STATE OF NEW JERSEY VS. J.P.D. (18-03-0389, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0217-19T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.P.D.,

Defendant-Respondent.

___________________________

Argued January 14, 2020 – Decided May 4, 2020

Before Judges Hoffman and Firko.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Bergen County,

Indictment No. 18-03-0389.

Ian C. Kennedy, Assistant Prosecutor, argued the cause

for appellant (Mark Musella, Bergen County

Prosecutor, attorney; William P. Miller, Assistant

Prosecutor, of counsel; Ian C. Kennedy, of counsel and

on the brief).

Tamra Dawn Katcher argued the cause for respondent

(Rem Katcher Law Group, attorneys; Joseph P. Rem, of

counsel; Tamra Dawn Katcher, of counsel and on the

brief).

PER CURIAM

By leave granted, the State appeals from an August 9, 2019 Law Division

order denying the State's motion for reconsideration to allow fresh complaint

testimony. For the reasons that follow, we affirm, in part, and vacate and

remand, in part.

I

On March 20, 2018, a Bergen County grand jury returned an indictment

against defendant,1 charging him with sexual assault, in violation of N.J.S.A.

2C:14-29(b), and endangering the welfare of a minor, in violation of N.J.S.A.

2C:24-4(a)(1). The indictment identified L.W. (Linda), born in April 2006, as

the victim and alleged the offense occurred "on or about January 17, 2017."

Before trial, the State filed a motion to admit statements made by Linda

to her parents, pursuant to the fresh complaint doctrine. 2 The motion judge heard

the testimony of Linda's father, E.W. (Edward) on May 2, 2019, approximately

1

We utilize initials and pseudonyms when referring to defendant, the

complaining witness and her family members, pursuant to N.J.S.A. 2A:82-46

and Rule 1:38-3(c)(9).

2

The fresh complaint doctrine allows "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." State v.

R.K., 220 N.J. 444, 455 (2015).

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eighteen months after Linda made the subject disclosure. Edward testified that

in November 2017, after viewing news accounts of sexual harassment

allegations against Matt Lauer, he and his wife, C.W. (Caroline), decided to

generally discuss sexual harassment with their two daughters, Linda and K.W.

(Karen), her older sister by two years. The parents informed them that if they

ever experienced any sexual harassment, they could freely discuss it with them.

According to Edward, in response to the conversation, Linda disclosed

that her uncle (defendant) "touched her inappropriately . . . and his hand went

down her . . . garment," at a family gathering eleven months earlier. At the time

of the incident, Linda was ten years old.

Shocked by the revelation, Edward and Caroline waited several days

before initiating a second conversation. They questioned Linda alone regarding

the factual details of the alleged sexual abuse; at that time, Linda said she

was sitting on [defendant's] lap and that he had reached

in the front of her dress[.] . . . [W]e . . . asked if . . . it

was over or under her dress and she said that it was

under and that he had touched[,] touched her vagina.

She then said that he had asked her if . . . she wanted

him to stop[,] to which she replied yes . . . she then told

us that [defendant] had told her quietly not to tell

anybody [because] he could get into a lot of trouble for

this.

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After this second conversation, Edward discussed the matter with a family

member and then contacted the police on December 11, 2017.

On June 12, 2019, the motion judge issued a written decision denying the

State's motion to admit the fresh complaint evidence. The judge found Linda

disclosed the incident to a person she would naturally turn to and she complained

within a reasonable time, satisfying the first two elements under State v. Hill,

121 N.J. 150, 163 (1990).3 However, the judge found the State failed to satisfy

the third element – that Linda's disclosure was spontaneous and voluntary. The

judge reached this conclusion because Edward and his wife initiated the

conversation with Linda and then, three days later, asked Linda targeted

questions that resulted in her specific answers.

Significantly, the judge did not analyze the case under State v. Bethune,

121 N.J. 137 (1990).4 Additionally, the judge evaluated the matter as if Linda

3

In Hill, our Supreme Court established a three-part test that out-of-court

statements must satisfy to qualify as admissible fresh-complaint testimony –

specifically, the statements by the victim must be: (1) "to someone she would

ordinarily turn to for support"; (2) "made within a reasonable time after the

alleged assault"; and (3) "spontaneous and voluntary." 121 N.J. at 163.

4

In Bethune, the Court addressed the application of the fresh complaint

exception in child sexual abuse cases. 121 N.J. at 139. At issue was whether

statements regarding sexual abuse first elicited from a child during questioning

could be introduced as evidence of a fresh complaint. Ibid. The Court

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and her parents had one single conversation, instead of two separate and distinct

conversations.

The State then filed a motion for reconsideration. After hearing oral

argument, the judge denied reconsideration. According to the State, it expected

the judge would refrain from deciding its fresh complaint motion until he issued

a decision on defendant's motion to compel the psychological records of

Caroline; however, the State acknowledged that Caroline would testify to the

same information as Edward.

concluded that courts should apply fresh complaint guidelines flexibly to

children considering the reluctance of children to report a sexual assault and

their limited understanding of what was done to them. Id. at 143-44. The Court

then set forth factors to consider when determining the admissibility of fresh

complaint testimony in relation to children:

In each case the trial court must examine the degree of

coercion involved in the questioning of the child and

determine whether the child's complaint was

spontaneous or directly in response to the interrogation.

Among the factors the court should consider in arriving

at its determination are the age of the child, the child's

relationship with the interviewer, the circumstances

under which the interrogation takes place, whether the

child initiated the discussion, the type of questions

asked, whether they were leading, and their specificity

regarding the alleged abuser and the acts alleged.

[Id. at 145.]

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On reconsideration, the motion judge acknowledged he "did not

appreciate that the statements made by [Linda] during the first family conference

were the subject of the State's motion." As a result, his initial decision analyzed

the testimony as if only one conversation occurred, instead of two separate

conversations. The judge then applied the Bethune factors to the first

conversation and ruled it inadmissible, concluding "[Linda's] first statement was

not spontaneous but may have been coercive (this court does not know exactly

what was asked)." Analyzing the Bethune factors, the judge found:

The discussion took place in the family home at the

dining room table. The [parents] brought up the topic

of sexual harassment. The exact words used by the

[parents] during the family discussion were not

disclosed to this court. This court cannot determine

whether the questions were leading. [Linda] introduced

the defendant's name in the discussion. The court does

not know if any of the questions included mention the

defendant or the alleged abusive act.

The judge then analyzed the second conversation under the Bethune

factors and again found Linda's later statements were not spontaneous and were

coercive. The judge emphasized that Linda's parents "pressed [Linda] for details

she did not want to divulge. . . . [S]ome of the questions were somewhat

specific. At least one question was extremely specific."

Thereafter, we granted the State leave to file this interlocutory appeal.

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II

The governing legal standards are clear. The admissibility of fresh

complaint evidence is "committed to the sound discretion of the trial judge."

State v. W.B., 205 N.J. 588, 616 (2011). Accordingly, as with other evidentiary

rulings, we should reverse "only where 'a clear error of judgment' is established."

State v. Loftin, 146 N.J. 295, 357 (1996) (quoting State v. Koedatich, 112 N.J.

225, 313 (1988)).

Fresh complaint evidence has a narrow purpose: it is admissible "to prove

only that the alleged victim complained [at a particular time], not to corroborate

the victim's allegations concerning the crime." State v. R.E.B., 385 N.J. Super.

72, 89 (App. Div. 2006) (quoting Bethune, 121 N.J. at 146). "It allows the State

to negate the inference that the victim was not sexually assaulted because of her

silence. Only the fact of the complaint, not the details, is admissible." Hill, 121

N.J. 150 at 163; see also State v. Tirone, 64 N.J. 222, 227 (1974) (stating the

purpose of fresh complaint testimony is "to meet in advance a charge of recent

fabrication.").

The Court in Bethune determined "that general, non-coercive questions

do not rob a complaint of its admissibility under the fresh complaint

[exception]." 121 N.J. at 144. See Hill, 121 N.J. at 167 ("[S]tatements made

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after non-coercive questions have the necessary spontaneity and voluntariness

to qualify as [a] fresh complaint" but "statements that are procured by pointed,

inquisitive, coercive interrogation lack the degree of voluntariness necessary to

qualify under the [fresh complaint exception].").

Specifically, in Bethune, the court reasoned that complaints by children

elicited by questions such as "what's wrong?", "what happened?", and "did he

do something to you?" were admissible because they were "general, non-

coercive questions." Id. at 144-45 (citations omitted). In determining the

difference between "questioning that merely precedes a complaint of sexual

abuse and coercive questioning[,]" the trial judge "must examine the degree of

coercion involved in the questioning of the child and determine whether the

child's complaint was spontaneous or directly in response to the interrogation."

Id. at 145.

For example, in State v. J.S. 222 N.J. Super. 247, 253 (App Div. 1988),

we held that a mother's testimony regarding her daughter's sexual abuse was

inadmissible under the fresh complaint exception. In that case, the child's

mother testified that, when approached about the subject, the child cried and

refused to talk about it. Ibid. In order to solicit answers, the mother specifically

asked the child if the defendant had touched or penetrated different parts of her

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body, to which the child responded with exclusively "yes" or "no" answers. Ibid.

This court noted:

While the methods employed by Mrs. M. to find out

what had happened to her daughter were certainly

understandable, our concern is whether the child's out-

of-court responses satisfy the exacting standards for

admissibility under a rule of evidence which permits

such testimony only to demonstrate that the victim

made a "complaint" . . . . In our view, to qualify as a

complaint the victim's statement must at least be self-

motivated and not extracted by interrogation.

[Ibid. (emphasis added).]

The State argues that this case is analogous to State v. L.P., 352 N.J.

Super. 369 (App. Div. 2002). In that case, the victim and her friends played a

game called "Skeleton in the Closet" where each of the participants disclosed an

"embarrassing secret." Id. at 382. During the game, the victim divulged to her

friend that she had been sexually assaulted by the defendant. Ibid. The victim's

friend then told the foster parent that something "bad" had happened to the

victim. The foster parent asked the victim, "you have to tell me something?"

The victim responded "yes," and then recounted the incident of sexual abuse,

after the foster parent asked, "What happened?" Ibid. We found that the

question could "perhaps be characterized as [an] interrogation," but "was not in

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any sense suggestive or coercive" and therefore found the victim's statements

spontaneous and voluntary. Ibid. (internal quotations omitted).

Additionally, the State relies on State v. Ramos, 203 N.J. Super. 197 (Law

Div. 1985). In Ramos, the victim brought home material prepared by her school

to assist parents in speaking to their children about sexual matters. Id. at 200.

The parents discussed the documents and the victim asked if the defendant was

permitted to touch her privates and then indicated that the defendant had touched

her private parts multiple times. Ibid. The mother told the victim that she would

talk to the defendant's wife about the matter because she did not fully believe

her. Id. at 201. The court admitted the statements as a fresh complaint. Id. at

203.

On reconsideration, the motion judge addressed the first conversation, and

found that Linda's parents initiated the conversation "about the allegations made

against Mr. Lauer," but noted that Edward "did not recall exactly what [was]

said to their daughters." Because Edward could not recall the exact words used,

the judge concluded that statements made by Linda during the first conversation

"were not spontaneous and may have been coercive."

While the motion judge recited the Bethune factors in his reconsideration

decision, we note he only analyzed one factor, the type of questions asked, and

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emphasized that Edward could not recall "[t]he exact words used . . . during the

family discussion." Edward's testimony regarding the first conversation reflects

that only two questions were asked of Linda at that time: 1) after she said there

was an occurrence with her uncle, she was asked "what had happened?" Linda

replied that he touched her inappropriately and his hand went down her garment:

and 2) she was asked "if she needed some time?" In response, she said she did.

Significantly, the judge "found [Edward] to be credible and believable,"

and further noted that his "inability to remember the exact questions asked is

understandable (he is not a professional dealing with someone else's allegedly

abused child, he is a father dealing with the alleged abuse of his own daughter)

. . . ." In addition, the judge did not cite any authority for imposing upon the

State the burden to prove the "exact words" or "exact questions" leading to a

fresh complaint. Nor do we view Bethune as imposing such a burden.

We further note that Edward testified that he and his wife sought to

educate their children about sexual harassment, not sexual abuse. They told

their daughters they were available to discuss any issues relating to sexual

harassment "judgment free." They initiated this discussion because of media

accounts of sexual harassment involving a high-profile individual. The record

reflects no evidence that Linda's parents had any preconceived notions of sexual

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abuse entering the conversation. According to Edward, "My wife and I were

both in shock[,]" after Linda said there was an occurrence with her uncle, "that

he had touched her." They asked, "What happened?" At that point, Linda

disclosed the improper touching.

Like in Bethune and L.P., we conclude the limited questioning during the

first conversation constituted general, non-coercive questioning because Linda's

parents did not "press the topic" or ask anything specific. Without knowledge

of the incident, they advised Linda and her sister that they could confide in them

if anything regarding sexual harassment ever occurred. Linda's response

indicating that her uncle touched her inappropriately was in response to a

general discussion of sexual harassment. Therefore, the circumstances did not

originate from any "pointed" questioning that would negate the voluntariness

requirement under the third element of Hill. While Linda did not initiate the

conversation, Bethune acknowledges the natural reluctance of children to

initiate any conversation regarding sexual abuse, therefore making it necessary

"to be flexible" in applying the exception. Bethune, 121 N.J. at 144.

Here, the circumstances surrounding the conversation were very general

and factually limited; therefore, while the conversation can be considered an

interrogation like in L.P., the questions asked cannot be considered suggestive

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or coercive and were not targeted like the questions asked in J.S. In addition, as

noted, the parents had no prior knowledge of sexual abuse by defendant. Indeed,

Linda inserted defendant into the conversation, making her statements self-

motivated. Therefore, Linda responding in general that defendant improperly

touched her does not negate the spontaneous requirement. We conclude the

motion judge mistakenly exercised his discretion when he ruled that statements

made by Linda during the first conversation with her parents was not

spontaneous but may have been coercive. Based on this clear error of judgment,

we vacate the judge's ruling as to this first conversation; on remand, the trial

judge shall enter an order permitting the State to introduce statements made by

Linda to her parents during their first conversation, pursuant to the fresh

complaint doctrine.

Turning to the second statement, the motion judge found it was not

spontaneous and was coercive. We agree. Linda's parents initiated the

conversation with the specific intent to gain an understanding of the facts

surrounding the sexual assault. Like J.S., where the victim was passive and the

mother asked targeted questions, here, Linda was reluctant to answer so her

parents pressed her on specific details. The State's arguments to the contrary

clearly lack merit. Based on the timing and circumstances of the second

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discussion, including the parent's goals in initiating it, we agree the conversation

was coercive. The record clearly reflects the second statement was neither

spontaneous nor voluntary. We therefore affirm the motion judge's ruling that

statements made by Linda to her parents during their second conversation are

not admissible under the fresh complaint exception.

In conclusion, we affirm that portion of the order under review that ruled

the State could not admit Linda's second statement to her parents as fresh

complaint evidence, and we vacate that portion of the order that ruled the State

could not admit Linda's first statement to her parents as fresh complaint

evidence. On remand, the Law Division shall enter a confirming order regarding

the admissibility of Linda's statements to her parents made during their first

conversation.

Affirmed in part, and vacated and remanded, in part. We do not retain

jurisdiction.

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