first citing Cestero, supra, 57 N.J. at 501-02; and then citing C.A., supra, 201 N.J. Super. at 33-34
How later courts described this case
- first citing Cestero, supra, 57 N.J. at 501-02; and then citing C.A., supra, 201 N.J. Super. at 33-34
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5232-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.A.S.,
Defendant-Appellant.
________________________________________________________________
Submitted February 14, 2017 – Decided July 6, 2017
Before Judges Koblitz, Rothstadt and
Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 11-11-1183.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jaime B. Herrera, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jeffrey P.
Mongiello, Deputy Attorney General, of
counsel and on the brief).
PER CURIAM
Defendant M.A.S.1 appeals from a judgment of conviction
entered by the Law Division after a jury convicted him of
committing two counts of second-degree of sexual assault upon
his sixteen-year-old niece, D.S. The court sentenced him to an
aggregate term of eight-years, subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2, Megan's Law restrictions, N.J.S.A.
2C:7-1 to -23, and parole supervision for life, N.J.S.A. 2C:43-
6.4. On appeal, defendant argues that his conviction should be
vacated because the trial court improperly permitted a Sexual
Assault Nurse Examiner (SANE) to testify to statements made by
D.S. during the nurse's examination of the young victim in which
D.S. identified defendant as her assailant and provided details
of her assault. We agree that portions of the nurse's testimony
should not have been admitted, but we affirm, finding the error
to be harmless.
In 2011, D.S. disclosed to a guidance counselor at school
that defendant had sexually assaulted her. The guidance
counselor contacted the police who investigated and arrested
defendant. On November 30, 2011, a grand jury returned an
indictment charging defendant with second-degree sexual assault
of a relative between the ages of sixteen and eighteen, N.J.S.A.
1
We use initials to preserve the confidentiality of the
victim. R. 1:38-3(c)(12).
2 A-5232-14T1
2C:14-2(c)(3)(a) (count one); second-degree sexual assault by
force or coercion without serious injury, N.J.S.A. 2C:14-2(c)(1)
(count two); and fourth-degree criminal sexual contact, N.J.S.A.
2C:14-3(b) (count three).
At defendant's ensuing trial, D.S., her sister, the
guidance counselor, and the SANE nurse testified on behalf of
the State. Defendant testified on his own behalf.
According to the testimony presented by the State, before
disclosing the assault to her guidance counselor, D.S. disclosed
defendant's conduct to others. At the time of the assault, D.S.
lived with her grandmother, older brother, and three younger
sisters, including her sister Da.S., who was two years younger
than her. Defendant, who was D.S.'s father's brother,
periodically lived in the home as well, at which time he slept
in the living room.
According to D.S., on February 10, 2011, defendant
assaulted her while her sisters and their grandmother were home.
D.S. stated that she went to sleep in her bedroom, where she
slept alone, and awoke around midnight to someone touching her.
During the course of the attack, D.S. was subject to digital
penetration and defendant's unsuccessful attempt to penetrate
her with his penis. While the attack was underway, D.S. began
"[s]haking in fear," at which point, defendant stopped, "told
3 A-5232-14T1
[her] not to tell anybody," and left the room. D.S. estimated
the incident lasted ten minutes.
At first, D.S. did not know who was attacking her because
she was laying on her side, facing a wall, although she assumed
it was defendant. She was able to confirm it was defendant when
he spoke to her just prior to leaving the room, at which point
she recognized his voice.
After defendant left, D.S. went to her sisters' room and
woke Da.S. At trial, Da.S. stated D.S. was visibly upset, and
D.S. "told [her] about what happened between her and [their]
uncle," how "he was inappropriately touching her." In response,
Da.S. called a different uncle and aunt to tell them what had
occurred. She also crawled out of her bedroom window and went
to her parents' house nearby, to inform them of defendant's
conduct. Although the grandmother was in the house, D.S. stated
she did not wake her regarding the incident because she thought
she would "take his side." D.S. ultimately wrote a note
explaining what happened, which Da.S. gave to their grandmother
the next morning.
The next day at school, D.S. confided in a friend regarding
the events of the previous night. The friend told her she
should speak to the guidance counselor, which she did. The
guidance counselor testified D.S. was "visibly upset, . . .
4 A-5232-14T1
withdrawn and . . . crying." D.S. eventually disclosed the
incident, and the guidance counselor contacted the police, who
then came to the school to speak with D.S. After speaking with
police, the guidance counselor drove D.S. to the police station,
where she was met by her grandmother. After giving a statement
to police, the grandmother drove D.S. to the hospital where D.S.
was examined by the SANE nurse.
At trial, the nurse explained the purpose of having SANE
nurses in the hospital is so "[e]very patient that . . . comes
in with sexual assault has the same opportunity to have
specialized victim-centered care." She stated that she explains
to her patients the purpose of the examination, takes an oral
history to determine how best to treat the patient, conducts a
"head-to-toe assessment [to] make sure the patient gets treated
properly," and then conducts a "detailed genital examination."
The nurse testified that her examination of D.S. revealed that
"an injury did take place inside the vagina within a recent
amount of time."
When the prosecutor began to question the nurse about the
oral history provided to her by D.S., defense counsel objected
5 A-5232-14T1
on hearsay grounds.2 The court allowed the testimony, relying
upon N.J.R.E. 803(c)(4): "Statements for purposes of medical
diagnosis or treatment." The nurse then testified as to D.S.'s
description of the incident, including D.S.'s identification of
defendant as her assailant, making sure that it was clear that
she was quoting D.S's statement to her. The nurse's recounting
of D.S's statement essentially mirrored D.S.'s testimony, except
that D.S. indicated to the nurse that defendant asked her if she
wanted him to "leave her alone." D.S. nodded her head yes,
according to the nurse, and defendant "kissed her thigh and told
her . . . not to tell anyone and left the room." Additionally,
the nurse testified that D.S. stated that earlier in the night,
prior to the incident, defendant asked her if she wanted
"something to help her sleep" and that her uncle "kept coming
down to her room . . . earlier in the evening." On cross-
examination, defense counsel asked if these details were
"medically relevant," to which the nurse responded, "[n]ot
necessarily."
2
It is not clear whether defense counsel even objected. He
stated, "Judge, I don't know. I think I might have to object."
And, when the prosecutor and judge identified the rule through
which the State sought the testimony's admission, defense
counsel said "okay." The judge allowed the testimony. For our
purposes, we assume an objection was interposed and not
withdrawn.
6 A-5232-14T1
During his closing, defense counsel focused on
inconsistencies in D.S.'s testimony and argued D.S. presented a
"spotty and frankly inconsistent story," and suffered a
"Pinocchio problem." Among the inconsistencies he referred to
was a statement made by D.S. to the SANE nurse about whether she
was subjected to any type of penetration. Counsel also
explained to the jury that the nurse did what she was supposed
to do by "accept[ing D.S's story] as presented." He also relied
upon the nurse's testimony about her attempt to examine D.S.
with a speculum that caused D.S. discomfort and pain and asked
the jurors to compare that fact with D.S.'s testimony that upon
penetration by defendant she did not feel any pain. Counsel
also attempted to create an issue as to the assailant's identity
by stating that D.S. did not see the perpetrator, but only
identified him by the sound of his voice, and noted defendant
testified that D.S.'s brother and cousin arrived home at 12:30
a.m., then stating, "I'm not saying the brother did anything.
I'm not saying the cousin did anything. I'm saying based on
what we know right now, we just don't know."
The prosecutor's closing focused on the nurse's testimony
only to the extent that D.S. made statements to her about
penetration and the evidence of injury to D.S.'s vagina. The
prosecutor explained to the jury that the nurse could not tell
7 A-5232-14T1
them what happened to D.S., only that the "injury that she
discovered . . . is consistent with what D.S. told her." The
prosecutor did not mention statements recounted by the nurse
that may have been extraneous to evaluation and treatment,
including D.S.'s statement about defendant being the
perpetrator. Defense counsel did not object to the prosecutor's
closing argument at trial.
On appeal, defendant argues:
THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN ALLOWING THE
SEXUAL ASSAULT NURSE EXAMINER TO
PRESENT DETAILED TESTIMONY
REGARDING THE ALLEGED ASSAULT,
WHICH WAS HEARSAY UNDER THE
MEDICAL EXCEPTION RULE, AND
IMPROPERLY IDENTIFIED THE ALLEGED
ASSAILANT. THE PREJUDICE TO
DEFENDANT WAS COMPOUNDED WHEN THE
PROSECUTOR USED THIS TESTIMONY IN
SUMMATION AS SUBSTANTIVE EVIDENCE
TO ENHANCE D.S.'S CREDIBILITY.
(PARTIALLY RAISED BELOW).
Defendant contends that since the nurse's examination was
for "evidence-gathering purposes" and "not for the purpose of
medical diagnosis or treatment," D.S.'s hearsay statements were
not admissible under N.J.R.E. 803(c)(4). He relies upon the
fact that the nurse was trained in the process of collecting and
maintaining evidence and during her "explanation of the
8 A-5232-14T1
examination of a patient, care and treatment were not
mentioned."
Defendant also avers that "even if this court were to
determine that [the nurse] examined D.S. for the purpose of
medical diagnosis or treatment, many of the statements by D.S.
that were repeated [by the nurse] were inadmissible, and
prejudiced defendant." Defendant asserts "[t]his testimony was
harmful to defendant due to the lack of other evidence at
trial," such as "witnesses to the incident."
"We begin by acknowledging our deferential standard for
reviewing a trial court's evidentiary rulings, which should be
upheld 'absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.'" State v. Perry, 225 N.J.
222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 147
(2001)). An abuse of discretion is "a clear error of judgment"
that is "so wide of the mark that a manifest denial of justice
resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting
Brown, supra, 170 N.J. at 147). However, appellate review of a
trial court's legal conclusions is plenary. State v. Handy, 206
N.J. 39, 45 (2011).
Here, the nurse's testimony regarding what D.S. told her
about the attack was hearsay. Hearsay is an out-of-court
statement "offered in evidence to prove the truth of the matter
9 A-5232-14T1
asserted." N.J.R.E. 801(c). An exception to the prohibition
against hearsay are "[s]tatements made in good faith for
purposes of medical diagnosis or treatment which describe
medical history" or the cause of the declarant's symptoms "to
the extent that the statements are reasonably pertinent to
diagnosis or treatment." N.J.R.E. 803(c)(4).
"It has long been the rule in New Jersey that the
declarations of a patient as to his condition, symptoms and
feelings made to his physician for the purpose of diagnosis and
treatment are admissible in evidence as an exception to the
hearsay rule." Cestero v. Ferrara, 57 N.J. 497, 501 (1971); see
also Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558,
586 (App. Div. 2014), aff'd as modified, 223 N.J. 245 (2015).
This hearsay exception is premised on the notion that "the
declarant is more interested in obtaining a diagnosis and
treatment culminating in a medical recovery than [she] is in
obtaining a favorable medical opinion culminating in a legal
recovery." Biunno, Current N.J. Rules of Evidence, comment on
N.J.R.E. 803(c)(4) (2017) (citing, In re Registrant C.A., 146
N.J. 71, 99 (1996)).
For the exception to apply, "the patient must have believed
that the statement would enable the doctor to treat," because
"[r]eliability is based on the declarant's belief that a doctor
10 A-5232-14T1
will properly treat him if the doctor is told the truth
concerning the ailment." State in the Interest of C.A., 201
N.J. Super. 28, 33-34 (App. Div. 1985). Because N.J.R.E.
803(c)(4) is based upon a presumed "treatment motive," a
statement by a declarant who "is unaware that his or her
statements will enable a physician to make a diagnosis and
administer treatment" lacks the requisite degree of
trustworthiness to qualify under this exception. R.S. v.
Knighton, 125 N.J. 79, 87-88 (1991). For that reason, hearsay
obtained during evidence gathering and medical consultations
conducted purely in preparation for litigation remains
inadmissible. C.A., supra, 201 N.J. Super. at 33.
Therefore, in order to be admissible, the patient's
statements must be "made in good faith for purposes of medical
diagnosis or treatment." State v. Pillar, 359 N.J. Super. 249,
289 (App. Div.) (quoting N.J.R.E. 803(c)(4)), certif. denied,
177 N.J. 572 (2003). They must also "describe medical history,
or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source
thereof to the extent that the statements are reasonably
pertinent to diagnosis or treatment." Ibid. D.S.'s statements
to the nurse identifying defendant or otherwise setting forth
the details of her assault that were "not relevant to [D.S.'s]
11 A-5232-14T1
. . . treatment" were not admissible. State v. McBride, 213
N.J. Super. 255, 273 (App. Div. 1986) (first citing Cestero,
supra, 57 N.J. at 501-02; and then citing C.A., supra, 201 N.J.
Super. at 33-34).
The trial court's error here, however, was harmless. An
error at trial will be considered reversible only if it is
"clearly capable of producing an unjust result." R. 2:10-2.
"The harmless error standard 'requires that there be some degree
of possibility that [the error] led to an unjust result. The
possibility must be real, one sufficient to raise a reasonable
doubt as to whether [it] led the jury to a verdict it otherwise
might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012)
(alterations in original) (quoting State v. R.B., 183 N.J. 308,
330 (2005)).
Applying that standard, we observe that prior to the nurse
testifying, D.S. testified about her identification of defendant
as her assailant, the details of her assault, and how she shared
that information with others before speaking to the nurse. The
other individuals included her sister and guidance counselor,
who also testified as to what D.S. told them before she spoke to
the nurse. Defendant has not established that the nurse's
repetition of the same information caused him any prejudice. To
the contrary, defense counsel relied on the nurse's testimony
12 A-5232-14T1
about what D.S. said to argue that D.S. gave several
inconsistent statements and thus was not worthy of belief.
Turning next to defendant's contention that he "was
deprived of a fair trial by the [State's] improper use of" the
nurse's testimony during summation, we note that defendant did
not object to the prosecutor's closing statement at trial.
Because there was no objection at trial, we review the issue for
plain error. R. 2:10-2. We find none. The prosecutor's
closing discussed the nurse's testimony only to the extent that
it was pertinent to the issue of whether or not there was injury
to the vagina indicative of penetration and whether D.S. gave
inconsistent statements, as rebuttal to the defense's summation.
Affirmed.
13 A-5232-14T1