On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
[235 NJSuper Page 115] The primary issue presented by this appeal is whether a defendant may be excluded from an in camera hearing conducted under the Rape Shield Law, N.J.S.A. 2C:14-7, to determine the admissibility of evidence of any previous sexual conduct of the alleged victim. We conclude that a trial court lacks the authority to exclude a defendant from such a hearing.
Furthermore, the exclusion of defendant from the Rape Shield hearing in this case was not harmless error. Therefore, defendant must be afforded a new Rape Shield hearing at which he is present and, if the victim gives testimony at that hearing which is different in any material respect from her testimony at the original hearing, defendant must be granted a new trial.
Defendant was charged with sexual assault, in violation of N.J.S.A. 2C:14-2c(5), and burglary, in violation of N.J.S.A. 2C:18-2. A jury acquitted defendant of burglary but convicted him of sexual assault. The court sentenced defendant as a persistent offender to a 15 year term of imprisonment with 5 years of parole ineligibility.
The victim was 14 years old at the time of the assault on April 28, 1983. Defendant, then 28 years old, was her sister's boyfriend. The victim's sister was not at home on the night of the assault and defendant apparently gained entry into the house through a broken window. The victim testified that she awoke in the middle of the night to find defendant engaging in intercourse with her. She unsuccessfully struggled with him, but he continued the sexual assault until he ejaculated. The victim then ran to her mother's bedroom and told her what had happened. After confronting defendant, who denied the sexual assault, the victim's mother took her to the hospital. One of the tests performed on the victim showed the presence of spermatozoa-bearing semen in her vagina.
Defense counsel indicated at the beginning of trial that he intended to cross-examine the victim with respect to her sexual activities during the day of the assault and the preceding three or four days in order to raise doubt as to whether the semen found in her vagina came from the defendant. Consequently, he requested an in camera hearing pursuant to N.J.S.A. 2C:14-7a to determine the admissibility of this evidence. The trial court granted this request, but over defendant's objection denied him the right to be present during the hearing. The court indicated its awareness of defendant's right of confrontation
and right to be present at each stage of the proceeding. However, the court concluded that the hearing required by N.J.S.A. 2C:14-7 must be conducted in chambers outside the presence of the defendant "to protect the privacy of the witness and avoid unnecessary embarrassment and humiliation."
At the hearing pursuant to N.J.S.A. 2C:14-7, the victim testified that she had had sexual intercourse prior to defendant's assault but not within the preceding two weeks. Based upon the evidence presented at the hearing, the trial court ruled that any inquiry by defendant regarding the victim's previous sexual conduct would be limited to whether she had had sexual intercourse between April 24th and the day of the alleged assault, April 28th, and whether she had ever had sexual intercourse with a white male.*fn1 However, defense counsel did not pursue either of these permitted lines of inquiry during his cross-examination of the victim.
The trial court erred in barring defendant from the in camera hearing required by the Rape Shield Law. A criminal defendant has a fundamental right to be present at every critical stage of a trial. State v. Trent, 157 N.J. Super. 231, 241 (App.Div.1978), rev'd on other grounds 79 N.J. 251 (1979). The rules of court state that "[t]he defendant shall be present at every stage of the trial." R. 3:16. A defendant's right to be present during any pertinent testimony given by a prosecution witness is also guaranteed by the Confrontation Clause ...