Lynch, Kole and Petrella. The opinion of the court was delivered by Kole, J.A.D.
Defendant appeals from his conviction by a jury of rape.
From the proofs at the trial, a jury fairly could have found the facts that follow beyond a reasonable doubt.
At or about midnight on May 7, 1975 defendant, without the consent of the prosecutrix (hereafter, "the victim" or "complaining witness"), to whom he was a stranger, entered her automobile and demanded that she give him a ride, threatening her with bodily harm if she refused. She complied, but almost immediately pulled off the road into a gas station, falsely claiming to be in need of fuel but actually seeking an opportunity to obtain help. Defendant threatened to kill her if she said anything, demanded the money for
the gasoline and briefly alighted from the car to walk to the rear of the car and simultaneously order the gasoline from the attendant and pay him. The victim did not have the opportunity to speak to the attendant, nor did she drive away during the short period of time defendant was out of the car.
Defendant directed that she drive on for another short interval and then ordered her to pull off the road into a driveway. There he demanded she have intercourse with him, threatening her again with harm, physically restraining her from leaving the car, hitting her and bending her fingers back. She submitted. Afterward, he told her to return him to the parking lot where he had first entered her car. Soon after he left her car she reported the incident to the police. She was hysterical. However, she immediately identified defendant as her assailant. He was arrested by the police. She was taken to the hospital. She was so distraught that initially she would not permit a male physician to examine her. After the incident the victim, a divorcee in her early twenties, did not have any dates with men for six months, moved from her own apartment back to her parents' home and took a new job with daytime hours, rather than continuing her night job. Defendant did not testify. But the theory of his defense, as reflected in his counsel's arguments, was consent by the victim.
On this appeal defendant advances the following contentions: (1) the trial judge abused his discretion in failing to permit introduction of the complaining witness's statement of a recent act of intercourse and in summarily barring cross-examination with respect thereto; (2) N.J.S.A. 2A:84A-32.1 (part of the so-called "rape shield" statute), construed to bar cross-examination as to the complaining witness's statement of intercourse with another individual shortly before the alleged rape, denied defendant his constitutional right to confront witnesses; (3) it was prejudicial error to exclude defendant's statement indicating consent when made within a brief period of time after the alleged rape. (4) the
prosecutor's closing remarks with respect to defendant's "failure" to account for his actions violated his constitutional right against self-incrimination where he did not testify, and (5) the prosecutor's closing remarks were calculated to arouse the passion and sympathies of the jurors and were not cured by the court's supplemental instructions.
We find no merit to any of these contentions.
As to the first and second contentions, defendant claims that he was improperly precluded from cross-examining the victim about a specific instance of sexual intercourse in which she had engaged with an unknown man other than defendant, presumably consensually, the night before the night of the incident giving rise to this charge. She had given the police a statement that she had engaged in such intercourse "just last night." Defendant claims that the trial judge improperly applied the bar of N.J.S.A. 2A:84A-32.1 without hearing testimony and in derogation of the weighing process described therein. He also asserts that the statutory bar, as applied under these facts, infringed his constitutional right to confront and cross-examine the victim.*fn1
Evidence of specific instances of a rape victim's consensual sexual intercourse with a person other than the accused is not admissible for the purpose of drawing an inference of consent in another instance. Evid. R. 47; State v. Rubertone , 89 N.J.L. 285, 287 (E. & A. 1916); ...