For reversal -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. For affirmance -- None. The opinion of the Court was delivered by Collester, P.J.A.D.
[64 NJ Page 224] Temporarily Assigned. Defendant was indicted for assault with intent to commit rape in violation of N.J.S.A. 2A:90-2 and rape in violation of N.J.S.A. 2A:138-1. He was found guilty by a jury of rape and sentenced to a prison term of 10-15 years. On appeal,
the Appellate Division reversed the judgment of conviction in an opinion reported at 124 N.J. Super. 530 (1973). This Court granted the State's petition for certification. 63 N.J. 584 (1973).
According to the State's testimony Linda Sanzari first met the defendant at about 4 P.M. on February 17, 1971 while she was getting coffee for fellow employees outside the dress shop where she was employed at the Willowbrook Mall in Wayne Township. Following a conversation she consented to have a date with him when she finished work that evening at 10 P.M. When Miss Sanzari met the defendant later it was agreed that they would use her car because Ines Barreto, defendant's companion, needed Tirone's car to drive home. Miss Sanzari and the defendant thereafter went to a restaurant, two cocktail lounges and a diner. They then drove to Passaic and stopped on a street near defendant's home. Miss Sanzari testified that after a good-night kiss defendant made improper advances which she resisted. She said that when she struggled to be released defendant struck her twice in the face, choked her, and then raped her. Miss Sanzari testified the criminal attack occurred at 1:30 A.M. after which she drove to her home in Hackensack. At about 8 A.M. that morning she telephoned her brother's house and told his wife what had happened. The latter told the brother, Larry Sanzari, and both went to Miss Sanzari's apartment at about 8:30 A.M. She again related the story of the attack. They then went together to the Passaic police headquarters where she reported the crime.
Larry Sanzari testified, over defendant's objection, that when he arrived at his sister's home she told him she had been raped by a man named "Larry" Tirone in Passaic. The testimony was ruled admissible under the "fresh complaint rule." Sanzari and two Passaic detectives also testified they observed cuts on the inside of the victim's swollen lip and discoloration marks on her throat.
Defendant did not testify on his own behalf. The defense called three witnesses who testified that defendant was at
home during the evening of February 17 when the crime allegedly took place. Barreto denied that defendant met Miss Sanzari on the evening of February 17. He claimed that defendant's date with Miss Sanzari was on the previous evening of February 16 and that he was present when Miss Sanzari met defendant at 10 P.M. after she finished work. In rebuttal the State introduced evidence, including records of the victim's employer, which indicated that Miss Sanzari did not work after 6 P.M. on February 16.
On appeal to the Appellate Division, defendant alleged the trial court erred in admitting Larry Sanzari's testimony that his sister told him she had been raped by the defendant. He contended that the "fresh complaint" doctrine was abolished by the adoption of Evidence Rule 20 and, that in any event, the victim's complaint to her brother was not a fresh complaint because it was not made until seven or eight hours after the alleged rape occurred and had been made first to her brother's wife. The Appellate Division found no merit in these contentions.
While we agree with the conclusions reached by the appellate court in this connection substantially for the reasons given in its opinion, we think that it should be amplified in view of defendant's claim that Evidence Rule 20 abolished the fresh complaint doctrine.
Evidence Rule 20 provides that no evidence to support the credibility of a witness shall be admitted except to meet a charge of recent fabrication. The fresh complaint doctrine has traditionally been applied by our courts in rape and morals cases. It permits proof by the prosecution on the State's case that the victim complained of the criminal act within a reasonable time after it occurred to someone she would ordinarily turn to for help and advice. In State v. Gambutti, 36 N.J. Super. 219 (App. Div. 1955), the Court stated that the victim's complaint was "provable in recognition of the adverse inference which might be expected to flow from silence and for the purpose of negativing or rebutting in advance a self-contradiction which, if not explained,
would tend to discredit her as a witness." (at 226) The doctrine was reaffirmed by this Court in State v. Balles, 47 N.J. 331, 338-339 (1966), cert. denied and appeal dismissed, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). Wigmore equates the admission of such testimony with meeting in advance a charge of recent contrivance. 4 Wigmore, Evidence (Chadbourn rev. 1972), § 1129. Since the purpose of admitting fresh complaint testimony is thus, in a sense, to meet in advance ...