State v. R.B.

Justice ALBIN,

dissenting.

The State’s case, essentially, rested on the credibility of one witness, the alleged child-sex-abuse victim, C.R., who was nine years old at the time of trial. In his summation, the prosecutor pursued a line of argument to bolster the child’s testimony that was unsupported by the evidence and clearly impermissible. Without any factual basis and in violation of the cardinal principle that one witness cannot vouch for the truth of another witness’s testimony, the prosecutor asked the jury to convict defendant because C.R.’s mother, grandmother, and the Hudson County Prosecutor’s Sexual Assault Victim’s Assistance Unit (SAVA) believed C.R.’s account of how he was victimized by defendant. The prosecutor’s highly prejudicial comments were made to the jury over the objection of defense counsel. I cannot agree with the majority that those improper prosecutorial remarks were harmless simply because trials by their nature are imperfect. Those remarks, along with others, poisoned defendant’s ability to receive a fair trial, particularly when combined with the court’s inappropriate charge on the use of Child Sexual Assault Accommodation Syndrome (CSAAS) testimony. Because I believe that this Court should grant defendant a new trial, I respectfully dissent.

I.

Defendant’s first trial ended in a hung jury. In the second trial, the jury learned that when C.R. was six years old, he was engaged in a pattern of depraved and destructive behavior, which included *335torturing the family cats, setting a fire in the house, defecating in the cats’ litter box, and punching his three-year-old sister. In response to this alarming conduct, C.R.’s mother asked him whether anyone had touched him inappropriately. After denying that anyone had improperly touched him, C.R. alleged that his biological father had done so. He then retracted that statement and implicated defendant, his stepfather. In a later interview with detectives from the Hudson County Prosecutor’s Office, C.R. claimed that defendant had sexually abused him.

In the absence of physical evidence, the prosecution’s case rested entirely on the credibility of C.R., whose trial testimony was buttressed by his prior out-of-court statements to his mother and detectives from the SAVA Unit. No witness, however, testified that C.R.’s account was truthful. In summation, defense counsel attempted to portray C.R. as untrustworthy, and asked the jury to reject his testimony. Against that backdrop, the prosecutor offered these remarks in summation:

PROSECUTOR: If he [C.R.] was lying several problems exist. If he was lying, first of all, he wouldn’t be able to lie to that many people____
He convinces his mother. She even testified she cried, although she says now that she doesn’t believe him, yet she cried when — when he told her this. He was such a good liar he convinced the grandmother to such a degree that she called the police.
He was such a good liar, he came up with such a good lie that the police referred the case to the SAVA Department.
DEFENSE COUNSEL: Objection, Judge. I think that’s an unfair comment that they made a judgment as to his credibility before they transferred it to the . Prosecutor’s Office. That’s the import of that statement.
THE COURT: Objection sustained, sir. There’s no determination of credibility involved in the referral process.
[ (Emphasis added).]

At the very least, the trial court understood that a referral of the case by the police to the sexual abuse unit of the Prosecutor’s Office was not evidence of defendant’s guilt. The court, however, did not correct in strong, categorical language the prosecutor’s prejudicial and seductive supposition that the jury should credit C.R.’s testimony because others accepted his account as true. The court did not correct the prosecutor’s suggestion that the call *336to the police by the grandmother — who did not even testify — was a clear indication that she believed C.R. The prosecutor’s argument that the grandmother and police believed C.R.’s description of events led to one irresistible conclusion — that they also believed defendant was guilty. The prosecutor kept hammering on this point.

PROSECUTOR: The Defense’s theory that [C.R.’s] making this up doesn’t make sense. It wouldn’t carry itself all the way through. Not only would he not lie to all these people, he wouldn’t be able to lie successfully to all these people.
A seven year old boy who comes up with a lie, the mother and the grandmother would see right through it. The SARA Unit would see right through it.
DEFENSE COUNSEL: Objection, Judge.
COURT: Overruled — submission.
PROSECUTOR: A seasoned defense attorney would be able to bring it out that he was lying. The Defense would have you believe that this seven year old boy from the time he’s seven to nine is such a sophisticated liar that he’s able to maintain his lie throughout this entire process without being called on it.
[(Emphasis added).]

The court should have forcefully sustained defense counsel’s objection for several reasons. First, the prosecutor’s remarks were not supported by the record and cannot be considered fair comment. There was no testimony that C.R.’s mother, his grandmother, or the SAVA Unit had endorsed the truthfulness of C.R.’s account. By claiming that they did, the prosecutor, in essence, offered testimony bolstering C.R.’s credibility. Second, that portion of the prosecutor’s argument was remarkably similar to his earlier remarks disapproved of by the trial court. Nevertheless, over defense counsel’s objection, the prosecutor was permitted to present a seemingly neat, logical argument in which C.R.’s mother, grandmother, and the SAVA Unit were transformed into infallible lie detectors. The prosecutor’s argument suggested that C.R. was incapable of pulling the wool over the eyes of his mother, grandmother, and the SAVA Unit and, therefore, C.R. must be truthful and defendant must be guilty. Moreover, the jury likely could not have distinguished between the earlier disallowed remarks and the later permitted remarks that carried the exact same message. Under those circumstances, both sets of prosecu*337torial remarks possessed the very real potential to prejudice the jury’s determination of C.R.’s credibility.

A prosecutor may neither personally vouch for a witness nor refer to evidence beyond the record to support a witness’s credibility. State v. Walden, 370 N.J.Super. 549, 560, 851 A.2d 758 (App.Div.), certif. denied, 182 N.J. 148, 862 A.2d 56 (2004). We do not allow one witness to vouch for the testimonial account of another witness because the ultimate determination of a witness’s credibility falls within the exclusive domain of the jury. See, e.g., State v. Frisby, 174 N.J. 583, 593-94, 811 A.2d 414 (2002); see also State v. Smith, 167 N.J. 158, 184-85, 770 A.2d 255 (2001) (holding that implicitly endorsing credibility of State’s witness is improper).

In Frisby, supra, the defendant was convicted of second-degree endangering the welfare of a child in connection with the death of her infant son. 174 N.J. at 587, 811 A.2d 414. The case was a “pitched credibility battle” between the defendant and the child’s father over who was responsible for the care of the child at the time of his death. Id. at 596, 811 A.2d 414. At defendant’s trial, two law enforcement officers testified that they had “ ‘substantiated’ ” the father’s account and his whereabouts by speaking with witnesses. Id. at 591, 811 A.2d 414. One officer stated that there was “ ‘not enough information for us to charge [the father] with anything.’ ” Id. at 592, 811 A.2d 414. The other testified that the father “was not charged because the police ‘didn’t feel that there was enough evidence, that he was more credible than [the defendant] at that point.’ ” Ibid.

We reversed the defendant’s conviction because, “[b]ased on the hearsay evidence, the police essentially gave the jury their opinion regarding the innocence of [the father] and inferentially the guilt of [the defendant].” Id. at 593-94, 811 A.2d 414. In Frisby, supra, we held that “ ‘[t]here is no provision in our legal system for a “truth-teller” who is authorized to advise the jury on the basis of ex parte investigations what the facts are and that the defendant’s story is a lie.’” Id. at 595, 811 A.2d 414 (quoting State v. Pasterick, 285 N.J.Super. 607, 620, 667 A.2d 1103 (App. *338Div.1995)). We noted that “ ‘the question of a witness’ credibility has routinely been regarded as a decision reserved exclusively for the jury’ ” and that “ ‘ordinarily jurors require no expert assistance’ ” on the subject. Id. at 594, 595, 811 A.2d 414 (quoting State v. J.Q., 252 N.J.Super. 11, 39, 599 A.2d 172 (App.Div.1991), aff'd, 130 N.J. 554, 556, 617 A.2d 1196 (1993)). We concluded that “[a]ny improper influence on the jury that could have tipped the credibility scale was necessarily harmful and warrant[ed] reversal.” Id. at 596, 617 A.2d 1196.

I cannot find any principled distinction between Frisby, supra, and this case. In Frisby, supra, two witnesses in their testimony improperly vouched for the credibility of another witness. Here, the prosecutor gave the functional equivalent of testimony when he improperly vouched for the credibility of C.R. Without any evidential support, the prosecutor was permitted to argue that C.R.’s family members and the police had endorsed the truthfulness of C.R.’s account. Moreover, the jury may have been inclined to give undue weight to the suggestion that the SAVA Unit — a law enforcement unit specializing in the handling of sexual abuse cases — believed C.R. Arguably, the prejudice was exponentially greater in this case because the prosecutor had the last word in summation, defense counsel had no opportunity to respond, and the court gave its imprimatur to the prosecutor’s remarks. In both cases, improper bolstering diluted the jury’s ultimate and exclusive responsibility to determine the credibility of the witnesses. In this ease, the prosecutor’s testimonial remarks exceeded the bounds of fair comment and had the clear potential to tip the credibility scales in the jurors’ minds. This Court has held that the appropriate remedy in such circumstances is reversal and a new trial. Ibid.

Moreover, I agree with the majority that the prosecutor violated the oft-repeated admonition that it is improper to argue in summation that a police officer should be believed because he has no motive to lie due to the office he holds. I disagree with the majority that we have not squarely ruled on this issue. In State v. *339Frost, we characterized as “egregious” the prosecutor’s summation remark “that the police officers would not lie because of the ‘magnitude’ of charges that could be brought against them.” 158 N.J. 76, 85, 727 A.2d 1 (1999). That remark was part of a mosaic of cumulative error that resulted in the reversal of the defendants’ convictions. Id. at 88-89, 727 A.2d 1. We further noted in Frost, supra, that

[o]ur courts have consistently held that such statements by a prosecutor about a police officer’s credibility are wholly inappropriate. See, e.g., State v. Goode, 278 N.J.Super. 85, 90, 650 A.2d 393 (App.Div.1994) (recognizing that it was improper for prosecutor to tell jury that police had no motive to lie); [State v.[ Staples, [ ] 263 N.J.Super. [602,] 604-06, 623 A.2d 791 [ (App.Div.1993) ] (recognizing impropriety of prosecutor asking officer “is your career and the penalties that you would sustain for perjuring yourself worth the conviction for a $20.00 bag of cocaine?” during direct examination); [State v.[ Engel, [ ] 249 N.J.Super. [336,] 379, 592 A.2d 572 [ (App.Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991) ] (recognizing that it was improper for prosecutor to tell jury that investigators were “good men who leave their family [and] work day and night” and would not “jeopardize their careers” over defendants); State v. West, 145 N.J.Super. 226, 233-34, 367 A.2d 453, (App.Div.1976), certif. denied, 73 N.J. 67, 372 A.2d 332 (1977) (finding improper prosecutor’s statements that police officer would not lie because “[t]here is a lot of harm that could come to him” and because “the police officer’s career would be finished in a minute”); State v. Jones, 104 N.J.Super. 57, 65, 248 A.2d 554 (App.Div.1968), certif. denied, 53 N.J. 354, 250 A.2d 755 (1969) (stating that it is “obviously improper” to imply that police testimony should be accepted, “not because of its believability but because the witnesses were policemen”). •
[Id. at 85-86, 727 A.2d 1.]

In this case, the prosecutor stated that “Detective Hadfield has no reason to lie____ [H]e was only assigned to that unit for two months. He’s not going to, two months into the job, fabricate a partial confession from somebody.”6 Those remarks had the additional vice of suggesting that the prosecutor personally vouched for the credibility of the detective. “A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness’s testimony.” Staples, supra, 263 N.J.Super. at 605, 623 A.2d 791 (citing State v. Marshall, 123 N.J. 1, 154, 156, 586 A.2d 85 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993)).

*340The alleged victim’s credibility, which was hotly contested, was the cornerstone of the State’s case. I believe that the cumulative effect of the prosecutor’s summation remarks denied defendant his right to a fair trial.

II.

In approving the use of expert testimony to explain Child Sexual Abuse Accommodation Syndrome, this Court recognized the real potential that a jury might consider such evidence for an improper purpose. State v. J.Q., 130 N.J. 554, 578, 617 A.2d 1196 (1993). Accordingly, we stressed that when the jury receives expert CSAAS testimony, it must “be given proper instructions limiting the evidence to the purpose for which it is offered!.]” Id. at 584, 617 A.2d 1196. CSAAS testimony is allowed in order to explain why a child who is a victim of sexual abuse might delay reporting the abuse. State v. P.H., 178 N.J. 378, 395, 840 A.2d 808 (2004). CSAAS evidence is not admissible as substantive proof that child sexual abuse actually occurred. State v. W.L., 278 N.J.Super. 295, 301-02, 650 A.2d 1035 (App.Div.1995); see generally J.Q., supra, 130 N.J. at 574-84, 617 A.2d 1196. Therefore, “when CSAAS evidence is admitted, the jury must receive a specific instruction that such testimony does not answer the ultimate question whether the victim’s molestation claims are true.” P.H., supra, 178 N.J. at 396, 840 A.2d 808.

The importance of a correct CSAAS charge in this case should not be underestimated. Our caselaw does not permit CSAAS testimony to be used as substantive evidence against a defendant. P.H., supra, 178 N.J. at 396, 840 A.2d 808; W.L., supra, 278 N.J.Super. at 301-02, 650 A.2d 1035. The same day that the case went to the jury, the State’s CSAAS expert testified that fire-starting and hurting animals are part of a pattern of behavior typical in sexually abused children. With that testimony fresh in their minds, the jurors could not have failed to make the prohibited connection to C.R.’s mother’s testimony concerning her son’s setting fire to a rug and torturing cats. The jury was able to put *341two and two together: a child who sets fires and tortures animals must have been abused.

However “fleeting” the expert’s testimony on the forbidden subject, the impact was nonetheless devastating to the defense. An earthquake can be fleeting — a matter of seconds — but the destruction it leaves in its wake is lasting. The harm caused by the expert is not measured by the time she dwelled on the highly inflammatory matter, but by the probable effect it had on the jury.

The perfect coincidence between the expert’s testimony and C.R.’s mother’s testimony required that the trial court warn the jury explicitly that it could not consider the CSAAS testimony as evidence that abuse had occurred. The trial court, however, did not give the necessary warning to counteract the clear prejudice to defendant. The trial court opted not to read the Model Jury Charge on the proper use of CSAAS testimony and instead crafted its own charge gutting many of the protections in the model instructions.

The model CSAAS jury instruction gives multiple warnings about the permissible and forbidden uses of CSAAS evidence with the goal of reinforcing the limited nature of such evidence. The Model Jury Charge provides the following cautionary instructions:

You may not consider Dr. [A]’s testimony as offering proof that child sexual abuse occurred in this case. [Likewise, you may not consider Dr. [B]’s testimony as proof that child sexual abuse did not occur.] The Child Sexual Abuse Accommodation Syndrome is not a diagnostic device and cannot determine whether or not abuse occurred. It relates only to a pattern of behavior of the victim which may be present in some child sexual abuse cases. You may not consider expert testimony about the Accommodation Syndrome as proving whether abuse occurred or did not occur. Similarly, you may not consider that testimony as proving, in and of itself, that_, the alleged victim here, was or was not truthful.
Dr. [AJ’s testimony may be considered as explaining certain behavior of the alleged victim of child sexual abuse. As I just stated, that testimony may not be considered as proof that abuse did, or did not, occur____
You may not consider the expert testimony as in any way proving that [defendant] committed, or did not commit, any particular act of abuse.
[Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (2001) (emphasis added).]

*342On the other hand, the trial court, in its own tailored charge, reduced the repeated warnings in the Model Charge to just one sentence: “[CSAAS evidence] may not be considered by you as establishing that the child was a victim of sexual abuse or that the defendant committed an act of sexual abuse on the child.” I cannot agree with the majority that the failure to impress forcefully on the jury the strictly limited use of CSAAS testimony is “an exercise in arithmetic.”

Moreover, the court’s charge departed from the Model Charge by giving an illustration of the use of CSAAS testimony through a thinly veiled retelling of the facts . of the current case.7 In contrast, the Model Charge gives a neutral example of a property crime, rather than a sexual assault crime, to explain the import of delayed reporting in the context of CSAAS testimony, thereby avoiding any hint of partiality.8

Finally, the trial court’s jury instructions repeatedly referred to “the victim” or “the child victim,” whereas the Model Jury Charge refers to “the alleged victim.” Ibid. The court’s identification of C.R. as the victim in the jury charge had the obvious potential to *343diminish the presumption of innocence accorded to defendant. In isolation, and particularly because defense counsel raised no objection, such an error might not appear to be of great moment. However, we should not overlook the cumulative effect of the errors in this case — even plain errors.

“ ‘[Cjlear and correct jury instructions are essential for a fair trial’ because the jury charge ‘is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.’ ” State v. Marshall, 173 N.J. 343, 359, 801 A.2d 1142 (2002) (quoting State v. Koskovich, 168 N.J. 448, 507, 776 A.2d 144 (2001)). The court’s significant departure from the Model Jury Charge may well have sent the jury in the wrong direction.

I cannot conclude that the combination of errors in the prosecutor’s summation and in the charge to the jury was harmless. Unlike the majority, I believe that defendant was denied his right to a fair trial and that he should receive a new trial. I, therefore, dissent.

Justices LONG and WALLACE join in this opinion.

For affirmance — Chief Justice PORTIZ and Justices LaVECCHIA, ZAZZALI, and RIVERA-SOTO — 4.

For reversal — Justices LONG, ALBIN, and WALLACE — 3.

The court sustained defense counsel's objection to those comments.

The court gave the following instruction:

Let me give you an example to illustrate the proper use of such evidence. Let's suppose at the trial there was sexual assault upon a child, the facts disclose that the child victim did not tell her mother about the assault for ■ several days. At trial, if the defense attorney highlights for the jury the gap in time between the alleged assault and the child's first complaint seeking to have the jury infer that a normal truthful child would report such an offense immediately, and, therefore, this victim’s delay in reporting the offense indicates that she's not being truthful.

The Model Charge provides:

To illustrate, in a burglary or theft case involving an adult property owner, if the owner did not report the crime for several years, your common sense might tell you that the delay reflected a lack of truthfulness on the part of the owner. In that case, no expert would be offered to explain the conduct of the victim, because that conduct is within the common experience and knowledge of most jurors.

[Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (2001).]