NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4734-05T4 A-004734-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SIDNEY ATKINS,

Defendant-Appellant.

______________________________________________

Submitted November 3, 2008 - Decided

Before Judges Carchman, R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0849.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith Balo, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

COLEMAN, R. B., J.A.D.

Tried before a jury, defendant Sidney Atkins was found guilty of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b (count two); and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a) (count three). At sentencing, the court found that aggravating factors two, three, six, and nine, N.J.S.A. 2C:44-1a(2),(3),(6) and (9), outweighed the non-existing mitigating factors, and the court imposed an aggregate term of nineteen years in State Prison, subject to the No Early Release Act (NERA) requirement that eighty-five percent of the sentence is to be served without eligibility for parole, N.J.S.A. 2C:43-7.2. Additionally, defendant was ordered to register upon his release in compliance with Megan's Law. The court merged counts two and three into count one for sentencing purposes.

After carefully reviewing the record in light of the contentions advanced on appeal, we conclude that reversible error occurred with respect to rulings concerning defendant's investigator, who was ordered to produce the notes of her interview with S.M., and whom the State was permitted to utilize as a rebuttal witness. Consequently, we remand for a new trial.

The proofs at trial reveal that in March 2004, defendant's aunt, E.F., was the matriarch of a large extended family. She lived in a single-family home in Union County with her two foster children, S.M., a six-year-old female, and T.M., a four- year-old male. E.F.'s home has served as a central hub and refuge for various family members who have lived there for varying periods of time. Also residing with E.F. in 2004 was her niece, W.M., and W.M.'s three children. Defendant, known to the family as "Junior," had lived with E.F. on and off over many years, but he had, by 2004, established a separate residence. He was, however, a regular visitor at E.F.'s house, and he helped with household chores, such as child care and maintenance.

In the early evening on March 10, 2004, E.F. received a telephone call from her daughter, R.W., informing her of an emergency concerning a relative who was a resident of the nursing home where R.W. was employed. E.F. asked her niece, W.M., to watch the children while she went to the nursing home. While the five children watched television in S.M.'s room, W.M. watched television in T.M.'s room, with the door kept ajar so she could hear the children. Shortly after E.F. left the house, defendant arrived. W.M. greeted defendant downstairs and told him of E.F.'s whereabouts. She then returned to watching television upstairs. At one point she saw defendant exiting the attic and at another point she asked him to fix a curtain in S.M.'s room. Defendant also left the home sometime during the evening to buy candy for the children. By the time E.F. returned home around 8:30 p.m., defendant had left the house again.

Upon her return, E.F. sent her two foster children upstairs to bathe while she made them dinner. From the bathtub, S.M. called out to E.F. and told her that her "pee-pee" was burning. E.F. wrapped S.M. in a towel, sat her on her bed and questioned the girl to determine why her private parts were burning. E.F. then examined S.M.'s genitals and observed that there was redness inside of her vagina. While E.F. was questioning and examining S.M., E.F. heard someone pacing in the hallway outside her bedroom door. W.M. testified that defendant, who had returned to the house, was the person pacing and he seemed "nervous." E.F. then instructed S.M. to go downstairs and eat dinner with her brother.

After her two foster children had finished eating, E.F. took S.M. back upstairs and resumed her questioning. At this point, S.M. told E.F. that "Junior did it." S.M. demonstrated what she meant by moving her hips back and forth in a humping motion. E.F. then awakened W.M. and began calling relatives at approximately 1:30 a.m. W.M. testified that she, too, examined S.M.'s genitals and that the child's vagina looked red, irritated and discolored. E.F.'s granddaughter, O.A., arrived at the house after having spoken to E.F. on the telephone. E.F. showed O.A. the panties S.M. had been wearing before her bath; they had "brightish looking stains" on them. O.A. also examined S.M.'s vagina and testified that it appeared red and did not look normal. When asked, S.M. told both W.M. and O.A. that "Junior did it," and demonstrated with her hips a bouncing up-and-down motion.

S.M. told E.F. the following events occurred: she was sitting on her bed watching television while the other children were downstairs watching television in the living room. W.M. was watching television in T.M.'s room. Defendant came into S.M.'s room, closed her door, and sat on her bed. Defendant took S.M.'s clothes off. He then got on top of S.M. and put his "weenie" in her "pee-pee," moving it all around (back and forth). S.M. told defendant to stop, but he kept going. Defendant also put his hands in her pee-pee. He did not make any noises. S.M. did not yell.

On O.A.'s advice, E.F. called the police. When the police arrived, they confiscated the bed linens and two pairs of panties belonging to S.M. These items were later sent to the State Police Laboratory for forensic testing. The panties that S.M. had been wearing before her bath revealed evidence of human blood and amylase, a bodily fluid; however, the only DNA chemically detected was female and it matched S.M.'s control sample.

The police transported E.F. and S.M. to the hospital for a medical examination of S.M. At approximately 3:26 a.m., Dr. Euton Laing examined S.M., found redness on her inner thighs, but made no other conclusive findings. Around 5:00 a.m., E.F. and S.M. were taken to the Child Advocacy Center, a division of the Union County Prosecutor's Office. There, they met with Detective Joseph Genna, who conducted a videotaped interview of S.M. and took a sworn statement from E.F. Genna also photographed bruises on S.M.'s thighs.

E.F. and S.M. were next taken to the Dorothy B. Hersh Regional Child Protection Center where S.M. was examined by Dr. Linda Shaw. Dr. Shaw found a discolored area on S.M.'s hymen that was lighter in color and she concluded it was possibly caused by some sort of recent trauma, and may have been the sight of bleeding twelve to twenty-four hours earlier. Dr. Shaw observed no bruising or lacerations on S.M., but did determine that S.M.'s physical condition could be consistent with S.M.'s account of the alleged sexual abuse.

Meanwhile, defendant returned to E.F.'s home the next morning, March 11, 2004, and W.M. refused to let him in. She told defendant that E.F. had taken S.M. to the hospital because of what he had done to her. Defendant was very upset by this accusation.

Later that day, around 6:00 p.m., Sergeant Larry Brown, Jr. accompanied by three officers from his unit, two investigators from the prosecutor's office, and two other uniformed police officers, went to defendant's apartment with a warrant for defendant's arrest. Defendant would not answer his door, so the officers kicked it in. Defendant tried to flee and then offered resistance before being tackled. He was taken to police headquarters and processed.

Later that same day, March 11, 2004, S.M. told E.F. and R.W. that defendant had not abused her. R.W. reported this to the prosecutor's office. When Sergeant Genna of the prosecutor's office questioned S.M. about her recantation, S.M. said that she had lied to E.F. and R.W. and that her original story of what happened was true. On May 26, 2004, S.M. also told Autumn Gerena, an investigator at the defense attorney's office, that her recantation had been a lie and that her original account of the abuse was the truth. The matter proceeded to trial in early August 2005, and the jury found defendant guilty of the offenses charged.

On appeal, defendant raises the following arguments:

POINT I

THE PROSECUTOR'S COMMENTS IN HER OPENING AND SUMMATION WENT SO FAR BEYOND THE BOUNDS OF FAIRNESS AND PROPRIETY THAT DEFENDANT WAS THEREBY DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).

POINT II

THE COURT ERRED IN ITS RULING REQUIRING THE DEFENSE TO TURN OVER AS DISCOVERY THE DEFENSE INVESTIGATOR'S NOTES OF HER PRIOR INTERVIEW WITH [S.M.], AND DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT.

POINT III

THE PROSECUTOR COMPOUNDED THE ERROR OF INTRODUCING THE DEFENSE INVESTIGATOR'S TESTIMONY BY ASKING HER ON REDIRECT EXAMINATION WHY SHE HAD NOT WRITTEN A REPORT REGARDING HER INTERVIEW.

POINT IV

THE TRIAL WAS IRREPARABLY TAINTED WHEN THE PROSECUTOR, HAVING BEEN EXPLICITLY WARNED BY THE COURT THAT GERENA'S TESTIMONY WAS ADMITTED ONLY FOR THE PURPOSE OF NEUTRALIZATION, NONETHELESS REFERRED TO IT TWICE IN HER SUMMATION AS IF IT WERE SUBSTANTIVE EVIDENCE. (Not Raised Below).

POINT V

THE 19-YEAR NO EARLY RELEASE ACT SENTENCE IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES. THE SENTENCE SHOULD BE VACATED AND A 15-YEAR TERM IMPOSED IN ITS STEAD.

While we find no merit to defendant's arguments in Points I and V, we agree that the errors alleged in Points II, III and IV had the capacity, in combination, to affect the outcome of the trial and to deprive defendant of a fair trial.

Defendant alleges prosecutorial misconduct in the prosecutor's remarks during the opening and summation. Specifically, defendant contends that the prosecutor used inflammatory and highly emotional remarks in her opening statements such as:

Now, seven year old [S.M.], who is entering the second grade, will have to come in here and do what no child should ever have to do. She will have to sit up in that witness box and tell you herself the things that Junior did to her.

. . .

What this case is about simply is how Sidney Atkins molested six year old [S.M.] in her bedroom . . . [i]t is about how he stole her innocence. Please do not lose sight of that.

Defendant contends the prosecutor interjected in her summation, her own opinion, in the capacity of an expert witness, regarding the lack of defendant's DNA on the victim as follows:

[S.M.] herself told you nothing came out of his pee-pee. There would be no DNA if nothing came out of his pee-pee, first of all. The second thing we need to pay attention to is what I mentioned in my opening. The first thing we tell a woman not to do when she is raped is shower. Don't wash because the evidence will be washed away. Where is [S.M.] when she discloses this to [E.F.] when this happened? She's in the bathtub.

In reviewing the record for misconduct, "an appellate court 'must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). A prosecutor is given "considerable leeway in summing up the State's case." State v. Williams, 113 N.J. 393, 447 (1988). Prosecutors may use remarks in their summation that graphically