State v. R.T. , 411 N.J. Super. 35 ( 2009 )

The opinion of the court was delivered by

AXELRAD, P.J.A.D.

Defendant was convicted, after a trial, of multiple counts of first-degree aggravated sexual assault and one count of second-degree endangering the welfare of a minor. In this appeal we consider primarily whether defendant’s right to a fair trial was prejudiced by the court charging the jury with intoxication as possibly negating an element of the crime, over defendant’s objection. Finding error, we reverse and remand for a new trial.

The jury heard testimony that defendant is the uncle of L.T. and that he gained custody from L.T.’s mother in 1998, when the boy was four years old. In 2004, ten-year-old L.T. disclosed defendant’s recurring sexual abuse of him over the preceding six years.

L.T. testified that beginning when he was between four and five years old, defendant sexually assaulted him by either probing him digitally or by inserting his penis into L.T.’s anus. According to L.T., defendant would frequently give him “Nyquil and pills” even when L.T. was not sick, to get L.T. to fall asleep quickly. When L.T. would refuse to take the medicine, defendant would threaten to beat him and, in fact, did beat him for refusing on several occasions. After L.T. fell asleep, defendant would penetrate L.T. anally, which L.T. would sometimes witness upon waking up, but he more often experienced through the pain he felt the next morning as well as through his inability to walk or go to the bathroom. L.T. did not report the incidents to anyone while they were occurring because defendant had threatened to kill him if he ever told anyone.

L.T. returned to his mother’s home in May 2003. In 2004, L.T. attempted to anally penetrate his younger brother. When asked on May 30, 2004 why he had done that, L.T. informed his mother that defendant had been “sexually touching [him] for the past seven to eight years.” His mother reported this information to the police and the Division of Youth and Family Services (DYFS).

That same day, Investigator Asha Richards of the Camden County Prosecutor’s Child Abuse Unit conducted a videotaped interview of L.T., wherein he related how he was drugged and sexually abused by defendant. The first reference to alcohol occurred in the following colloquy, in the context of the investigator’s follow-up question to L.T., who had explained that he did not previously report the abuse to his mother because he was frightened of his uncle:

Q. Okay what makes you think he would hurt you?

A. Because he drinks a lot of beer and he just sometimes hit me for no reason sometimes.

L.T. also commented that defendant would threaten to punch or kill people “when he’s drunk” and it would embarrass L.T. when they were “at parties [and defendant] would drink a lot of beer and he would say that to his friends.”

On June 2, 2004, defendant appeared at the Camden County Prosecutor’s Office and after waiving his Miranda¹ rights in writing, was interviewed by Investigator John Hunsinger and Sergeant Aida Marcial. Defendant denied the allegations against him. Defendant then agreed to submit to a computer voice stress analyzer (CVSA). Defendant was informed that the test indicated his answers to the questions of whether he had digitally and anally penetrated L.T. were deceptive.

According to Inv. Hunsinger, defendant again denied the allegations and then went on to say that “he’s got a drinking problem” and “if he had done these things it would have occurred when he was drinking”; “if [L.T.] said it was [true,] if it happened then it probably happened”; and “[i]f it happened it would happen at nighttime because that’s when ... he would be drinking.”

Defendant then consented to an audiotaped statement and after again waiving his Miranda rights, answered a variety of questions from Inv. Hunsinger and Sgt. Marcial, including the following:²

Q. [W]e’re talking about some allegations that [L.T.] had made against you is that correct?

A. Yes.

Q. In your own words tell us about these allegations?

A. I’m suppose to had um had sex um, sexual intercourse with [L.T.] I was touching his behind and private parts and results of me probably drunk, of me drinking and things that I’m very sorry for this happening and I think that is a very sick thing to do. And that a person like me would need counseling, I maybe need counseling to do something like this.

Q. You feel as though you drinking problem?

A. Yes I do.

Q. How long have you been drinking?

A. I’ve been drinking for approximately 15 to 20 years.

Q. How often would you drink?

A. Oh, um often, I drink beers, cans of beers and also I drink between 4 to 8 beers a day.

Q. And is that usually during the day or at night time?

A. Toward the evening, like mid day toward the evening.

Q. Would you considered yourself to get drunk or a nice buzz?

A. Well I think it be a buzz but at times it must be [half] way drunk to sometime to that of that of that I’m (inaudible) got drunk.

Q. Um, you indicated that you had ah sexual intercourse with [L.T.]?

A. I might have had sexual intercourse with him, yeah. I really can’t remember so I might have been very intoxicated at the time.

Q. What leads you to believe that may have had sexual intercourse with [L.T.], if you can’t remember?

A. Cause it’s going to be a possibility of me doing that but like I said but being drunk remember but if he recalls then I must did.

Q. You know how many times this happened, or may have happened?

A. I can not recall at this moment.

Q. Do you ever, have you helped [L.T.] go to bathroom at night?

A. Many times.

Q. And how would you help him?

A. That. Ah how would I help him, I would um take, walk him to the bathroom and pull his um pajamas down and (inaudible) put his hands and my hand may touch his penis to make sure it aim to the toilet [bowl],

Q. Would these be nights when your intoxicated?

A. Yes.

Q. Um at any time do you recall when you were in the bathroom with him and he had his pants down do you recall either inserting your penis into his butt or finger?

A. I don’t recall that.

Q. Possible that it may have happened?

A. Very possible, yes.

Q. Why do you say very possible?

A. I was drinking and something sick like that happened so, yeah I feel it very possible (inaudible).

Q. Ok, do you think in your recollection that these things happened at night or during the day?

A. At night.

Q. And why would that be?

A. While I’m drinking.

Q. But then you keep saying you don’t recall but you already it’s a possibility that you did it. Are you saying you can’t recall as an excuse?

A. No I’m not. I’m saying I can’t recall because I don’t remember it but the possibility if I was drinking it could’ve happened.

A. ... I have no recognition of it[.] I still believe that it’s false but since everything still coming up saying I did so I guess I did it but I am truly, truly sorry from the bottom of my heart.

Q. Hold on for a minute. Ok. Ok people do not admit to things that they do not do. Now earlier you said that there’s a possibility that you could’ve done this because you were drunk.

A. (Inaudible)

Q. Ok explain yourself.

A. I’m, I’m soriy for what I have done to [L.T.] the touching of his buttock and fingers being on his buttock and I’m sorry for doing it. I, I, I still can’t picture myself doing it but I must have did and I apologize for doing it.

Q. Ok alright, alright. And, and inserting your penis in his, in his butt is that what you’re explaining?

A. I don’t remember doing that but if I did, yes I’m soriy that too.

Defendant also indicated that the last time he may have molested L.T. was in June 2003, and that it may have happened “several times.” Defendant was then arrested.

Defendant was indicted and charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one and two); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (counts three and four); and one count of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a (count five).

The court denied defendant’s motion to suppress his statements to the police. The court also entered an order granting the State’s motion to use the videotaped statement of L.T. recorded the previous year when L.T. was ten years old, pursuant to N.J.R.E. 803(c)(27). Among other discovery orders, the court denied defendant’s motion for the release of L.T.’s prescription records and granted the State’s motion to exclude DYFS records relating to L.T.’s mother.

Defendant testified on his own behalf. He denied giving L.T. Nyquil and vehemently denied committing the offenses against the child. Defendant testified that during the pre-interview with the police, which was not recorded³, he denied the charges, during which the suggestion of alcohol use was first raised by Inv. Hunsinger. Defendant explained that because he was scared and felt threatened, he simply repeated what the officers said to him and thus he was pressured into stating he committed the acts while intoxicated, even though he did not commit any of the sexual offenses and was not drunk at the time.

As an example, defendant provided the following description of what occurred with the investigators prior to the audiotaping:

A. When I went in there [Inv. Hunsinger] told me the allegations and he read some of [L.T.’s] statements to me and I couldn’t believe to hear this. So he seen how I got really excited, you know, couldn’t believe this. And so the way he was talking to me, telling me that this is happening....

He sat up there and told me why would I do something like this to a child? He told me a child wouldn’t lie, just making this up. I told him what happened probably ... his mother is making him do this. He’s telling me it’s not so. He’s telling me reading everything that the child said and tell me I was wrong. Say that you did this, you know. This is what you did. Just, come on let’s get this over with.

A. I just really couldn’t believe they would say this to me. I would never do nothing like that to a child, a boy, especially my own nephew. I kept telling them how I love kids. I love him. I want everything for him, the best. I would never do nothing like that. He said, come on, tell the truth. Tell the truth. You did this. Let’s get this over with. You did it. He ... threatened me about the years I’m going to prison. You have to prove it to the jury. You have to prove it to the jury.

[Defense]: Now, who raised the possibility of your drinking to mean that it might have happened? When did that issue first come up?

A. It happened from Lt. Hunsinger ... before he start[ed] taping. He kept telling me that I was drunk.

[Prosecutor]: You brought up the notion of you being drunk because you needed an excuse, right?

A. No.

Defendant also stated that on numerous occasions during the course of the taping, he kept repeating what Inv. Hunsinger told him. For example:

[Defense]: And during the course of the taping, how did that go in terms of what the investigators were saying to you or doing to you?

A. They just had me so scared. I never been in this type of position before. And the way ... they was talking to me and have me thinking I was drinking. I was drunk, which didn’t take place. And so they just had me so I just was like saying what they told me.

[Prosecutor]: So when asked if you had placed your penis or your fingers in [L.T.’s] behind, you answeifed] probably several times.

A. Ma’am, I was scared. The way the man was threatening me about the years in prison and I was just basically repeating basically what he was saying to me.

In summation, the defense took the position that defendant did not commit the offenses and focused primarily on seeking to impugn the credibility of L.T. and his mother, including noting inconsistencies in the child’s testimony and her conviction for child endangerment. Counsel also commented generally on the problems inherent in the police interrogation that was only partially audiotaped and noted Hunsinger’s suggestion to defendant that he was drunk. An intoxication defense was not asserted explicitly or implicitly.

At the conclusion of the trial on April 13, 2006, defendant was found guilty on all counts. He was later sentenced to an aggregate twenty-five year prison term, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals, raising the following arguments through counsel:

POINT i

THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT’S STATEMENT TO THE POLICE BECAUSE CONFRONTING DEFENDANT WITH THE UNRELIABLE “COMPUTERIZED VOICE STRESS ANALYZER” DEPRIVED SUBSEQUENT STATEMENTS OF THEIR VOLUNTARINESS. POINT II

PERMITTING THE JURY TO HEAR THE VIDEOTAPED INTERVIEW OF THE CHILD, THE “FRESH COMPLAINT” RELAYED BY THE MOTHER, AND TESTIMONY FROM THE CHILD’S PHYSICIAN AS WELL—AND THEN PERMITTING THE JURY TO TAKE THE VIDEO TAPE WITH THEM INTO THE DELIBERATION ROOM—EXCEEDED N.J.R.E. 803(C)(27) AND VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT III

THE TRIAL COURT ERRED IN CHARGING INTOXICATION OVER DEFENDANT’S OBJECTION.

POINT IV

THE TRIAL COURT ERRED BY DENYING DEFENDANT AND HIS COUNSEL ACCESS TO ALL THE DYFS RECORDS REGARDING L.T.’S MOTHER AND THE CHILD’S PHARMACEUTICAL RECORDS.

POINT V

THE PROSECUTOR’S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.

POINT VI

DEFENDANT’S SENTENCE IS IMPROPER AND EXCESSIVE.

Defendant asserts the following arguments in a pro se brief:

POINT i

Defendant was denied effective counsel due to counsel’s failure to allow or put defendant[’]s witnesses on [the] stand, to testify for the defendant, and when counsel refused to obtain lab reports, as well [as] failing to present mitigating factors during sentencing.

POINT II

Defendant was denied a fair hearing due to prosecutorial misconduct.

POINT III

The defendant’s] sentence is illegal and unconstitutional^]

POINT IV

Defendant's sentence must be set aside due to police using trickery and co[e]r[c]ive means to obtain a confession, and making a witness out of the defendant, thereby making defendant a witness against him self.

I.

We discern no error in the trial court’s conclusion that the State met its burden of demonstrating that defendant’s statement was freely and voluntarily given after a knowing and intelligent waiver of his Miranda rights, and that presentation of the CVSA result neither rendered the subsequent statement involuntary nor equated with the creation of or confrontation with false evidence. Accordingly, defendant’s motion to suppress was properly denied. The totality of the circumstances surrounding defendant’s statement demonstrates beyond a reasonable doubt that defendant’s will was not overborne. See State v. Galloway, 133 N.J. 631, 654, 628 A.2d 735 (1993). Moreover, the specific use of the voice stress analyzer to point out to defendant that it appeared he was not being entirely candid in his denial of the allegations, does not rise to the level of trickery by resorting to fabricated evidence of the type that we disapproved in State v. Patton, 362 N.J.Super. 16, 31-49, 826 A.2d 783 (App.Div.), certif. denied, 178 N.J. 35, 834 A.2d 408 (2003), even though a CVSA is not always reliable and is inadmissible at trial.

II.

Appropriate and proper jury charges are essential to a fair trial. State v. Savage, 172 N.J. 374, 387, 799 A.2d 477 (2002). The most critical part of any jury instruction is an explanation of the applicable law, which, in a criminal trial, includes “an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State’s burden of proving the defendant’s guilt beyond a reasonable doubt.” State v. Walker, 322 N.J.Super. 535, 546, 731 A.2d 545 (App.Div.), certif. denied, 162 N.J. 487, 744 A.2d 1209 (1999). As the charge constitutes “a road map to guide the jury, ... without an appropriate charge a jury can take a wrong turn in its deliberations.” State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990).

Voluntary intoxication is a defense to a purposeful or knowing crime, including those offenses with which defendant was charged. N.J.S.A. 2C:2-8a; State v. Mauricio, 117 N.J. 402, 418, 568 A.2d 879 (1990); State v. Cameron, 104 N.J. 42, 52-53, 514 A.2d 1302 (1986). “The question to be decided by the trial judge, faced with a decision as to whether an instruction should be given the jury on the effect of voluntary intoxication, is not whether in fact defendant was intoxicated, but whether a reasonable juror might so find.” State v. Polk, 164 N.J.Super. 457, 462, 397 A.2d 330 (App.Div.1977) (citing State v. Frankland, 51 N.J. 221, 238 A.2d 680 (1968)). “A jury issue arises only if there exists a rational basis for the conclusion that defendant’s ‘faculties’ were so ‘prostrated’ that he or she was incapable of forming an intent to commit the crime.” State v. Mauricio, supra, 117 N.J. at 418-19, 568 A.2d 879; accord, State v. Cameron, supra, 104 N.J. at 54, 514 A.2d 1302. As our Supreme Court stated:

[I]t is not the ease that every defendant who has had a few drinks may successfully urge the defense. The mere intake of even large quantities of alcohol will not suffice. Moreover, the defense cannot be established solely by showing that the defendant might not have committed the offense had he been sober. See Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, Commentary (1971) at 68. What is required is a showing of such a great prostration of the faculties that the requisite mental state was totally lacking. That is, to successfully invoke the defense, an accused must show that he was so intoxicated that he did not have the intent to commit an offense. Such a state of affairs will likely exist in very few cases.

[State v. Cameron, supra, 104 N.J. at 54, 514 A.2d 1302 (quoting State v. Stasio, 78 N.J. 467, 495, 396 A.2d 1129 (1979) (Pashman, J., concurring and dissenting)).]

Recognizing that intoxication must be of “an extremely high level” in order to qualify as a defense, the Court in Cameron articulated the following factors relevant to the issue:

the quantity of intoxicant consumed, the period of time involved, the actor’s conduct as perceived by others (what he said, how he said it, how' he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor’s ability to recall significant events.

[Id. at 54, 56, 514 A.2d 1302.]

Thus, for example, the victim’s testimony that defendant was drunk and the defendant’s statement that she felt “pretty intoxicated,” “pretty bad,” and “very intoxicated,” were considered by the Court to be “no more than conelusory labels, of little assistance in determining whether any drinking problem produced a prostration of faculties.” Id. at 56, 514 A.2d 1302. In concluding the trial court correctly refused defendant’s request to charge intoxication, because the evidence was insufficient to justify submission of the intoxication issue to the jury, the Court considered the following evidence and conducted the following analysis:

Ordinarily, of course, the question of whether a defendant’s asserted intoxication satisfies the standards enunciated in this opinion should be resolved by a jury. But here, viewing the evidence and the legitimate inferences to be drawn therefrom in the light most favorable to defendant, the best that can be made of the proof of intoxication is that defendant may have been extremely agitated and distraught. It may even be that a fact-finder could conclude that her powers of rational thought and deductive reasoning had been affected. But there is no suggestion in the evidence that defendant’s faculties were so prostrated by her consumption of something less than a pint of wine as to render her incapable of purposeful or knowing conduct. The trial court correctly refused defendant’s request.

[Id. at 57, 514 A.2d 1302.]⁴

Furthermore, a charge to which a defendant objects should be given “only where the facts in evidence ‘clearly indicate’ the appropriateness of that charge.” State v. Savage, supra, 172 N.J. at 397, 799 A.2d 477 (citing State v. Choice, 98 N.J. 295, 298, 486 A.2d 833 (1985)).

Here, during the charge conference the court discussed the possibility of charging the jury with intoxication, noting that defendant’s statement at the prosecutor’s office included a claim that he was intoxicated during the sexual assaults, which could potentially negate “the knowing aspect of the charges.” Defense counsel vehemently opposed this instruction being given. He informed the court that he had consulted with defendant, reviewed the jury instruction with him, and defendant did not want that charge to be given to the jury. Defense counsel took the position that intoxication was not a defense in the case and, when asked to elaborate, stated that his client testified that he did not commit the acts but the police cajoled him into stating he committed the acts while intoxicated. Defense counsel explained that his strategy hinged on a denial of the charges and painting them as incredulous and the result of unfounded allegations by L.T. and his mother, not on establishing a mental excuse.⁵ He implored the court that “putting that [intoxication] defense out there ... really flies in the face of the way we presented the case in terms of ... my client’s testimony during the course of his Direct examination and Cross-examination of the other witnesses as well who investigated him and interrogated him on that issue.” Moreover, it “works a prejudice against [defendant’s] case.” The State, after initially objecting, indicated it wished the court to give the charge.

The court charged intoxication over defendant’s objection, reasoning:

I believe that the charge is appropriate and I think a reasonable jury hearing that charge could find that intoxication negates an element of the offense. And I think intoxication is a part of this case.

Especially, given the statements that were made by [defendant] during the Miranda Hearing, which I read those statements into the record from the transcript that dealt with his using an intoxicant, that is beer, over a period of time and the amount of beer that was consumed by him.

So, I think a reasonable jury could find that that charge should, in fact, be given based on the evidence that has been presented in this case.

There is just an abundance of information regarding alcohol. Again, as the prosecutor has indicated in the statement of—the taped statement of the victim in this case along with more importantly the statement that the defendant made, his own statement he made while he was being questioned by the authorities.

So, I believe that there is certainly—I believe it would be error not to include the intoxication charge. And I believe even if both the State and the defense objected to the charge, I think sua sponte that the Court has a responsibility in the interest of justice to read that charge—to charge the jury with regard to that particular charge.

There is ample information contained in the record that would justify the Court doing it.

It is evident from the record that the trial judge gave a great deal of thought to the intoxication charge and sincerely believed under the facts of the case it would be error not to sua sponte give the instruction, despite defendant’s objection. Nevertheless, we are in agreement with defendant that the court’s charging the jury on intoxication warrants reversal and remand of this case.

The facts of the present case do not clearly indicate a rational basis for the conclusion that defendant suffered from such a “prostration of faculties” as to render him incapable of forming the requisite mental state to commit the crimes. See, e.g., State v. Savage, supra, 172 N.J. at 397, 799 A.2d 477; State v. Mauricio, supra, 117 N.J. at 418-19, 568 A.2d 879. Defendant was charged with conduct occurring on diverse dates from July 15, 1997 through June 30, 2003. Here, there were just vague references to drinking contained in defendant’s statement to the police and L.T.’s statement to the investigator, i.e., “conclusory labels, of little assistance in determining whether any drinking produced a prostration of faculties.” State v. Mauricio, supra, 117 N.J. at 419, 568 A.2d 879 (quoting State v. Cameron, supra, 104 N.J. at 56, 514 A.2d 1302). Considering the Cameron factors, during the requisite time frame there was no evidence of defendant’s blood-alcohol level, the amount of alcohol he had consumed or over what period of time he had been drinking, or that he smelled of alcohol or had any other physical manifestations of intoxication. It is not even suggested that defendant had imbibed large quantities of alcohol. All the record contained were defendant’s generalized statements to the officers that he had a longstanding drinking problem, often drank four to eight beers a day from mid-day through the evening, and would get from a “buzz” to “drunk.” Moreover, defendant’s only proof as to his inability to recall significant events and the correlation of the offense and his intoxication were his statements that there was a possibility he could have committed the offenses because he was drunk but could not remember so he must have been intoxicated at the time, interspersed with a denial of the events. Furthermore, L.T. merely corroborated that defendant drank a lot of beer and got drunk at parties. This evidence would be entirely insufficient to establish the extremely high level of intoxication required by the Court to qualify as a defense as well as to create a jury question on defendant’s intoxication. See State v. Mauricio, supra, 117 N.J. at 419, 568 A.2d 879 (citing cases in which evidence of intoxication was deemed sufficient to present a jury question)⁶; State v. Cameron, supra, 104 N.J. at 54-57, 514 A.2d 1302 (same)⁷.

Not only did the facts not clearly indicate the appropriateness of the intoxication charge, but the instruction impermissibly interfered with defendant’s chosen trial strategy as clearly articulated to the court during the charge conference. Our courts have expressed a general need to refrain from interfering with defense counsel’s strategy.

In State v. Perry, 124 N.J. 128, 163, 590 A.2d 624 (1991), the defendant’s counsel chose to argue that his client, who was charged with murder, was not present and had not participated in the death of the victim. The Court held that even if the trial court might have been required to grant the defendant’s request for a self-defense charge had the request been made, “in the face of non-compatible defense strategy” of not requesting such a charge, the trial court did not commit plain error in not charging self-defense sua sponte. Id. at 162, 590 A.2d 624. The Court explained:

Trial courts must carefully refrain from preempting defense counsel’s strategic and tactical decisions and possibly prejudicing defendant’s chance of acquittal. The public interest, while important, may not overwhelm defendant’s interest in pursuing a legitimate defense in the complex setting of a criminal trial____

Hence, despite the arguable appropriateness of the self-defense charge, such a charge would have been directly contrary to defendant’s position at trial, could have prejudiced his chances of being acquitted of knowing murder by emphasizing his presence at the murder scene, and would have forced counsel to have foresaken or altered his chosen strategy. In a close case, forcing counsel to incorporate defenses that pre-suppose the existence of the very fact his main method of defense contests destroys the credibility and coherence of the defense entirely. Our analysis of the duties of a trial judge must be “seasoned by a degree of deference to defense counsel’s strategic decisions.”

[Id. at 162-63, 590 A.2d 624 (internal citations omitted).]

We followed the same rationale in State v. Vasquez, 265 N.J.Super. 528, 628 A.2d 346 (App.Div.), certif. denied, 134 N.J. 480, 634 A.2d 527 (1993). The defendant appealed his conviction for the murder of his girlfriend, asserting as plain error the court’s failure to sua sponte instruct the jury on self-defense. Id. at 547, 628 A.2d 346. We affirmed, reasoning that although the testimony may have established evidence supporting a theory of self-defense, the trial court would have prejudiced the defense counsel’s strategy had it instructed the jury sua sponte. Id. at 548-50, 628 A.2d 346. Because the defendant denied in his trial testimony playing any part in the victim’s murder and, in fact, rested his case on the theory that defendant’s friend had killed the victim, we determined that any charge of self-defense could have implied that the court believed the defendant and the victim had engaged in a struggle, although the defendant had explained his injuries at the time of the arrest as attributable to other causes. Id. at 550, 628 A.2d 346. We stated:

The trial court’s failure to charge self-defense sua sponte did not amount to plain error. Defense counsel chose a strategy which the trial court appropriately decided not to interfere with. Any charge on self-defense would have prejudiced defendant and increased the likelihood of the murder conviction____

[Ibid.]

Defendant’s trial strategy here rested on the theory that he did not commit the assault but, rather, he was cajoled by the police during his interview into stating he was intoxicated. As hypothesized in Perry and Vasquez, advising the jury of the possibility of the intoxication defense may have implied that defendant actually committed the acts though he had been drinking at the time, which defendant disputed. As such, charging intoxication over defendant’s objection may have had the severe impact of prejudicing defendant’s ability to defend the State’s charges in the manner he and his counsel saw fit and thus impaired his right to a fair trial.

III.

In view of our remand for retrial, we need not address defendant’s evidentiary challenges raised in Points II, IV, or V, the challenge to his sentence in Part VI, or the arguments raised in his pro se brief. With respect to defendant’s challenge to the jurors taking L.T.’s videotaped interview with them into the deliberation room contained in Point II, we note that subsequent to trial the Supreme Court decided State v. Burr, 195 N.J. 119, 134-35, 948 A.2d 627 (2008), which provides for a prospective special treatment of child victims’ videotaped pretrial testimony requiring that playbacks or read backs occur in open court rather than in the jury room.

Reversed and remanded for a new trial.

1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 Copied verbatim from the transcribed audiotaped statement.

3 It is not disputed by the State that the police conducted a pre-interrogation and pre-taping interview of defendant.

4 State v. Cameron also cites the following cases holding that the evidence was insufficient to warrant a jury charge on intoxication: State v. Selby, 183 N.J.Super. 273, 276, 443 A.2d 1076 (App.Div.1981) (defendant shared with three others a marijuana pipe for about ten minutes, as a result of which he was "high” and felt "pretty good”); State v. Moore, 178 N.J.Super. 417, 424, 429 A.2d 397 (App.Div.1981) (200-pound defendant shared half of a pint of vodka with her co-defendant, then "had to ... get another drink to get [her] nerves back up” before joining in the crime, as to the events preceding, during, and following which she had almost total recall); State v. Kinlaw, 150 N.J.Super. 70, 72, 374 A.2d 1233 (App.Div.1977) (on the day of the crime defendant drank beer between 11 a.m. and 2 p.m. and described himself as "drunk”); and State v. Ghaul, 132 N.J.Super. 438, 441, 334 A.2d 65 (App.Div.1975) (defendant testified he had been "drinking all day,” police officer detected odor of alcohol on defendant's breath and thought his driving was impaired, but defendant's own testimony indicated he could think clearly at the time the crime was committed as he could describe the pertinent events, and he had "sufficient presence of mind to take over the driving and to lie to the police ...”). Id. at 55-56, 514 A.2d 1302.

5 Defense counsel informed the trial court that he explained the potential benefits of an intoxication defense but that "defendant’s position is that he was not intoxicated [and the police] led him to make statements that were not true regarding intoxication[].” Defendant also "want[ed] the jury to decide on the merits whether or not these things happened or whether or not they were misled by the child’s statements or the mother’s statements.”

6 State v. Bey, 112 N.J. 123, 143, 548 A.2d 887 (1988) (Defendant testified that "beginning approximately four and one-half hours before the incident and continuing until he first saw [the victim] he consumed [120] ounces of malt liquor, some straight rum, and smoked a considerable amount of marijuana."); State v. Frankland, supra, 51 N.J. at 223, 238 A.2d 680 (Defendant testified "he had consumed fifteen drinks of scotch and water and could not remember the events of the evening.").

7 State v. Polk, supra, 164 N.J.Super. at 460-62, 397 A.2d 330 (question of defendant's consumption of alcoholic beverages permeated the entire trial-on the day of the killing, defendant drank beer and wine from 9 a.m. until sometime in the afternoon; record of amount of alcoholic beverages consumed by defendant was not precise but was unquestionably "substantial”; detective smelled alcohol on defendant's breath two hours after the killing; drinking companion/victim had blood-alcohol concentration of 0.158; defendant acted irrationally, hitting baby with his fist and throwing baby down onto a porch; investigator found beer cans strewn around the scene of the killing); State v. Holzman, 176 N.J.Super. 590, 592, 424 A.2d 454 (Law Div.1980) (defendant took four Fiorinal tablets, a mild sedative, and drank two "Black Russian” drinks on the day and evening of her drunk driving offense; displayed unusual and irrational behavior at the police station; and denied all recollection of events occurring one hour prior to her crime).