On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by McElroy, J.A.D.
In a trial by jury defendant was convicted of (1) rape, contrary to N.J.S.A. 2A:138-1; (2) assault with intent to rape, in violation of N.J.S.A. 2A:90-2, and (3) breaking and entering with intent to rape, a violation of N.J.S.A. 2A:94-1. Defendant's motion for a new trial was denied. The trial judge sentenced him to 20 to 25 years on the rape conviction, merged count two with the rape count and imposed a concurrent sentence of three to five years on the conviction under the third count. Defendant appeals contending:
POINT I -- THE TRIAL COURT COMMITTED ERROR OF CONSTITUTIONAL DIMENSION WHEN IT RULED THAT EVAN GREEN WOULD NOT BE PERMITTED TO TESTIFY AS A DEFENSE WITNESS THAT HER PREVIOUS TESTIMONY WAS UNTRUTHFUL.
POINT II -- THE COMPLAINING WITNESS WAS INCOMPETENT TO TESTIFY PURSUANT TO EVIDENCE RULE 17 (Partially raised below).
POINT III -- THE COURT ERRED IN DENYING DEFENDANT A HEARING PURSUANT TO N.J.S.A. 2A:84A-32.1.
POINT IV -- THE COURT BELOW SHOULD HAVE EXCLUDED DEFENDANT'S PRIOR CRIMINAL RECORD SO AS TO PERMIT HIM TO TESTIFY IN HIS OWN DEFENSE.
POINT V -- THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY RESTRICTING HIS SCOPE OF CROSS EXAMINATION.
POINT VI -- THE COURT ERRED IN PERMITTING "FRESH COMPLAINT" TESTIMONY.
POINT VII -- DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND CONSTITUTES AN ABUSE OF DISCRETION.
We have examined the record, considered defendant's contentions and with the exception of the issue raised in defendant's first point, hold the issues raised are clearly without merit. R. 2:11-3(e)(2).
The first point raises as error the trial judge's refusal to permit defendant to call as a defense witness Evan Green who, after testifying for the State, recanted her important testimony. The essential facts follow.
The victim in this matter was an 18-year-old retarded girl. The trial judge found her qualified to testify and she identified defendant as the person who entered her bedroom window and sexually attacked her. The quality of the testimony of this witness, although of sufficient probative value to carry the case to the jury, was greatly bolstered by that of the nine-year-old witness, Evan Green. This child, defendant's niece, stated that she saw defendant enter the victim's window and remain in the apartment for a length of time. She also testified that her friend, the retarded victim, approached her shortly after the rape and, in "fresh complaint" circumstances, described the crime to her and identified defendant as her assailant. The considerable value of this witness' testimony to the State's case is obvious.
Evan Green completed direct and cross-examination at trial on January 16, 1980. On the morning of January 17, 1980 defense counsel and the prosecutor apparently met with the trial judge in chambers where some discussion was had indicating that the child wished to change her prior testimony. Thereafter, in open court and upon the record, defense counsel indicated that after court adjourned for the day on the afternoon of January 16 she was approached by Daisy Green, Evan's mother, who advised counsel that Evan had lied about having seen the defendant enter the victim's apartment through the bedroom window. Mrs. Green indicated Evan had lied because the victim had asked her to do so and had promised her a dollar if she would so testify. Defense counsel advised the judge that she had interviewed Evan on the morning of January 17 and the child had indicated that she had lied and had been promised a dollar by the victim to do so.
Defense counsel advised the judge that she intended to call Evan Green as a defense witness to so testify. When asked by
the judge whether the State had any objection, the prosecutor stated that she had and requested the judge to "evaluate" the child before permitting the witness to be called by the defense. The prosecutor advised the judge that at the lunch recess, and after Evan had testified, she observed Evan's female relatives were hostile toward Evan and that she and a state investigator were concerned later that day as to "what treatment" the child might receive at the hands of her family. She also stated that she had spoken to Evan on the morning of January 17 and found "her attitude had turned around 180 degrees from what it was yesterday; completely hostile; she didn't want her uncle to go to jail." The judge had Evan Green brought into the courtroom and, in the absence of the jury, she was questioned by the judge.
The interrogation developed that Evan was now ready to testify that all of her previous testimony consisted of lies. Evan stated, "I lied for [the victim]. My uncle didn't rape [her]." She told conflicting versions as to when the victim promised her a dollar, but emphatically stated she had not seen her ...