiring reversal because: (1) the playback was in open court; (2) the videotape was played to the jury as part of the State’s case; (3) the trial itself was videotaped and there was no court reporter available to read back what was played to the jury; and (4) as evidenced by his summation, defendant relied on the statement.

The judgment of the Appellate Division is AFFIRMED.

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