State v. C.W.H.

465 N.J.Super. 574

244 A.3d 791

STATE of New Jersey, Plaintiff-Respondent,

v.C.W.H.,¹ Defendant-Respondent.

DOCKET NO. A-5254-17T1

Superior Court of New Jersey, Appellate Division.

Argued November 9, 2020

Decided January 15, 2021

Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit and Rochelle Watson, Deputy Public Defender II, of counsel and on the briefs).

Andre R. Araujo, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Andre R. Araujo, of counsel and on the brief).

Before Judges Sabatino, Currier and Gooden Brown.

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Following a jury trial, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), stemming from the sexual abuse of his daughter, S.H., from the time she was five to the time she was twelve years old. The abuse consisted of an act of fellatio and weekly acts of sexual contact. S.H. reported the abuse to police in 2015, when she was thirty-one years old. During the ensuing protracted police interrogation, defendant admitted "lay[ing] on top of [S.H.]" twice at nighttime while they were both wearing pajamas "to give her extra affection." After repeatedly denying the allegation, defendant also ultimately admitted to an act of penetration but did not "remember the incident," and was relying on the fact that S.H. had said "it happened."

Five years earlier, in 2010, for the first time, S.H. had disclosed the abuse to her husband and confronted defendant by email. The following year, in 2011, S.H. disclosed the abuse to her brother and his wife, V.H., who testified at trial that the disclosure seemed credible to her because of defendant's "weird vibes" and her "intuition." During the trial, defendant did not testify but produced eight character witnesses who testified about his impeccable reputation in the community. Following the verdict, defendant was sentenced to an aggregate term of twenty-four years' imprisonment, community supervision for life, N.J.S.A. 2C:43-6.4,² and ordered to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.

On appeal, defendant raises the following points for our consideration:

POINT I

THE INTERROGATING DETECTIVE USURPED THE JURY'S ROLE AS ARBITER OF CREDIBILITY AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY ASSERTING DURING THE INTERROGATION THAT DEFENDANT'S DENIAL OF THE ALLEGATIONS WERE LIES AND BY OFFERING HIS OPINION AS TO DEFENDANT'S TRUTHFULNESS AT TRIAL. (PARTIALLY RAISED BELOW).

POINT II

[V.H.'S] INADMISSIBLE HEARSAY TESTIMONY THAT THE VICTIM

DISCLOSED THE ALLEGATION OF ABUSE SIXTEEN YEARS AFTER THE FACT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL; THE PREJUDICE WAS EXACERBATED BY [V.H.'S] IMPROPER COMMENT THAT THE ALLEGATION WAS TRUE BASED ON HER "INTUITION," HAVING SPENT TIME WITH DEFENDANT. (NOT RAISED BELOW).

POINT III

THE PROSECUTOR'S CROSS-EXAMINATION OF EACH OF DEFENDANT'S CHARACTER WITNESSES WITH SPECIFIC INSTANCES OF CONDUCT VIOLATED THE RULES OF EVIDENCE AND PRESUPPOSED HIS

GUILT OF THE UNDERLYING CHARGES, THEREBY PREJUDICING DEFENDANT'S RIGHT TO [A] FAIR TRIAL. (NOT RAISED BELOW).

Because we agree that defendant was deprived of a fair trial in multiple ways, we reverse.

I.

We glean the following facts from the trial record. S.H., born October 1983, lived with defendant, her mother, and her younger brother in Pittsgrove Township until 1992, when the family moved to Vineland. S.H. testified that in 1988, when she was five years old, defendant made her perform fellatio on him while she and defendant were home alone in defendant's bedroom in the Pittsgrove home. According to S.H., during the incident, defendant "exposed his penis[,] ... grabbed [a] condom off ... the night stand[,] ... put [the] condom on," and "told [S.H.] to give [his penis] a kiss." S.H. testified that she "put [defendant's penis] in [her] mouth ... [a]s far as it could go[,] ... [went] up and down" as defendant instructed, and, after "a couple of moments," defendant "grunted ... and was done." Afterwards, S.H. left the bedroom.

S.H. testified that over the next several years, acts of sexual abuse occurred at the Pittsgrove home about "[o]nce a week, if not more." During the incidents, while S.H. and defendant were home alone lying "on the couch ... watching [television]" in "the spoon[ ] position," defendant "would dry hump [her]" by "rub[bing] his [erect] penis against [her] backside" while saying "do you like that," or "how does that feel." After the family moved to Vineland, defendant continued the sexual abuse, though the location moved from the couch to S.H.'s bedroom. During those incidents, defendant would "roll [S.H.] over" onto "[her] back" and "climb into bed ... on top of [her]." Defendant would then "rub his penis against [S.H.'s] vagina," asking "do you like that," or "how does that feel," until he "ejaculate[ed] inside of his underwear." ³

On one occasion, S.H. refused to move when defendant tried to roll her over, so defendant "rub[bed] his penis against [her] backside" instead.⁴ In another incident, when S.H. was approximately ten years old, defendant French kissed her by "[sticking] his tongue in [her] mouth[ ] and [telling her] to move [her] tongue around."

S.H. testified that the Vineland incidents usually occurred between 6:00 a.m. and 6:30 a.m. before defendant left for work.

According to S.H., although her mother and brother were normally present in the home during the incidents, neither was aware of the abuse. While the abuse was ongoing, S.H. never told anyone because defendant "told [her] not to" and "[she] was afraid that [she] would lose [her] family and would [not] be believed" if she revealed the abuse to her family or anyone else. S.H. added that because the abuse made her feel "[d]irty, ashamed, [and] scared," she "did [not] say anything to anybody" because "[i]t just [made her] feel like [she] did something wrong." Despite the abuse, which continued until "a little before [S.H.'s] thirteenth birthday," S.H. stated that the family appeared "[f]rom the outside" to be "very normal [looking]."

S.H. "graduated [from] high school in 2002," "married [in] ... 2004," and "joined the military in 2005." As an adult, she maintained a relationship with defendant until approximately 2010. At that time, S.H. began having marital and "personal problems." As a result, she disclosed the abuse to her husband and, for "[c]losure," confronted defendant in an email. S.H. testified that although defendant responded by email,⁵ and admitted that he was only "giving [her] extra love," he did not apologize. Consequently, S.H. stopped talking to her parents and went "on with life." The following year, 2011, S.H. was "medically discharged" from the military due to complications from surgery and moved to Pennsylvania to be "closer to home." When she learned that defendant had been telling "a completely different story," thereby causing a rift in the family, S.H. decided to disclose the abuse to her brother and his wife, V.H., at S.H.'s Pennsylvania home. The disclosure prompted S.H.'s brother and sister-in-law to convene a family meeting with S.H.'s parents, during which defendant reportedly made incriminating statements.

On July 14, 2015, S.H. reported the abuse to the police and gave a formal statement to State Police Detective Mark Beardsley the following day. After interviewing S.H.'s brother and sister-in-law, at approximately 9:00 a.m. on July 21, 2015, Beardsley went to defendant's residence and requested that he come to the police station for an interview. Once defendant agreed, Beardsley transported defendant to the police station accompanied by Captain C.J. Tortella. Upon arrival, defendant was escorted to an interview room and administered his Miranda ⁶ rights. After voluntarily waiving his rights, defendant gave an incriminating video-recorded statement,⁷ after which he was arrested and charged.

During the four-day trial, in addition to S.H.'s testimony, the State's case-in-chief rested entirely on defendant's recorded statement, as well as the testimony of Detective Beardsley and S.H.'s sister-in-law, V.H. Beardsley explained in detail his training and experience conducting interrogations and dissected the interview process for the jury's benefit. During his testimony, Beardsley also evaluated and assessed defendant's statement after the statement was played for the jury. V.H. testified about S.H.'s disclosure to her, her "intuition" about defendant, and defendant's incriminating statements at the family meeting. According to V.H., during the family meeting convened the day after S.H.'s disclosure, defendant told her and her husband that "he had done something that he knew was wrong and inappropriate," and that he "should not have done it." Defendant further explained "that he was just trying to love [S.H.] more, and it [was] not like he was a molester or anything." Defendant also expressed concern "if it got out to the rest of the family" and the impact on "his job because he was a corrections officer at the time."

After the State rested, the judge denied defendant's motion for a judgment of acquittal. R. 3:18-1. Defendant did not testify at trial but produced eight character witnesses consisting primarily of family members who testified on his behalf. Following the jury verdict, the judge denied defendant's motion for a new trial, R. 3:20-1, and, after sentencing defendant, entered a memorializing judgment of conviction on June 28, 2018. This appeal followed.

II.

In Point I, defendant argues that "admitting defendant's interrogation at trial - replete with [Beardsley's] statements attacking [defendant's] denials as lies - was prejudicial." Additionally, defendant argues that Beardsley's testimony during the trial, both before...