STATE OF NEW JERSEY VS. J.L.G. (14-09-1098, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3631-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.L.G., 1
Defendant-Appellant.
_______________________
Argued January 25, 2021 – Decided July 30, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-09-
1098.
Rochelle Watson, Deputy Public Defender II, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Rochelle Watson, of counsel and
on the brief).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Yolanda Ciccone, Middlesex County
1
We use initials to protect the confidentiality of the victims. R. 1:38-3(c)(12).
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
PER CURIAM
Following a jury trial, defendant, an armed security guard, was convicted
of second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count seven); second-degree endangering the welfare of a child,
namely, his son, J.G., N.J.S.A. 2C:24-4(a) (count four); third-degree terroristic
threats against J.G., N.J.S.A. 2C:12-3(a) (count six); fourth-degree aggravated
assault by pointing a firearm at J.G., N.J.S.A. 2C:12-1(b)(4) (count one); and
simple assault upon his wife, D.G., a disorderly persons offense, N.J.S.A.
2C:12-1(a)(3) (a lesser included offense of count three). Defendant was
sentenced to an aggregate term of five years' imprisonment with a three-and-
one-half-year period of parole ineligibility.
The charges stemmed from a domestic dispute with defendant's teenage
son, J.G., that began when J.G. interceded in an altercation between defendant
and his wife, D.G., J.G.'s step-mother. Following the initial altercation,
defendant threatened to kill J.G. and others, retrieved a loaded .38 caliber
revolver from his upstairs bedroom closet, and resumed fighting with his wife
while armed with the gun in the presence of A.G., defendant's other son and
J.G.'s three-year-old half-brother. When defendant returned upstairs where J.G.
2 A-3631-17
had remained, he pointed the gun at J.G., shoving the barrel against J.G.'s cheek,
before returning the gun to his closet and falling asleep.
On appeal, defendant raises the following points for our consideration:
POINT I:
THE TRIAL COURT ERRED IN ADMITTING
[J.G.'S] PRIOR CONSISTENT STATEMENT AS IT
WAS MADE WHEN HIS MOTIVE TO FABRICATE
WAS MOST ACUTE AND IT WAS NOT
PROBATIVE OF HIS CREDIBILITY;
COMPOUNDING THE PREJUDICE, THE PRIOR
STATEMENT INJECTED N.J.R.E. 404(A) AND (B)
EVIDENCE THAT DEFENDANT WAS A
DRUNKEN DOMESTIC ABUSER INTO [THE]
TRIAL
A. [J.G.'S] Prior Consistent Statement
Lacked Probative Value And Should Have
Been Excluded.
B. Alternatively, The Prior Consistent
Statement Should Have Been Sanitized To
Omit Reference To Defendant's Excessive
Alcohol Consumption And Prior Instances
Of Domestic Violence. (Not Raised
Below).
POINT II:
WHERE THE TRIAL JUDGE RULED THAT A.G.'S
PRIOR INCONSISTENT STATEMENT WAS
UNRELIABLE AND INADMISSIBLE, THE JUDGE
ERRED IN ADMITTING A PORTION OF THE
PRIOR INCONSISTENT STATEMENT – ON THE
CRITICAL ISSUE – INTO EVIDENCE.
3 A-3631-17
POINT III:
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL
BASED ON TWO INSTANCES OF
PROSECUTORIAL MISCONDUCT: THE
PROSECUTOR ACCUSED DEFENDANT OF
WITNESS TAMPERING AND BOLSTERED THE
CREDIBILITY OF THE SOLE INCULPATORY
WITNESS.
Because we agree that J.G.'s prior consistent statement should have been
excluded, we reverse.
I.
We glean these facts from the four-day trial, that began on February 28,
2017, during which J.G., born July 1998, was the State's principal witness. J.G.
testified that due to a troubled relationship with his birth mother, M.S., at the
end of 2013, he moved in with defendant, his birth father; D.G., his stepmother;
and A.G., his half-brother. J.G. described his troubled relationship with M.S. as
him "being a rebellious teen at the time, just hardheaded, didn't really want to
listen to her."
J.G. testified that after moving in with his father, on the morning of June
7, 2014, he awoke to "commotion" coming from downstairs. J.G. stated his
stepmother and father were "[a]rguing" loud enough to wake him up. Once he
was awake, J.G. proceeded to get ready for A.G.'s fourth birthday party that was
4 A-3631-17
scheduled for later in the day. While J.G. was getting ready, he was "summoned
downstairs" by his stepmother in a "worried voice." When J.G. went downstairs
to the living room, he saw his father "pretty close to the couch where [his step-
mother] was sitting." After inquiring "what's going on" and receiving no
response, J.G. returned upstairs to his bedroom. Once upstairs, J.G. was called
by his stepmother a second time but "louder" and "more demanding." Fearing
that "something [was] . . . wrong," J.G. "ran downstairs as fast as [he] could"
and observed defendant holding his stepmother's "wrists" with one hand while
"his other hand was balled up into a fist."
J.G. immediately "got in-between them" and gave defendant a "bear hug"
to try to "restrain him." J.G. "believe[d]" he detected the smell of alcohol on
defendant's breath and indicated that defendant became "aggressive" "when he
[was] drunk." J.G. then implored defendant to "calm down" because his younger
brother was in the living room witnessing the altercation. In response, defendant
became "emotional and cried on [J.G.'s] shoulder" while whispering "I'm going
to kill all you . . . motherfuckers."
After J.G. "loosened [his] grip" and defendant extricated himself,
defendant went upstairs to his bedroom while J.G. followed. Once inside his
bedroom, J.G. observed defendant "take his work gun out of [its] holster," which
5 A-3631-17
"was attached to [defendant's] work belt . . . on the floor." 2 J.G. described the
gun as a "black revolver." After J.G.'s efforts to "restrain [defendant] again"
and persuade him to "put [the gun] away" failed, "[defendant] went back
downstairs" while J.G. "sat on the top of the stairs . . . . traumatized" and
"crying." Although J.G. could not see into the living room from his vantage
point, he heard his stepmother say "get that gun out of my face." J.G. also heard
his stepmother say "he didn't need to be seeing this," referring to his brother,
A.G. J.G. then heard "a smack[,] . . . [k]inda like a facial smack."
Thereafter, according to J.G., defendant "made his way back upstairs."
When defendant reached J.G. on the stairs, defendant placed "the barrel of the
gun to [his] cheek and then . . . put [the gun] in [J.G.'s] hand." J.G. explained
that "[he] could feel [the gun] pushing against [his] braces." After showing J.G.
that the gun "was loaded," defendant taunted J.G., telling him "you have the
power now." When J.G. refused to accede to defendant's taunt and "point [the]
gun at [defendant]," defendant told J.G. that he "had no balls as a man," "took
the gun away from [J.G.]," and "made his way back to his [bed]room."
2
Defendant carried a firearm for his job providing security for various federal
facilities.
6 A-3631-17
According to J.G., as defendant walked away, defendant kicked him slightly in
the "[l]ower back."
After the incident, J.G. called his mother on his cellphone. He told her
what had occurred and told her that he wanted to come home. J.G.'s mother
directed him to gather his belongings while she made arrangements to pick him
up. Meanwhile, J.G. attended A.G.'s birthday party at a nearby bowling alley
with his stepmother. Defendant did not attend the party. During the car ride to
the party, J.G.'s stepmother instructed him to "keep [his] mouth shut about [the
incident]."
While J.G. was at the party, his mother contacted her sister, who lived
closer to defendant's residence in Perth Amboy, and arranged for her to pick up
J.G. Ultimately, J.G.'s aunt picked him up after he returned to defendant's home
following A.G.'s birthday party and brought him to her house to await his
mother's arrival. Upon arrival, J.G.'s mother took J.G. to the Perth Amboy
Police Department where he gave a recorded statement to police.
On cross-examination, J.G. was asked whether he reported the incident on
the same day that defendant had informed him that he would be attending a
scholastic program at Kean University called Adelante four days a week during
the summertime. J.G. acknowledged that he had been attending the program on
7 A-3631-17
Saturdays only and resisted attending four days a week but could not recall when
defendant told him about the expanded attendance schedule. J.G. denied the
implication that he fabricated the story about his father so that he could return
to his mother's house in South Jersey and avoid the more regimented summer
schedule his father had planned for him.
Defendant was arrested without incident at his home early the following
morning, June 8, 2014. After consenting to a search of his home, police
recovered three lawfully owned firearms in his bedroom, namely, a .38 caliber
black Taurus revolver, a .38 caliber silver Taurus revolver, and a black Smith &
Wesson nine-millimeter handgun. The black Taurus was found in defendant's
"duty belt, in the holster, underneath his work clothes on the floor of the closet."
The silver Taurus was found "in a cardboard box in [a] plastic container" and
the Smith & Wesson was found "in [a locked] lock box." Subsequent ballistics
testing revealed that all three firearms were operable.
During the trial, in addition to J.G., law enforcement witnesses, and
caseworkers from the Division of Child Protection and Permanency (DCPP), the
State produced J.G.'s mother, J.G.'s stepmother, and J.G.'s half-brother. J.G.'s
mother, M.S., confirmed that she allowed J.G. to live with defendant in late 2013
because he was "being very rebellious." She attested that when she received the
8 A-3631-17
hysterical call from J.G. on June 7, 2014, she arranged with her sister to pick
him up while she travelled from her home in South Jersey. When she arrived at
her sister's home and found J.G. "scared" and "terrified," she took him to the
Perth Amboy Police Department in the early morning hours of June 8, 2014, to
report the incident. On cross-examination, M.S. acknowledged text messages
she had sent to defendant in late December out of frustration in which she had
described J.G. as a "[c]ompulsive liar" and stated that J.G. "lied so much that
[she] didn't believe . . . an f'ing word out of his mouth." However, she testified
that she believed J.G. when he called her crying and upset on June 7, 2014,
because it was out of character for him to be that upset.
In contrast, J.G.'s stepmother, D.G., vehemently denied that anything
happened on June 7, 2014, and testified that the incident was completely
contrived by J.G. who "wanted to . . . return back home to his house where he[]
apparently had very [lax] supervision." D.G. testified that after J.G. moved in,
defendant "was very, very strict" about J.G.'s education and "enrolled [him] in
[the] ROTC 3 program" in addition to Adelante. D.G. stated that just before J.G.
reported the incident, defendant told J.G. that he would be attending Adelante
full time in the summer and "[J.G.] said he wasn't going." According to D.G.,
3
The United States Army Reserve Officers' Training Corps.
9 A-3631-17
the only argument that occurred on June 7 was related to J.G.'s "[poor] grades
and . . . behavior."
D.G. also denied that she was "a victim [o]f domestic violence" despite
the State producing a DCPP caseworker who responded to her home on June 9,
2014, and observed visible bruises on D.G.'s "face and chest area." D.G.
testified that the bruises were caused by "an anemic condition" and a "fall" in a
parking lot. 4 D.G. had also interjected herself during a DCPP caseworker's
interview of A.G. the morning following the incident, June 8, 2014, when she
indicated that A.G. did not see a gun on June 7 but had only seen defendant
cleaning his gun on a prior occasion. D.G. also stated that A.G. did not see
defendant hit her on June 7 but was confused by what he had seen in cartoons. 5
4
In contrast, D.G. had explained to the DCPP caseworker that the bruises were
caused by A.G. "hit[ting] her with toys," because he was "very rambunctious."
5
D.G. also denied the DCPP caseworker's account that there was evidence of
excessive drinking in the home on the morning of June 8, 2014. D.G. testified
that she and defendant each had "one drink" the day before on June 7. However,
based on the caseworker's description of D.G. as being "disoriented" and having
"slurred speech" when D.G. answered the door at about 7:00 a.m. on June 8, and
D.G.'s ultimate admission to the caseworker that she had consumed alcohol,
taken a sleeping pill, ingested prescription medication, and was "overwhelmed"
in her caretaking role, A.G. was removed from the home and placed with his
maternal grandparents. He was subsequently returned to his parents' care.
10 A-3631-17
A.G. testified that he recalled the police coming to his house and he
recalled that J.G. and his mother were "crying." However, he stated that
defendant did not have a gun but "had a [Maglite 6] and [defendant] was just
holding it." According to A.G., his mother told defendant to "[p]ut [the Maglite]
. . . away" because "she thought . . . it was a gun." A.G. stated that he also
thought it was a gun "[b]ecause it looked black like a gun," but he was mistaken.
A.G. explained that he realized his mistake when defendant "showed it to [him]
one day" and "it was a Maglite," not a gun. When probed, A.G. was unclear
about when the discussion with defendant about the Maglite had occurred but
agreed that it had occurred recently. A.G. also acknowledged that when he had
previously come to court, 7 he had mistakenly stated that defendant "had a
MegaBlaster, but he had a Maglite" instead.
Twelve days after the incident, on June 19, 2014, A.G. was interviewed
by Nicole Ortiz, a forensic interview specialist with the Middlesex County
Prosecutor's Office. Ortiz testified that during the course of the interview, A.G.
never mentioned seeing his father with a Maglite or a flashlight.
6
A.G. clarified that the Maglite "was just a flashlight."
7
A.G. had previously come to court on August 24, 2016, for a competency
hearing, after which a different judge ruled that A.G. was competent to testify.
11 A-3631-17
When M.S. took J.G. to the Perth Amboy Police Department on the
morning of June 8, 2014, he was interviewed by Sergeant Panagioti Boulieris,
an officer with expertise in "matters involving juveniles." After administering
the oath, Boulieris took a recorded statement from J.G., which statement was
authenticated by Boulieris and played for the jury at trial. The statement was
consistent with J.G.'s trial testimony.
Defendant's motion for a judgment of acquittal made at the close of the
State's case, pursuant to Rule 3:18-1, was granted in part. The judge dismissed
counts two 8 and five which charged defendant with fourth-degree aggravated
assault and second-degree child endangerment, both pertaining to A.G. The
remaining counts survived the motion.
Defendant produced two character witnesses, a former coworker and a
childhood friend, both of whom testified about defendant's reputation for
honesty and peacefulness in the community. Defendant also testified on his own
behalf and denied J.G.'s account, describing it as "a false story" that was entirely
"made up" by J.G. Defendant confirmed the circumstances under which J.G.
came to live with him and reiterated M.S.'s characterization of J.G. as "always
being a liar." Defendant testified that J.G. "started to lie to [him]" after moving
8
The judge mistakenly referred to count three instead of count two.
12 A-3631-17
in with him. Defendant also confirmed that he enrolled J.G. in an ROTC
program "to keep him on track" and "out of trouble," and enrolled him in
Adelante "[t]o get him ahead" and "give him a fresh start" because his grades
were "well below passing."
According to defendant, on June 7, 2014, the date of the alleged incident,
he and D.G. sat J.G. down "to reprimand" him about a report they had received
from J.G.'s school. During the discussion, defendant told J.G. that during the
summer, he would be attending Adelante full time, which was from "Monday to
Thursday." Defendant told J.G. that for the remaining days, he was "going to
get a part-time job." Defendant testified that J.G. "was not too thrilled" and was
resistant.
Regarding the alleged incident, defendant admitted that on the morning of
June 7, he and D.G. each "had one drink" 9 but denied that they argued.
Defendant specifically denied the allegations of domestic violence and testified
that A.G. caused the bruises on D.G. because he was "very rough with [her]."
Additionally, defendant vehemently denied pointing a gun at any member of his
family. He explained that when A.G. testified that it was defendant who had
9
Defendant testified that he did not "drink that much at all," and he did not "get
aggressive even off of one drink."
13 A-3631-17
made him realize that he had seen a Maglite rather than a gun, A.G. was referring
to a prior conversation "[a] while back" during which he had "explained to
[A.G.] what everything was on [his work] belt." Defendant stated that A.G.
could not "differentiate time that well." Defendant acknowledged that he did
not attend A.G.'s birthday party with the others but denied that he was passed
out as a result of the altercation. Instead, he explained that he did not attend
because "[he] had a migraine headache." According to defendant, the first time
he became aware of the allegations was when police officers came to his house
to arrest him.
In rebuttal, the State produced DCPP caseworker Lisa Androsko who
responded to the home on June 9, 2014, after defendant was released. She
testified that defendant told her that after returning home from work on June 6,
2014, he stayed in his car "relaxing" and did not enter his home until "around
[10:00] a.m." the following morning, June 7, 2014. He said that when he went
inside, his wife was questioning him about his whereabouts and the two argued.
Defendant also told Androsko that he and his wife "were drinking . . . at 11:30
a.m." the morning of June 7. He specified that "he had two Bacardi and Sprite
drinks, and his wife had three of the same drinks." According to Androsko,
neither defendant nor D.G. mentioned Adelante.
14 A-3631-17
This appeal followed defendant's convictions and sentence, which was
memorialized in a December 22, 2017 judgment of conviction.
II.
In Point I, defendant argues that J.G.'s prior consistent statement was
inadmissible under N.J.R.E. 803(a). Defendant asserts that "[b]ecause the case
. . . hinged entirely on [J.G.'s] testimony and his prior consistent statement was
the sole piece of evidence the jury asked to review during deliberations," its
admission "was reversible error." Defendant continues that "even if the
statement were admissible, the failure to sanitize the statement to redact
references to defendant's drinking, aggressiveness, and penchant for domestic
violence is an independent ground for reversal."
"[I]n reviewing a trial court's evidential ruling, an appellate court is
limited to examining the decision for abuse of discretion." State v. Kuropchak,
221 N.J. 368, 385 (2015) (citation omitted). Under that standard,
"[c]onsiderable latitude is afforded a trial court in determining whether to admit
evidence," and "an appellate court should not substitute its own judgment for
that of the trial court, unless 'the trial court's ruling was so wide of the mark that
a manifest denial of justice resulted.'" Id. at 385-86 (alteration in original)
(citations omitted).
15 A-3631-17
Here, after J.G. was cross-examined, the prosecutor sought to introduce
J.G.'s prior recorded statement through Sergeant Boulieris "to rebut [the] claim
that he fabricated" the incident. In support, the prosecutor asserted defense
counsel "skillfully brought out the motive" that J.G. was lying because "he did
[not] want to go to summer school for four days a week." Defense counsel
objected, arguing he did not cross-examine J.G. on his prior statement and
asserting that introducing the prior statement was unnecessary because he gave
"the same exact statement" during his trial testimony. The trial judge overruled
defense counsel's objection and admitted J.G.'s prior recorded statement to
Sergeant Boulieris under N.J.R.E. 607 and 803 to rebut the accusation of "recent
. . . fabrication or improper motive." The judge noted that J.G. was the State's
"whole case" and an attack on his "truthfulness or honesty" "open[ed] the door."
Generally, "[a] prior consistent statement offered to bolster a witness'
testimony is inadmissible." Palmisano v. Pear, 306 N.J. Super. 395, 402 (App.
Div. 1997). "However, a prior statement may be admitted in evidence to support
the credibility of a witness for the purpose of rebutting an expressed or implied
charge of recent fabrication." Ibid. In that regard, Rule 607 provides in relevant
16 A-3631-17
part 10 that "[a] prior consistent statement shall not be admitted to support the
credibility of a witness except to rebut an express or implied charge against the
witness of recent fabrication or of improper influence or motive and except as
otherwise provided by the law of evidence." Similarly, Rule 803(a)(2) 11
excludes from hearsay the prior statement of a witness that "is consistent with
the witness' testimony and is offered to rebut an express or implied charge
against the witness of recent fabrication or improper influence or motive."
"A 'charge' of recent fabrication can be effected through implication by
the cross examiner as well as by direct accusation of the witness." State v.
Johnson, 235 N.J. Super. 547, 555 (App. Div. 1989) (quoting State v. King, 115
N.J. Super. 140, 146 (App. Div. 1971)). "Further, such a charge can be implied
in the opening statement and confirmed by the closing argument." State v.
Moorer, 448 N.J. Super. 94, 108 (App. Div. 2016).
"The scope of the [Rule 803(a)(2)] exception encompasses prior
consistent statements made by the witness before the alleged 'improper influence
or motive' to demonstrate that the witness did not change his or her story." Id.
10N.J.R.E. 607 has been amended since the trial occurred but will be referred
to in this opinion as it existed at the time of the 2017 trial.
11
N.J.R.E. 803(a) has been amended since the trial occurred but will be referred
to in this opinion as it existed at the time of the 2017 trial.
17 A-3631-17
at 110 (quoting Neno v. Clinton, 167 N.J. 573, 580 (2001)). Thus, in Moorer,
we held that "fabrication is 'recent' if it post-dates a prior consistent statement."
Id. at 110. In such a situation, "the prior consistent statement has clear probative
value." Id. at 111. We explained:
Impeachment by charging that the testimony is a recent
fabrication or results from an improper influence or
motive is, as a general matter, capable of direct and
forceful refutation through introduction of out-of-court
consistent statements that predate the alleged
fabrication, influence, or motive. A consistent
statement that predates the motive is a square rebuttal
of the charge that the testimony was contrived as a
consequence of that motive.
[Ibid. (quoting Tome v. U.S., 513 U.S. 150, 158
(1995)).]
In Moorer, the defendant challenged the admission of a detective's "prior
consistent testimony concerning whether defendant took off his hat and threw it
behind the couch." Id. at 106. The detective's report prepared the night of
defendant's arrest did not mention the hat. Ibid. However, during his trial
testimony, the detective testified about the hat and stated "he forgot to mention
defendant's discarding the hat in his report." Id. at 106-07. After defense
counsel implied that the detective accurately recorded the events when he wrote
his report and recently fabricated a new version of events after reviewing
another officer's report that mentioned the hat in preparation for trial, the
18 A-3631-17
prosecutor moved to introduce the detective's prior consistent testimony from a
prior proceeding "to rebut an implication of recent fabrication." Id. at 107. We
determined that "[t]he trial court properly admitted [the detective's] prior
testimony under Rule 803(a)(2)," and held that "[s]uch fabrication during trial
or in preparation for trial is certainly 'recent' in common parlance." Id. at 108,
110.
In State v. Chew, 150 N.J. 30 (1997), "[o]ur Supreme Court has declined
to adopt as a rigid admissibility requirement that the prior statement was made
prior to the motive or influence to lie." State v. Muhammad, 359 N.J. Super.
361, 386 (App. Div. 2003) (citing Chew, 150 N.J. at 81). Recognizing that
"many things were happening as the different stories unfolded," and that "[t]here
were shades of difference between the witnesses' motivations at different times,"
the Chew Court upheld the admission of prior consistent statements given "the
differing motives to fabricate" arising at different times. 150 N.J. at 80-81. The
Court concluded that "[g]iven the relationship among the several statements,"
"[t]he prior consistent statements had significant 'probative force bearing on
credibility beyond merely showing repetition.'" Id. at 81 (quoting United States
v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986)). Further, "defendant highlighted
19 A-3631-17
numerous inconsistencies between the witnesses' statements, and between the
different versions of the statements that the witnesses provided." Id. at 81.
Likewise, in Muhammad, we determined that a witness' prior consistent
statement was properly admitted under Rule 803(a)(2), reasoning:
As in Chew much was happening at the various times
[the witness] made statements and testified, and his
motivations likely differed at different times. The
defense used the taped statement to impeach [the
witness] by pointing out inconsistencies with his prior
statements and his trial testimony. The statement was
not irrelevant to rebut the charge that [the witness']
testimony was the product of an improper influence or
motive to lie. As in Chew, it related to differing
motives to fabricate and was used for rehabilitative
purposes.
[359 N.J. Super. at 389 (citing Chew, 150 N.J. at 81).]
In rendering our decision in Muhammad, we pointed out that:
the purpose of [Rule] 803(a)(2) is best advanced by not
requiring a strict temporal requirement, but instead
allowing trial judges to evaluate relevance under all of
the circumstances in which the prior statement is
proffered. In reaching this conclusion we recognize
that whether the statement was made before the asserted
motive or influence to fabricate is a substantial factor
in determining relevance. It is not, however, absolutely
controlling. Where there are no factors other than the
alleged improper influence or motive influencing the
prior statement or its making, a post-motive statement
should ordinarily be excluded.
[Id. at 388.]
20 A-3631-17
Applying these principles in this case, we are convinced that the court
mistakenly exercised its discretion in admitting J.G.'s prior consistent statement.
We note that while a temporal requirement is not controlling, it "is a substantial
factor in determining relevance[,]" particularly where, as here, "there are no
factors other than the alleged improper . . . motive influencing" the making of
"the prior statement . . . ." Ibid. Based on the record, J.G.'s purported motive
to lie, namely, to return to his mother's home and avoid attending Adelante full
time in the summer which he would have been subjected to had he remained in
his father's home, was present at the time he made the prior statement. Indeed,
defendant admitted that he informed J.G. of the planned summer schedule to
which J.G. objected on June 7, 2014. J.G. reported the incident to his mother
the same day and to the police early the following morning.
Further, J.G.'s purported motivation to lie remained unchanged from the
date he reported the incident to the date he testified at trial. No evidence was
adduced, express or implied, of any differing or evolving motive to lie on the
part of J.G. between the initial report, the prior statement, and trial. The fact
that J.G. was removed from defendant's home by his mother when he reported
the incident does not impact that analysis. See King, 115 N.J. Super. at 146-47(admitting a witness's statement to police and grand jury testimony where
21 A-3631-17
defense counsel alluded to the witness's threat a week before trial that she would
lie at trial).
Critical to our decision is the fact that during cross-examination, defense
counsel carefully avoided using the prior statement in any manner to undermine
J.G.'s trial testimony. Counsel never pointed out that J.G. made no mention in
his prior statement of defendant reprimanding him about school on June 7, 2014,
and informing him about attending Adelante full time in the summer. See
Johnson, 235 N.J. Super. at 555 (admitting a witness's prior statement after
"defense counsel highlighted several inconsistencies in details between the prior
statement and [the witness's] trial testimony, thus creating the inference that [he]
had not been truthful at trial"). Given that the prior statement was made after
the asserted motive to fabricate, that there are no additional factors in the record
other than the alleged improper motive, and that defense counsel avoided cross-
examining J.G. on the prior statement, we are satisfied that the overall
circumstances militate in favor of exclusion.
However, our inquiry does not end there. We must next determine
whether the admission of the prior statement "constitute[d] prejudicial error."
Id. at 556. In that regard, we must determine whether the "evidence of guilt was
so strong that the statement was not necessary to establish defendant's guilt, nor
22 A-3631-17
was there any real possibility that the 'error led the jury to a result it otherwise
might not have reached.'" Id. at 556 (quoting State v. Macon, 57 N.J. 325, 336
(1971)).
"When a jury must choose which of two opposing versions to credit, it
simply cannot be said that the evidence is overwhelming." State v. Frost, 158
N.J. 76, 87 (1999). Here, the State's case rested entirely on the jury crediting
J.G.'s account over defendant's denials. J.G. was the only witness who
implicated defendant and was therefore the lynchpin of the State's case. Both
D.G. and to a lesser extent A.G. corroborated defendant's version. During
deliberations, the jury requested a playback of J.G.'s prior statement, not his trial
testimony.
Whether or not the incident occurred was "a pitched credibility battle"
between J.G. and defendant, which resolution would determine defendant's guilt
or innocence. State v. Frisby, 174 N.J. 583, 596 (2002). Thus, "[a]ny improper
influence on the jury that could have tipped the credibility scale was necessarily
harmful and warrants reversal." Ibid. Under the circumstances, we are
persuaded that the erroneous admission of the prior consistent statement tipped
the credibility scale, unfairly bolstered the State's proofs, and improperly
23 A-3631-17
influenced the jury. Accordingly, we are constrained to reverse defendant's
convictions on this ground.
Because we are satisfied that reversal is warranted, it is unnecessary for
us to address defendant's remaining points. We shall, however, briefly address
them for the sake of completeness.
We agree with defendant's contention raised in Point II that it was error to
admit an omission in A.G.'s prior inconsistent statement after the judge had
conducted a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), 12 and ruled
that the prior inconsistent statement was unreliable and inadmissible. After A.G.
testified that defendant was holding a Maglite rather than a gun on the day in
question, the State moved to admit A.G.'s prior inconsistent statement from the
August 24, 2016 competency hearing that had been conducted by a different
judge. In evaluating the admissibility of the statement, the judge reviewed both
A.G.'s August 24, 2016 testimony from the competency hearing and his June 19,
2014 statement elicited by Forensic Interview Specialist Nicole Ortiz.
12
See Gross, 121 N.J. at 17 (requiring a hearing and consideration of certain
factors to determine the admissibility and reliability of a prior inconsistent
statement of a trial witness); N.J.R.E. 803(a)(1) (providing for admission into
evidence of a prior inconsistent statement made "in circumstances establishing
its reliability").
24 A-3631-17
After reviewing both, the judge ruled that neither was admissible because
they were both unreliable. The judge noted that in the June 19, 2014 interview
conducted "nine days after th[e] event," A.G. was "all over the place, as to what
happened or didn't happen" and the interview was "very disjointed." However,
"someway or another, between June 19[], 2014 and August 24, 2016," A.G.
became "a much better reporter" with an improved "ability to relate th[e] facts."
The judge found the improvement "odd" and "totally inconsistent with [A.G.'s]
initial interview where he really couldn't relate anything about the event." The
judge was troubled by the inexplicable improvement in "[A.G.'s] memory . . . in
the intervening two years" and, after applying the Gross criteria, concluded that
neither statement was reliable or trustworthy. Notwithstanding this ruling, Ortiz
was permitted to testify that during the June 19, 2014 interview, A.G. never
mentioned seeing his father with a Maglite or a flashlight.
We agree with defendant that given the judge's ruling following the Gross
hearing, it was error to permit Ortiz' testimony regarding A.G.'s omission in the
June 19, 2014 interview. "'Impeachment by omission' is a recognized means of
challenging a witness's credibility." Manata v. Pereira, 436 N.J. Super. 330, 344
(App. Div. 2014). "A statement from which there has been omitted a material
assertion that would normally have been made and which is presently testified
25 A-3631-17
to may be considered a prior inconsistent statement." State v. Provet, 133 N.J.
Super. 432, 437 (App. Div. 1975). "Under appropriate circumstances, the prior
inconsistent omission can be offered solely to discredit, or also as substantive
evidence." Manata, 436 N.J. Super. at 344.
Here, A.G.'s omission was part and parcel of his prior inconsistent
statement that had been excluded by the judge as unreliable. Thus, its admission
was error. Individually, we conclude that the error was harmless, that is, it "was
'too insignificant to have had any bearing' on the trial . . . ." State v. Reid, 194
N.J. 386, 405-06 (2008) (quoting State v. Hunt, 91 N.J. 338, 350 (1982)).
However, we address the issue so that the error can be avoided in any retrial.
In Point III, defendant argues "the prosecutor committed two instances of
misconduct during summation" by telling the jury that the detective who
recorded J.G.'s prior statement "believed J.G.'s version of events" and by
accusing defendant "of tampering with [A.G.'s] testimony." Defendant asserts
the prosecutorial misconduct deprived him of a fair trial.
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." Frost, 158 N.J. at 82. "In other words, as long as the prosecutor
'stays within the evidence and the legitimate inferences therefrom,' [t]here is no
26 A-3631-17
error." State v. McNeil-Thomas, 238 N.J. 256, 275 (2019) (alteration in
original) (first quoting State v. R.B., 183 N.J. 308, 330 (2005); and then quoting
State v. Carter, 91 N.J. 86, 125 (1982)).
"Reversal is justified when the prosecutor does not abide by the above
strictures, and the conduct was 'so egregious as to deprive defendant of a fair
trial.'" State v. Echols, 199 N.J. 344, 360 (2009) (quoting State v. Wakefield,
190 N.J. 397, 437 (2007)). "In determining whether a prosecutor's comments
meet the 'so egregious' standard, a reviewing court must 'consider the tenor of
the trial and the responsiveness of counsel and the court to the improprieties
when they occurred.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575
(1999)). "Generally, if no objection was made to the improper remarks, the
remarks will not be deemed prejudicial. Failure to make a timely objection
indicates that defense counsel did not believe the remarks were prejudicial at the
time they were made." Timmendequas, 161 N.J. at 576 (citation omitted).
When there is no objection, on appeal, "defendant must demonstrate plain
error to prevail." Ibid. "Plain error is 'error possessing a clear capacity to bring
about an unjust result and which substantially prejudiced the defendant's
fundamental right to have the jury fairly evaluate the merits of his defense.'" Id.
at 576-77 (quoting State v. Irving, 114 N.J. 427, 444 (1989)).
27 A-3631-17
Here, defendant asserts that during summations, "the prosecutor bolstered
[J.G.'s] credibility by telling the jury that the detective who took [J.G.'s]
statement . . . believed that [J.G.] was telling the truth." According to defendant,
the prosecutor also "characterized [the detective] as a skilled juvenile
interviewer and an expert at ferreting out the truth, therefore implying that if
such a [d]etective found [J.G.] credible then the jury should do the same."
During summations, referring to Sergeant Boulieris' testimony, the
prosecutor stated:
[Sergeant] Boulieris is a very experienced detective. A
large part of his experience is dealing with juveniles.
He said he worked in the Juvenile Bureau for years. He
encountered juveniles in all different forms. . . . He saw
the whole gamut . . . and knows how juveniles work.
....
What was significant about . . . Sergeant
Boulieris is that he interacts with everybody, taking
statements from juveniles all the time. And he said he
put him under oath, and he said he believed his
allegations. . . . This is a guy, you're not going to get
anything over on him. He knows juveniles. . . . [H]e
believed the allegation. He sensed it.
[Emphasis added.]
Notably, during the recorded statement, Boulieris did not state that he
believed J.G. Likewise, during his testimony, Boulieris did not testify that he
28 A-3631-17
believed J.G. Indeed, such testimony would have been objectionable because
"the mere assessment of another witness's credibility is prohibited." Frisby, 174
N.J. at 594. "Although prosecutors may suggest legitimate inferences from the
record, they may not go beyond the facts before the jury." State v. Roach, 146
N.J. 208, 219 (1996). Stated differently, prosecutors may not "argue[] facts that
were unsupported by the evidence." Id. at 220.
While the prosecutor's remarks regarding Boulieris' expertise were fair
comment on the evidence, the remarks that Boulieris believed J.G.'s allegations
were impermissible. The prejudice was exacerbated by the fact that the remarks
were couched in terms of Boulieris' expertise in dealing with juveniles. See
State v. J.Q., 252 N.J. Super. 11, 40 (App. Div. 1991) ("There is simply no
scientific foundation for an expert's evaluation of the credibility of a witness or
for the conclusion that [an expert] has some particular ability to ferret out
truthful from deceitful testimony.").
We are mindful that defense counsel's summation forcefully attacked
J.G.'s credibility. See State v. Murray, 338 N.J. Super. 80, 88 (App. Div. 2001)
("[I]n reviewing a prosecutor's summation, we must consider the context in
which the challenged portions were made, including determining whether the
remarks were a measured response to defendant's summation made in an attempt
29 A-3631-17
to 'right the scale.'" (quoting State v. Engel, 249 N.J. Super. 336, 379 (App. Div.
1991))). Nonetheless, the prosecutor's response was inappropriate. Prosecutors
"may 'strike hard blows . . . [but not] foul ones.'" Echols, 199 N.J. at 359
(alteration in original) (quoting Wakefield, 190 N.J.at 436).
Because defense counsel did not object, "defendant must demonstrate
plain error to prevail." Timmendequas, 161 N.J. at 576. We are persuaded that
this error in conjunction with the erroneous admission of J.G.'s prior consistent
statement had "a clear capacity to bring about an unjust result" and "substantially
prejudiced the defendant's fundamental right to have the jury fairly evaluate the
merits of his defense." Id. at 576-77 (quoting Irving, 114 N.J. at 444). "We
need not decide whether, viewed in isolation, we would conclude that this error
alone required reversal of defendant's conviction[s]." State v. Jenewicz, 193
N.J. 440, 463-64 (2008). "Rather, we . . . assess the harm to defendant from this
error by considering it in the context of the other error[] in defendant's trial."
Id. at 464.
Defendant argues further that in summations, the prosecutor improperly
"accused defendant of manipulating and tampering with A.G.'s trial testimony"
as follows:
The next witness we heard from was [A.G.] I
think it was particularly shameful what happened with
30 A-3631-17
[A.G.] And I don't blame [A.G.] But [A.G.] said to
you it was a Maglite, my father didn't do anything
wrong. He just kind of blurted it out like that. I would
submit, ladies and gentlemen, that was coached. That's
not how a six-year-old is going to talk. It was
something that had been practiced. And he came in,
and he said it.
And I asked him, well, at some point before, you
thought it was a gun, right. And he said yes. But then
he had a realization at six years. And I . . . questioned
him a little bit more, how did that come about; well, it
came about when my father told me it was a Maglite,
that it wasn't a gun. That was a shameful thing, to
manipulate this child, in order to avoid responsibility
for your behavior.
And ladies and gentlemen, that is the only reason
why those counts are not for your consideration
anymore because that testimony was altered, it was
changed, it was coached.
Defense counsel objected to the comments, arguing "there was no
evidence of that adduced at trial." In overruling the objection, the judge
determined that it was "fair comment on . . . facts . . . in evidence." The judge
recounted the testimony that A.G. "thought it was a gun, and then received some
clarification from his dad." As a result of the clarification, A.G. said "it was not
a gun, it was a Maglite." The judge concluded that "[a] fair inference" from
those facts was that defendant "was trying to influence" A.G. to avoid
culpability. We agree.
31 A-3631-17
In any event, the judge instructed the jury that "summations of counsel are
not evidence, and must not be treated as evidence." Instead, the judge told the
jurors to "rely solely upon [their] understanding and recollection of the evidence
that was admitted during trial." "We presume that the jury followed the court's
specific admonitions . . . ," Timmendequas, 161 N.J. at 578, and find no evidence
that these comments substantially prejudiced defendant's right to a fair trial. 13
Reversed and remanded for a new trial.
13
The judge also instructed the jurors that counts two and five of the indictment
were dismissed, and they were not to consider them as "there was insufficient
evidence to . . . put th[ose] count[s] before" the jury.
32 A-3631-17