On appeal from Superior Court of New Jersey, Law Division, Essex County. by Supreme Court; May 1, 1989, Decided
Petrella and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
This matter arises from defendant's 1983 convictions in the Law Division on two counts of aggravated sexual assault upon R.B., which he appealed to this court. We affirmed in our opinion of August 8, 1988. Defendant petitioned for certification to the Supreme Court. The Supreme Court ordered that the matter be "summarily remanded to the Appellate Division for clarification of its disposition of the 'fresh complaint' issues raised in defendant's letter to the Appellate Division dated March 24, 1988." 114 N.J. 304 This court had inadvertently not considered the "fresh complaint" issues in its prior opinion. We requested of the parties and have received briefs on the remanded issue.
The essential facts are set forth in our August 8, 1988 opinion. Preliminarily, it is sufficient to state that defendant's conviction involved sexual assaults upon five-year old R.B. Approximately one or two weeks after the assaults, R.B. was taken to the hospital for a physical examination by two Division of Youth and Family Services workers. The child denied to the examining physician that she had been sexually abused. However, on the following day, Peggy Foster, a social worker at the hospital, discussed the incidents with R.B., and the child discussed and demonstrated the assaults by the use of anatomically correct dolls.
Defendant contends that Ms. Foster's testimony relating R.B.'s statements about the assaults was erroneously admitted
as "fresh complaint" testimony, citing State v. J.S., 222 N.J. Super. 247 (App.Div.), certif. den. 111 N.J. 588 (1988). No objection was made before the trial court that Ms. Foster's testimony regarding R.B.'s "fresh complaint" should not be permitted as it was the product of questioning.
The "fresh complaint" rule permits the introduction of evidence that the victim of a sexual assault complained of the proscribed act within a reasonable time after the act occurred to someone who she would normally turn to for sympathy, protection or advice. State v. Balles, 47 N.J. 331, 338 (1966), app. dism., cert. den. 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967); N.J. Youth & Family Serv. Div. v. S.S., 185 N.J. Super. 3, 8 (App.Div.), certif. den. 91 N.J. 572 (1982).
In State v. Kozarski, 143 N.J. Super. 12 (App.Div.), certif. den. 71 N.J. 532 (1976), the defendant contended for the first time on appeal that the "complaint" of the infant victim of a sexual assault should not have been admitted under the "fresh complaint" rule, as it "may not have been a complaint at all, but may have been elicited under questioning by the mother." Id. 143 N.J. Super. at 17. The court did not decide the issue, as testimony of a different, unchallenged, "fresh complaint" witness had been admitted and there was thus no plain error. Ibid. As noted by appellant, in J.S., 222 N.J. Super. at 253, it was stated that in order for a statement by a victim of a sexual assault to be admitted under the "fresh complaint" rule, it must have been self-motivated and not extracted by interrogation. Cf. State v. D.R., 109 N.J. 348, 359 (1988), ("[A] child victim's spontaneous out-of-court account of an act of sexual abuse may be highly credible because of its content and the surrounding circumstances.") and proposed Evid.R. 63(33) in appendix to opinion.
Other jurisdictions are split on the issue of whether to admit statements which follow questioning under the "fresh complaint" doctrine. Compare Illinois v. Alexander, 11 Ill.App. 3d 782, 789, 298 N.E. 2d 355, 360 (1973) (statements of rape victim
upon questioning may constitute "fresh complaint") with Ketcham v. Indiana, 240 Ind. 107, 112, 162 N.E. 2d 247, 249 (1959) (statement received by mother from five year old child not admissible as "fresh ...