August 5, 2011

STATE OF NEW JERSEY v. D.K. A-1818-09T2 June 1, 2011



DOCKET NO. A-1818-09T2

STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.K., Defendant-Appellant.

Submitted March 23, 2011 - Decided June 1, 2011

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1272.

Thomas J. Buck, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).


In this appeal of defendant's conviction for the sexual abuse of his stepson, B.D., we reverse and remand for a new trial due to the judge's admission of photographs of defendant's stepdaughter, C.D. The State was permitted to use these so-called "distasteful" photographs to challenge the credibility of defendant's testimony that he had a good parental relationship with his stepdaughter and never sexually abused her. Because the judge erred in admitting the photographs due to their slim nexus to the charges in question and their potential for prejudice -- an error exacerbated by the lack of cautionary instructions for the jury -- we remand for a new trial.


In 2005, defendant was indicted and charged in a multi-count indictment with the sexual abuse of A.D. and B.D. As to the former, defendant was charged with: second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree official misconduct, N.J.S.A.2C:30-2 (count four). And, as to B.D., defendant's stepson, he was charged with: first-degree aggravated sexual assault,N.J.S.A. 2C:14-2a (count five); second-degree sexual assault, N.J.S.A. 2C:14-2c (count six); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven); first-degree endangering the welfare of a child,N.J.S.A. 2C:24-4b(3) (count eight); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count nine).

Counts seven, eight, and nine were dismissed prior to trial. In July 2006, the remaining six counts, involving both alleged victims, were the subject of a single trial. The jury returned a guilty verdict on all the charges pertaining to A.D. (counts one through four), but was unable to reach a verdict on the remainder. In December 2006, defendant was retried and found guilty on the charges pertaining to B.D. (counts five and six). Defendant was sentenced to an aggregate five-year prison term on counts one through four, and a consecutive aggregate twelve-year prison term, with a six-year period of parole ineligibility, on counts five and six.

We reversed, holding that the charges should have been severed because the alleged offenses involving B.D. and those involving A.D. were different in many respects and also were alleged to have occurred eight years apart. For these and other reasons, we remanded for new, separate trials. State v. D.K., Nos. A-3688-06 and A-5182-06 (App. Div. Aug. 15, 2008), certif. denied, 196 N.J. 601 (2008).

Defendant was retried on the charges pertaining to B.D. in June 2009. The jury found him guilty of first-degree aggravated sexual assault (count five) and second-degree sexual assault (count six); on the former, defendant was sentenced to a twelve-year prison term with a six-year period of parole ineligibility, and on the latter, the judge imposed a concurrent seven-year prison term with a three-year period of parole ineligibility. Defendant later pled guilty to counts one and four, offenses relating to A.D., and was sentenced to a concurrent, aggregate six-year prison term.


Defendant appealed, presenting the following arguments with respect to his trial on the charges pertaining to B.D. and the sentence imposed as a result:






We find insufficient merit in Points III and IV1 to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because we conclude that the admission of the photographs referred to in Point I requires reversal, we need not address the issues raised in Points II and V.


In Point I, defendant argues he was deprived of a fair trial on the charges that he sexually abused his stepson, B.D., because of the State's use of photographs he took of his stepdaughter, C.D. In explaining why we agree with defendant's argument that he is entitled to a new trial, we are required to explain at some length the relevant testimony and consider the judge's earlier rulings, by which he barred the use of the photographs, and the circumstances that led to his ultimate determination to permit their use.


The evidence reveals that defendant married B.D.'s mother and lived with B.D. from the time he was eleven until he turned eighteen years old. Also living in the home were B.D.'s older sister, C.D., and younger brother, S.D.

B.D. testified about an event that occurred in or about 1994 when he was fourteen years old. He explained how, in attempting to show B.D. how to put on a condom -- because his mother was too embarrassed to explain -- defendant masturbated B.D., performed oral sex on him, and then compelled B.D. to reciprocate. B.D. testified to additional similar circumstances on later occasions. He also testified that defendant took nude photographs of him.

According to B.D., the sexual abuse stopped in 1997, when he was seventeen. He continued to live in the home with defendant, his mother, and his siblings until, after a disagreement approximately one year later, defendant told him to move out. B.D. enlisted in the military but continued to have contact with defendant. B.D. also moved back into the home with defendant and his mother for several months following his discharge from the military.

In light of B.D.'s delay in reporting the allegations of abuse to law enforcement authorities until June 2005, the assistant prosecutor elicited testimony from B.D. as to when he first confided in others as to the alleged sexual abuse. B.D. testified that in 1999 he told his late sister, C.D.,2 and in either 1999 or 2000, he told his girlfriend about the abuse.

When cross-examined about the veracity of the charges, B.D. acknowledged he never told the police investigator in 2005 that he had confided in C.D. about the alleged sexual abuse. Defense counsel also demonstrated through cross-examination that B.D. did not report his allegations to law enforcement authorities for many years despite the fact that his younger brother, S.D., remained in defendant's home and despite the fact that a young nephew -- the late C.D.'s son -- also resided there periodically starting in 2001. Instead, it was not until 2005 that B.D. advised police about the abuse.

In further challenging B.D.'s credibility, defense counsel asked B.D. whether it was true that "the first thing you told [the police investigator] was not that you were molested by [defendant], but that your sister was molested by [defendant]"; B.D. agreed that was true. When B.D. asserted that he complained to the investigator about "both of us" -- meaning he and C.D. -- the following cross-examination occurred:

Q. . . . The interview [with the police investigator] starts out [with your allegation that] it's your sister that's molested by [defendant], correct?

A. I believe so.

Q. And then the interview changes, it goes from your sister being molested to -- yeah, I was molested, too, correct?

A. Well, that's not how it was put, but yes.

Q. Well, if I showed you your statement and told you that the first 10 pages of your statement you don't say anything about you being molested, that it's your sister being molested, would that surprise you?

A. No, it wouldn't.

Q. So it's safe to say the first thing when you go to the Prosecutor's Office, when you speak with [the investigator], you tell them it's my sister that was molested, correct?

A. Correct.

Q. And then it evolves into I'm the one who was molested?

A. Correct.

Q. So at first at least when you came to the Prosecutor's Office the information that you were bringing them was about your sister, correct?

A. Yes.

Q. And that's what you told them, my sister was molested by [defendant]?

A. Correct.

Q. [By] [t]hat time your sister was dead, correct?

A. Yes, she was.

Q. And [the] Prosecutor's Office couldn't do anything about that, correct?

A. Correct.

Q. So that's when you went into by the way, I was molested, too?

A. But that's not the reason why. The reason is it's the truth.

In response, defendant testified at trial, explaining, among other things, that his relationship with B.D. was difficult but insisting there was no abuse, sexual or otherwise. Defendant's wife also testified that defendant had a conflicted relationship with B.D., generated by B.D.'s alcohol and marijuana use, but denied B.D.'s claims, including the occurrence of the conversation about condom usage that B.D. said preceded the first alleged act of sexual abuse. S.D. testified that he never witnessed any form of abuse by defendant against B.D. and that B.D. never mentioned he had been sexually abused. And C.D.'s husband testified that his son resided at times with defendant after C.D.'s death and neither he nor his son had any concerns.


The record reveals that from the outset the State had a keen interest in utilizing the photographs taken by defendant of both A.D. and C.D. Because the use of photographs of A.D. during the first trial of the offenses relating to B.D. led to our reversal of defendant's prior conviction, at earlier phases of the second trial the trial judge correctly rebuffed the State's efforts to use those photographs. Barred from using the photographs of A.D., the State attempted to utilize the photographs of C.D.

In one instance during B.D.'s testimony, the judge heard lengthy argument out of the presence of the jury, during which the prosecutor urged the right to use the photographs of C.D. to rebut the defense's attack on the credibility of B.D.'s testimony that defendant took nude photographs of him. And, at another stage of B.D.'s examination, the State urged the use of the photographs of C.D. as a response to defense counsel's suggestion, through cross-examination, that B.D.'s statements to the police investigator regarding defendant's abuse of C.D. was false. The judge examined the photographs of C.D. and made the following observations:

THE COURT: . . . I have looked at those five or six photographs and they fall far short of any clear and convincing proof that there was a sexual, you know, assault on [C.D.].

[THE ASSISTANT PROSECUTOR]: Well, they cer-tainly show that he was engaging in child pornography[3] with her, Judge, when some of them are topless.

THE COURT: I don't agree with you.

[THE ASSISTANT PROSECUTOR]: These are very similar to the pictures that he took of [A.D.].

THE COURT: That is not true.

[THE ASSISTANT PROSECUTOR]: He took photos like that of [A.D.].

THE COURT: I've made a ruling [as to] why [the photographs of A.D.] fell under the definition of pornographic and these pictures [of C.D.] do not fall into that category. There are two that are arguable -- okay? -- but they surely don't demon-strate a sexual assault, and others are actually inconsistent with what you offer them for and those are the ones where she is smiling and, you know, in the arms of her stepfather.

. . . .

. . . And you can, if you wish to, draw the inference that she may have been nude when . . . those two photographs were taken, but that's not proven by clear and convinc-ing evidence, and we don't know much about the photographs, frankly, unless someone who was present is willing to testify about them, so there's a great difference. And the most important thing is that we're talk-ing about another matter. We're not talking about this matter. So in order for those photographs to get admitted into this matter they must prove some relevant fact by clear and convincing evidence and their probative value must outweigh any prejudicial impact and you really haven't made that showing, so I'm not going to allow the photographs to be admitted into evidence. And a few of those photographs, frankly, are inconsistent with your position entirely because they show a smiling [C.D.] with her stepfather. So, you know, the photos at the very best will cause speculation, at the very worst they may be prejudicial, but I think we need to stick with this case.[4]

Following this, the assistant prosecutor sought to recall B.D.'s girlfriend, so she might be asked to further amplify the reasons for her fear of defendant.5 It was represented that, if recalled, B.D.'s girlfriend would testify that on one occasion she saw defendant inappropriately touch C.D.'s leg. The judge prohibited testimony about this alleged inappropriate touching and again reiterated the photographs of C.D. could not be used because "we're not here to address whether [C.D.] was abused, but surely there's no clear and convincing evidence of that even if it were true and, therefore, what you're really offering is not very probative at all in terms of the real question here before this [c]ourt . . . ."


It was not until defendant testified that the issue again arose. Toward the conclusion of his direct examination, defendant asserted he had a good parental relationship with C.D. and never touched her "in a sexual way." When direct examination was concluded a few moments later, the assistant prosecutor sought the right to use the photographs of C.D. "to impeach [defendant's] credibility that he had this great relationship with [C.D.], that it was father/daughter like and that . . . there was never a sexual relationship with [C.D.]."

Defense counsel argued the so-called topless photographs6 could not reasonably lead to an inference that defendant sexually abused C.D., but the judge concluded that by testifying he did not sexually abuse C.D., defendant opened the door to the use of the photographs to impeach his credibility:

THE COURT: . . . I believe that the State can argue that those photographs can lead to the inference that there was some type of a sexual relationship or dimension to that relationship based upon what apparently are nude photos. . . .

. . . .

The bottom line is [defense counsel] injected on two separate occasions after knowing [from earlier rulings] that I was . . . inclined not to go there and now I think that there is an issue of [defen-dant's] credibility, so I'm going to allow the photographs.

. . . .

I didn't think they were admissible [on the earlier occasion]. Now I think they're admissible for the limited purpose of addressing [defendant's] credibility.

The prosecutor then cross-examined defendant regarding the photographs. He acknowledged he took the photographs and testified his wife helped pose C.D. Defendant's wife was recalled to corroborate this; she added that C.D. was not nude at the time and was between eighteen and nineteen years old when the photographs were taken.


In this appeal, defendant argues that the use of the C.D. photographs violated N.J.R.E. 404(b) and the Cofield test.7The State concedes N.J.R.E. 404(b) has no application here, acknowledging the photographs "may reflect distasteful . . . [or] unseemly behavior" and may reflect "activity that most fathers (or even step-fathers) would not pursue, but the photographs do not reflect criminally or civilly wrong behavior." The State argues instead that the photographs were rendered admissible by N.J.R.E.405(b), which permits "evidence of specific instances of conduct" when "character or a trait of character of a person is an essential element of a charge, claim, or defense." The State asserts that defendant laid the groundwork for the use of the photographs pursuant to N.J.R.E. 405(b). In support of this new contention, the State argues that defendant attempted to demonstrate he was a good parent in responding to the claim that he sexually abused B.D. and that, in responding to evidence in support of this alleged "good parent trait," the State was entitled to show the contrary. Stated another way, although the State never urged N.J.R.E. 405(b) at trial as a basis for the admission of the photographs, the State now argues that photographs of C.D. posed in questionable taste -- concededly insufficient to support admission pursuant to N.J.R.E. 404(b) -- were admissible to defeat defendant's contention that he was a good parent.

Any way the argument may be restated demonstrates how attenuated these photographs were from the proofs relevant to the charged offenses. We agree with the State that N.J.R.E. 404(b) did not authorize admission of the photographs, and we reject the State's argument that N.J.R.E. 405(b) may support their admission because the so-called "good parent trait" is not an "essential element" of the charges the jury was required to decide. See State v. Baluch, 341 N.J. Super. 141, 194 (App. Div.),certif. denied, 170 N.J. 89 (2001); State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955).

The judge's view of the matter was closer to the mark. He repeatedly, and correctly, rejected admission of the photographs for any reason and only ultimately authorized their use to impeach defendant's credibility when defendant testified he had never sexually abused C.D. The judge was not mistaken when he determined that defendant opened the door to an attack on his credibility on that point but we conclude that the use of the photographs remained improper because their limited probative value on that point was greatly overridden by the photograph's potential for prejudice.

The judge later explained his application of N.J.R.E. 403 in determining the admissibility of the photographs in the following way:

I'm satisfied that having raised on two separate occasions the relationship between [C.D.] and her stepfather, the defendant, and trying to impeach [B.D.'s] credibility through that approach that the photographs have some probative value as to the rela-tionship and, frankly, I don't find them to be all that prejudicial in light of the cir-cumstances under which they're offered and the testimony that relates to them. . . .

We understand from this explanation that the judge permitted the use of this evidence for another reason. That is, in permitting the use of this evidence, the judge appears to have relied on the fact that defendant had challenged B.D.'s credibility by suggesting B.D. falsified his claim to police that defendant sexually abused C.D. and, therefore, could be understood as having also falsified his charge that defendant sexually abused him. By revealing the photographs to the jury, the State could then argue -- as we understand the judge's decision -- that B.D. was truthful because an inference could be drawn from the photographs that defendant sexually abused C.D. and, therefore, B.D. was truthful when he told that to the police investigator. And, if the jury drew that conclusion, then it might also conclude that B.D. was truthful when he later asserted that defendant sexually abused him.

This explanation suggests a convoluted and very slim nexus between the photographs and what the State was attempting to prove. Although trial judges have considerable discretion when engaging in this balancing process, State v. Nelson, 173 N.J. 417, 470 (2002), we are not convinced that the application of N.J.R.E. 403 properly leads to the conclusion that the limited relevance of this evidence substantially outweighed the risk of undue prejudice. This volatile evidence had the potential of not only prejudicing defendant but -- because it bore little relevance to the question of whether defendant sexually abused B.D. -- this evidence had the capacity to "mislead[] the jury." Ibid. See, e.g., State v. Marshall, 123 N.J. 1, 105 (1991),cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993); State v. Coruzzi,189 N.J. Super. 273, 304-08 (App. Div.),certif. denied, 94 N.J. 531 (1983).

This potential for prejudice was exponentially increased when the judge failed to instruct the jury about the questionable evidence's use. Without guidance, the jury was free to speculate about the photographs and defendant's relationship to C.D. -- a relationship having no particular relevance to the charged offenses -- when the issues for the jury concerned certain alleged interactions between defendant and B.D.

The judge's ultimate determination to permit the use of the photographs also conflicted with his earlier sound rulings. When the State previously attempted to gain admission of the photographs, the judge recognized their slim probative value was substantially outweighed by what the Court in State v. G.S., 145 N.J. 460, 468 (1996), referred to as the evidence's "prepotency of prejudice." Even though defendant did indeed open the door to a challenge to his credibility regarding his relationship with C.D. and even though defendant's credibility was a material issue, the nexus between the photographs and defendant's credibility that the State sought to demonstrate through their admission -- that defendant falsely asserted he never sexually abused C.D. or falsely asserted he had a sound parental relationship with C.D. -- is so thinly suggested by this evidence that the photographs' prejudicial effect greatly outweighed their use. In short, by admitting the photographs, the judge allowed the jury to speculate and to draw a conclusion that a man who takes photographs of scantily-clad, young adult females likely sexually abuses the subjects of his photographs. We conclude that a proper application of N.J.R.E. 403 required the exclusion of the photographs.


Even if we might assume the judge did not abuse his discretion in admitting the photographs, the nature of that evidence compelled the need for clear and specific jury instructions. Although it is true that defendant did not seek instructions about the photographs,8 the potential for improper jury speculation as to their significance was far too great to leave it to the jurors to sort out on their own. The Supreme Court has held that in such circumstances, where the trial judge has concluded that application of the evidence rules permits admission of other-crimes evidence, the judge "must specifically instruct the jury about that evidence's limited relevance." G.S., supra, 145 N.J. at 469. Here, as the State has rightfully acknowledged, the photographs were not evidence of other crimes, but as we must also conclude, those photographs carried the same potential prejudice carried by other-crimes evidence without the same level of relevancy -- all the more reason the judge was required to instruct the jury about what it could and could not do with that evidence.

To summarize, we conclude that the photographs of C.D. had such an attenuated nexus to the charged offenses that an appropriate comparison of their relevance with their potential for prejudice and for misleading the jury warranted exclusion of the photographs. That error was further exacerbated by the judge's failure to instruct the jury as to the photographs' limited use, leaving the jury to speculate about their weight and application. Considering that the evidence regarding the charged offenses consisted mainly of the testimony of B.D. and defendant, the potentially incendiary nature of the photographs could have meant all the difference in this matter. We conclude that the State's use of the photographs deprived defendant of a fair trial.

Reversed and remanded for a new trial.

1Defendant failed to demonstrate that B.D.'s discharge from the military was based on conduct falling within the parameters of N.J.R.E. 609. We rejected the same argument in defendant's first appeal.

2C.D. was murdered in 2001.

3The State acknowledges in its appeal brief that C.D. was over the age of eighteen when the photographs were taken.

4Although not included in the appendices, we have obtained copies of the photographs from counsel and find no cause to disagree or contradict the trial judge's accurate assessment of what they depict.

5For fresh complaint purposes, B.D.'s girlfriend was permitted to testify about B.D.'s statements to her on an earlier occasion that he was sexually abused by defendant. To explain why she did not report what B.D. had told her, B.D.'s girlfriend explained she was afraid of defendant because "he was controlling, he was a cop and [she] didn't think anybody would believe [her]." The assistant prosecutor claimed later at trial that the scope of this answer was limited because of concerns that the witness might open the door to an impermissible area, i.e., what the witness claimed to know about defendant's alleged abuse of C.D.

6Other conflicting evidence was later adduced as to whether C.D. was topless when she was photographed at that time. Even if it was assumed C.D. was topless during the photo session, the photographs do not depict her topless.

7State v. Cofield, 127 N.J. 328 (1992).

8Although defendant did not make a specific request or object when no instruction was given, we conclude that the absence of clear and specific instructions as to the limited use that the jury could make of the photographs was capable of producing an unjust result. R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007). It has been well established that errors in a jury charge in a criminal case on material issues are viewed as "poor candidates for rehabilitation under the harmless error philosophy," State v. Vick, 117 N.J. 288, 289 (1989), and are presumed to constitute reversible error,State v. Jordan, 147 N.J. 409, 422 (1997).

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