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State v. Frey

Decided: June 14, 1984.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE OTTO FREY, III, DEFENDANT-APPELLANT



On Appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Matthews, J. H. Coleman and Gaulkin.

Per Curiam

Defendant was found guilty of two counts of aggravated sexual assault, two counts of attempted aggravated sexual assault, one count of burglary, kidnapping, criminal restraint, terroristic threats, criminal coercion and aggravated assault. On the two aggravated sexual assault charges, he was sentenced to aggregate custodial terms of 30 years with 15 years of parole ineligibility. He was sentenced to concurrent terms on the remaining counts.

In this appeal defendant contends it was plain error for the court not to charge identification. Defendant was charged with, among other things, raping M.L.P. in the Linden Court Motel in Wall Township, New Jersey. The evidence presented at trial disclosed that the victim was asleep in her motel room when she was awakened by a noise in the bathroom. She observed a man in the bathroom in his shorts and then in the bedroom area of her room. As she attempted to escape from the room, the perpetrator dragged her to her bed. After threatening to kill her, he taped the victim's arms and eyes. While the victim's eyes and arms were taped, the perpetrator forced her to engage in various sexual acts. After the perpetrator left the room, the victim was able to free herself and summon help.

M.L.P. also testified that she was able to see the perpetrator before her eyes were taped. The bathroom light remained on and the perpetrator was in her full view until her eyes were taped. Approximately one week after the episode, the victim made a photographic identification of defendant as the perpetrator. Thereafter, she picked defendant out of a lineup. The victim stated that she based her identification on the individual's weight, build, height, hair, shape of face, eyes and eyeglasses. There were no other eyewitnesses.

Defendant sought and obtained a pretrial Wade*fn1 hearing. The judge determined that the identification procedure was not impermissibly suggestive. Despite the obvious issue of identification of the perpetrator, the court failed to charge specifically the jury on that issue. The court, however, did charge the jury that "where the presence of the defendant at the scene of the crime is essential to show its commission by him, the burden of proving that presence beyond a reasonable doubt is upon the State."

Notwithstanding the failure of defense counsel to request an instruction on identification, it was the trial judge's responsibility to instruct the jury on all essential and fundamental matters. The absence of any eyewitness other than the victim and defendant's denial of guilt, made it essential for the court to instruct the jury on identification. Given the total circumstances surrounding the events under scrutiny and the limited period of time the victim was able to see the perpetrator before her eyes were taped, the potential for a mistaken identification becomes readily apparent. Also, tests indicated that hair, blood and saliva obtained from the scene of the crime did not conclusively match those samples obtained from defendant. Consequently, the short instruction to the jury on the need for the State to prove defendant's presence at the scene of the

crime was insufficient in this case involving many counts. The Model Jury Charge on identification instructs the jury on how to determine identification and the reliability of that identification. Here, the instructions as a whole fell far short of properly advising the jury on how to decide such a crucial issue. We are therefore persuaded that this was error which possessed the clear capacity to bring about an unjust result. State v. Green, 86 N.J. 281, 291-293 (1981); State v. Melvin, 65 N.J. 1, 18 (1974). This error requires reversal of the judgment.

Defendant further contends that the court committed reversible error when it permitted Investigator Coleman to testify that in her expert opinion there was evidence of sufficient acid phosphatase to establish recent vaginal penetration and ejaculation.

Investigator Coleman was employed in the Monmouth County Prosecutor's Office in the sex Crimes Unit. Her qualifications consisted of an associate's degree from Brookdale Community College, training in sex crimes analysis and investigation at the State Police Academy at Sea Girt and about seven seminars of varying lengths on sex crime investigation and analysis. To summarize, her training, education and experience were confined to interviewing sex crime victims, investigating these crimes, and collecting and preserving evidence for trial. The trial judge concluded "based on this witness's education, training and experience, that she's qualified as an expert in sex crime investigation and analysis and I'll permit her testimony as an expert."

Over objection of defense counsel, she was permitted to testify as an expert witness. The following colloquy highlights the objectionable testimony:

Q Miss Coleman, could you explain the -- excuse me. When a man ejaculates, seminal fluid is emitted, correct?

A That's correct.

Q Now, could you explain to the jurors the composition of seminal fluid, please?

A The major component of it is acid phosphatase.

Q And can spermatozoa be found in seminal ...


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