May 17, 1977
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERRY KELLY, DEFENDANT-APPELLANT.
The majority opinion was delivered by
MILMED, J.A.D. Defendant appeals from his conviction and sentence for lewdness (N.J.S.A. 2A:115-1) and from the denial of his motion for a judgment of acquittal or in the alternative for a new trial.*fn1 His contentions as set forth in the brief submitted on his behalf are:
POINT I - Failure to limit count four (4) of the indictment to the specific offense alleged therein was reversible error.
POINT II - As there was insufficient proof to convict under N.J.S. 2A:115-1, count four of the indictment should have been dismissed at the close of the State's case.
POINT III - Prosecutorial abuse in the summation to the jury was prejudicial error which warrants reversal.
POINT IV - Prosecution of defendant under N.J.S. 2A:115-1 was an unconstitutional invasion of privacy.
POINT V - The testimony admitted under the fresh complaint rule was excessive and prejudicial.
We have considered each of these contentions in our review of the record submitted on this appeal. We find that each of the issues raised by defendant is clearly without merit. R. 2:11-3(e)(2). His motion for a judgment of acquittal, or in the alternative a new trial, on the fourth count of the indictment was properly denied. From our review of the record on this appeal, we are satisfied that a manifest denial of justice under the law does not "clearly and convincingly" appear. R. 3:20-1; State v. Sims, 65 N.J. 359, 373-374 (1974); Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969). See R. 2:10-1. Beyond this, we note that the record supports the trial judge's assessment that "the facts adduced by the State certainly would permit this jury to conclude, as they did, that the defendant was guilty of lewdness, * * *."
The conviction and sentence on the fourth count of the indictment are affirmed. The matter is remanded to the trial judge for correction of the judgment of conviction in accordance with our footnote "1" herein.
ANTELL, J.A.D. (dissenting). I disagree that defendant's claim of error in the trial judge's application of the fresh complaint rule "is clearly without merit." To understand my reasons, however, it is necessary to examine the record, irritant though it may be.
The infant victim's mother was evidently defendant's paramour. They and her children occasionally resided together, and it was during these assignations that the events allegedly occurred upon which the charges of lewdness and contributing to the delinquency of a minor were based. The witness to whom the child was said to have first complained about defendant's misconduct was the child's maternal grandmother, Mrs. Baker, who made no attempt to conceal her animosity toward the defendant. The following questions and answers, having to do with the child's complaint, form the basis of defendant's grievance:
THE COURT: You may proceed
BY MR. FORMAN:
Q Now, Mrs. Baker, I am going to ask you a very limited question, and I wish you would respond in that fashion. In reference to the complaint that you filed, what did Kimberly tell you happened to her?
A Kimberly came up and told me that she was afraid to tell anybody, that she was afraid to tell her mother, and she told me that Jerry got in bed with her and put his private right near her backside.
Q Did she tell you anything else?
A She told me that every time she went to the bathroom that he would walk in there, he threw ice cold water on her back, and he -
MR. ECKEL: I object, Your Honor -
THE WITNESS: And he put his fingers up her private, and -
MR. ECKEL: Your Honor, I object.
THE WITNESS: I'm telling you the God's truth.
MR. ECKEL: I object, Your Honor.
THE COURT: Whenever there is an objection you stop until the Court has had an opportunity to hear the objection.
MR. ECKEL: The answer is unresponsive and also irrelevant.
THE COURT: To a degree it was unresponsive, but I believe it is relevant.
I am going to instruct the witness, just answer the question.
THE WITNESS: All right.
THE COURT: Don't volunteer any information beyond what is required to answer the question.
THE WITNESS: All right.
THE COURT: All right. You may proceed.
BY MR. FORMAN:
Q Did she tell you anything else?
A She told me that he walked -
MR. SELTZER: It seems to me the question is too broad, Your Honor, did she tell you anything else. If we confine it to the items we have been discussing with respect to the testimony of Kimberly -
THE COURT: I think you should try to limit it.
BY MR. FORMAN:
Q Did Kimberly tell you anything else at the time, which made you file the complaint?
A She told me all he did was walk around naked, he laid on the couch, and when he wanted to urinate, he put it in a bottle and made the children -
MR. ECKEL: I ask that be stricken, Your Honor.
THE COURT: That last remark should be stricken, because it is not responsive.
Now, again, just try to reply to the question.
THE WITNESS: All right.
BY MR. FORMAN:
Q And on the basis of that information, what did you do?
A I went down and signed a complaint, had him arrested.
Q All right. Now, is that all she told you on the basis of those complaints that you signed on that date?
A She told me that she was afraid of him, that all he did was beat her.
Q Now, did she tell you why she didn't tell you this before that time?
A She said that she was afraid, she was ascared, she said. I said, "Why didn't you tell me before," I said, "I would have had him arrested then," I said -
The inflammatory character of this testimony is so plain that little comment is needed to demonstrate its irreparably prejudicial impact.
Professor Wigmore explains well the logical basis of the fresh complaint rule. I will let him speak:
It has already been seen ( § 1042 supra) that the fact of a failure to speak when it would have been natural to do so is in effect an inconsistent statement or self-contradiction - as when on a former trial a witness said nothing about an important circumstance which he now asserts, or when he failed to testify at all, though present, when his testimony (if true) could have been highly valuable. This failure to speak, as also already seen ( § 1044 supra), may perhaps be explained away in some fashion; but, unless so explained, it stands in effect as a self-contradiction.
(1)(a) Now, when a woman charges a man with a rape, and testifies to the details, and the accused denies the act itself, its very commission thus coming into issue, the circumstance that at the time of the alleged rape the woman said nothing about it to anybody constitutes in effect a self-contradiction of the above sort. It was entirely natural, after becoming the victim of an assault against her will, that she should have spoken out. That she did not, that she went about as if nothing had happened, was in effect an assertion that nothing violent had been done.
Thus, the failure of the woman, at the time of an alleged rape, to make any complaint could be offered in evidence (as all concede) as a virtual self-contradiction discrediting her present testimony.
(b) So, where nothing appears on the trial as to the making of such a complaint, the jury might naturally assume that none was made, and counsel for the accused might be entitled to argue upon that assumption. As a peculiarity, therefore, of this kind of evidence, it is only just that the prosecution should be allowed to forestall this natural assumption by showing that the woman was not silent, i.e., that a complaint was in fact made.
This apparently irregular process of negativing evidence not yet formally introduced by the opponent is regular enough in reality, because the impression upon the tribunal would otherwise be there as if the opponent had really offered evidence of the woman's silence. Thus the essence of the process consists in the showing that the woman did not in fact behave with a silence inconsistent with her present story. [4 Wigmore, Evidence § 1135 (3d ed. 1940), § 1135; footnotes omitted, emphasis in original]
Accord, State v. Tirone, 64 N.J. 222, 226-227 (1974); State v. Balles, 47 N.J. 331, 338-339 (1966), cert. den. 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967); State v. Gambutti, 36 N.J. Super. 219, 228-229 (App. Div. 1955).
In most cases the witness need not say more than that the victim "told me what happened" or "told me what the defendant did to her." Within the context of the trial, together with an explanatory comment by the court, this is usually sufficient to identify the episode referred to and to assure the jury that she did not by her silence act in a manner contradictory to the substanceof her complaint. Rarely is it necessary to venture into even the outlying details. With all deference to the established precedents which hold that under the rule "enough may be given in evidence to show the nature of the complaint, even though it involves to some extent the particulars thereof," State v. Balles, supra, 47 N.J. at 339; State v. Gambutti, supra, 36 N.J. Super. at 228. As the excerpted passage from the transcript demonstrates, Mrs. Baker's testimony was virtually unconfined in this most sensitive area.
By repeatedly coaxing and leading the witness, the prosecutor strove to elicit as many of the details of what the youngster had told the witness as she could remember. Thus the jury was told of the little girl's extrajudicial statements about defendant getting into bed with her, walking around naked, putting his private by her backside, putting his fingers into her privates, beating her, and pouring ice-cold water on her back. Beyond this, the witness even recounted the girl telling of her fear of defendant and giving this as her reason for not complaining earlier. As if this were not enough, there was also left festering in the imagination of the jurors the question of what vile deed defendant made the children perform with the bottle into which he had urinated, an episode not even dealt with in the child's testimony. Although this was stricken "because it is not responsive," its effect upon the chances of an acquittal could have been nothing less than lethal.
Recognizing that the details of the complaint become admissible when complainant has been impeached, the State argues that this basis for admissibility was created during defendant's cross-examination of the complainant. In State v. Gambutti, supra, Justice Francis (then judge of the Appellate Division) explained this feature of the rule in the following language:
But the details of the complaint achieve competency only when the complainant has been impeached by cross-examination or otherwise. State v. Saccone, 7 N.J. Super. 263 at page 266; Wigmore, § 1138(3), p. 228. Impeachment does not signify mere cross-examination and the possible development of contraditions and inconsistencies in her version of the incident. State v. Griffin, supra, 19 N.J. Super. 581, at page 586. It means that an attack has been made on her general reputation for truth or that she is charged with "a motive to falsify, bias or interest," or where the attack tends to show that the testimony is a fabrication "'of recent date or is colored, distorted, and falsified through the influence of some strong personal motive.'" State v. Saccone, supra, 7 N.J. Super., at page 267; State v. Kane, 9 N.J. Super. 254, 263 (App. Div. 1950). In this situation on the theory of rehabilitation, her credibility may be restored or bolstered by showing that the particulars of her early and original complaint were the same as her testimony. State v. Orlando, 119 N.J.L. 175, 179 (Sup. Ct. 1937). The function of such evidence is not corroboration or substantive proof but solely to sustain the credibility of the witness. Rehabilitation of credibility is not peculiar to sex cases; the practice applies in criminal trials generally. State v. Kane, supra, 9 N.J. Super., at page 263. [36 N.J. Super. at 229]
The child was cross-examined by defendant, but nowhere do I find that her testimony was "impeached" in the sense explained by the foregoing excerpt.
The harmful error which lay in the receipt of this evidence was compounded by what, in my view, were inaccurate, confusing, and inadequate instructions on fresh complaint given by the court in its charge to the jury. The judge's entire treatment of the subject is contained in the following two paragraphs:
Generally, crimes involving sex are not perpetrated in public view. They frequently happen in seclusion and in the shadows, and, by reason of these circumstances, usually the only witnesses are the accuser and the accused. Consequently, the Court is often faced with directly conflicting testimony, and so has adopted the rule of permitting testimony of a fresh complaint to bolster the credibility of the abused female. The reason for allowing such testimony is based on the nature of the indignity. A female undergoing such an act would be expected to complain to a parent or other person of authority to whom she would probably turn to vent and express her feelings because of the insult to her dignity. Such evidence, though hearsay, is permitted, but only for the purpose of supporting the credibility of the victim's complaint, and not as corroboration of the alleged offense.
You may consider the circumstances and time when the complaint was made, in other words, whether or not it was made within a reasonable time, the demeanor and emotional condition of the victim while making the complaint, as well as her physical appearance and other like indications, if any, that are confirmatory of her testimony. All of these factors go to the question of credibility to be accorded to the alleged victim's complaint.
It should be noted that the judge at no time identified the witness or the testimony he was talking about. Not even the most perceptive jury could know that he had in mind Mrs. Baker's testimony and that it was this that was to be considered by them only for the limited purpose which he described. "A charge should be a clear, unambiguous guide related to the evidence in the case." State v. Abbott, 36 N.J. 63, 75 (1961).
All that the court submitted to the jury was a statement of "abstract propositions, unanchored to the factual setting," id. at 74, which amount, in fact, to nothing more than a series of non sequiturs. The judge first explains that sex crimes are not committed in public view; because of this, the charge goes on, the court is faced with conflicting testimony and for this reason has adopted the fresh complaint rule to "bolster the credibility of the abused female." At the outset, I know of very few crimes that are committed in the public view and which do not give rise to conflicting testimony. These facts are unrelated to the fresh complaint rule. As Wigmore explains, the purpose of the rule is to allow the State to meet in advance the negative inference which would be drawn in a case involving sexual abuse from a failure on the victim's part to report the incident promptly to one to whom she would naturally turn in her distress. This has nothing to do with "supporting" or "bolstering" her credibility. It only means that without it her credibility could be vulnerable. But by explaining that such testimony is admitted to resolve "directly conflicting testimony" the jury is encouraged to weigh these proofs as tending to enhance the victim's credibility, as strengthening the evidence of guilt, and not for the rule's correct special purpose. This result is in no way inhibited by the language in the first paragraph by which the jury is cautioned that the evidence is permitted "only for the purpose of supporting the credibility of the victim's complaint, and not as corroboration of the alleged offense." If, indeed, there is a distinction between the two purposes, it is much too tenuous for the average jury to understand without considerably greater development by the court.
In conclusion, in applying the fresh complaint rule details of the offense should be confined to those minimally necessary to identify the subject matter of the victim's complaint. In its instructions, the judge should call the jury's attention to the specific testimony about which he is going to speak. The jury should be told that the import of the testimony was only that the victim promptly reported the criminal event to one to whom she would naturally confide under the circumstances. The purpose of the rule should then be explained in appropriate language which does not fail to inform the jurors that its use is confined to neutralizing the inference that could otherwise be drawn that her later conduct was inconsistent with the facts of the complaint. References to the details as "supporting" or "bolstering" her credibility should not be made unless the witness has been impeached, and then only to explain how they serve to rehabilitate her testimony. Because these basic standards were disregarded in the management of this trial I would reverse.