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State v. Frost

Decided: July 16, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY FROST, A/K/A ABDUR SHARIF, DEFENDANT-APPELLANT



Michels, Deighan and Cohen. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

[242 NJSuper Page 605] One issue on this appeal is the admissibility of "battered woman syndrome" evidence to bolster a victim's credibility in the prosecution of a defendant on an assault charge where the prosecutor sought to use a series of prior assaults on the victim and reconciliations over a period of time. We hold that such evidence is admissible as part of the State's case in chief.

Defendant Gregory Frost, a/k/a Abdur Sharif, was convicted by a jury of fourth-degree contempt of court, in violation of N.J.S.A. 2C:29-9 (count one); fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d (count three); third-degree burglary, in violation of N.J.S.A. 2C:18-2 (count four); simple assault, in violation of N.J.S.A. 2C:12-1a(1), a lesser-included offense of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1) (count five); first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (4) (count six), and third-degree aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3a (count seven).

At sentencing, the judge merged the second count into the third, and the seventh count into the sixth. He then imposed an eighteen-month sentence on count one, a consecutive five-year sentence with two and one-half years of parole ineligibility on count three, another consecutive five-year sentence with two and one-half years of parole ineligibility on count four, a concurrent six-month sentence on count five, and a consecutive twenty-year sentence with a ten-year parole disqualifier on count six, for an aggregate sentence of 31 1/2 years with 15 years of parole ineligibility. The total sentence was consecutive to any sentence defendant was currently serving for parole violation. A $150 Violent Crimes Compensation Board penalty was also imposed.

The following facts were developed at trial. On April 3, 1986, L.S. had been romantically involved with defendant for about three and one-half years, and had a child, R.S., seven months old, by defendant. She had lived with defendant on and off in different places, but on that date, she was living in an apartment in Ocean Township with her baby and her mother, D.S.

At approximately 7:30 that morning, L.S. was awakened by defendant tapping her on the shoulder. He started to holler at

her and hit her. The baby began to cry so L.S. grabbed the child and ran to the front door as defendant ransacked her bedroom. When L.S. could not get the front door open, defendant approached her wielding a box cutter with a razor in it, and cut her arm.

L.S. testified that they talked and she suggested they go to the bedroom and have sex. L.S. claimed that the reason she suggested sex to defendant that morning was because she knew "that would calm him down." They then went to L.S.'s mother's place of employment in Red Bank to get keys for her mother's car. L.S.'s mother testified that L.S. was disheveled, seemed dazed, shocked and trembly. She also noticed a deep cut on L.S.'s left arm.

L.S. told her mother that defendant was "out" (released from prison) and that he had cut her with a razor. Her mother knew that defendant had been in jail, that L.S. was the one who had been responsible for his arrest (on unrelated theft charges), and that defendant was angry about it. Her mother described her daughter's relationship with defendant as a violent one. She gave L.S. the car keys. L.S. asked her mother not to call the police, stating that everything would be all right.

L.S. was treated at the hospital emergency room. Because she thought everything was going to "be all right," she told the doctor that she had cut her arm on the refrigerator. Dr. William Scrabogna testified that L.S. had a deep laceration on her upper left arm which required four sutures underneath the skin and an additional 11 stitches to close the skin.

After L.S. was treated at the hospital, she, defendant and the baby went to defendant's mother's house to get money. They then went to a park, drank beer and talked. L.S. thought that everything was going to be fine and figured that she would just do what defendant wanted. Eventually, they went back to L.S.'s apartment, where she called her mother at about 3 p.m. and told her that she would pick her up from work. However, L.S. never picked her mother up and at approximately 6:30 p.m.,

her mother found another ride home. When her mother entered the apartment, she and L.S. got into a heated argument. Apparently, an upstairs neighbor called the police.

At approximately 7 p.m., Detectives Kenneth Kennedy and Lance Rowland of the Ocean Township Police Department responded to the call of a domestic dispute. They waited outside the apartment while other officers went inside. Just as an officer inside reported everything as calm, Kennedy and Rowland heard leaves rustling outside the apartment and saw defendant running from the apartment with no shirt, shoes or socks. They chased him for about one-quarter of a mile. When they caught him, they recognized him to be defendant and arrested him for violating a restraining order which was issued on March 10, 1986, enjoining defendant from returning to L.S.'s apartment and from contacting her.

Over defendant's objection, L.S., her mother and police testified to prior violent acts which defendant committed upon L.S.. For example, L.S. testified that she had gotten a restraining order against defendant because of fights and because they were no longer able to get along. L.S. had known defendant for only two days when he first hit her. On an average he hit her at least once a month. Sometimes L.S. called the police when she was hit.

D.S. confirmed the violence between L.S. and defendant, claiming that she, herself, had moved to Ocean Township from Red Bank to get away from defendant. D.S. also called the police five or six times when defendant refused to leave her premises. According to Detective Rowland, the police had been called to D.S.'s apartment in Ocean Township approximately nine times, due to disputes involving defendant.

After the police took defendant into custody, Detectives Kennedy and Rowland returned to D.S.'s apartment to take L.S.'s statement. She was very nervous, upset, emotional and crying. She told the police what had happened that day and

went to police headquarters to give a more complete written statement.

After L.S. gave her statement, Det. Rowland signed out a complaint against defendant. As defendant was being booked and processed, he asked the officer to tell him with what he was being charged. When Rowland told him, defendant's somewhat cocky response was, "She'll drop the charges." When Rowland told defendant that he, the officer, had signed the complaint and that the normal procedures would be carried through, defendant's attitude changed.

It was stipulated that after defendant was taken into custody, L.S. went to visit him in jail on at least 11 occasions. According to L.S., she took her son so that defendant could visit with him.

Defendant testified on his own behalf. Even though he had been in jail from March 16 to April 2, 1986, he claimed he was not angry at L.S. or her mother who were responsible for him being in jail. He claimed that L.S. had let him in the apartment on the morning of April 3. They started arguing about other women and, as L.S. tried to get away from defendant's embraces, she cut herself on a metal strip above the refrigerator handle. L.S. asked defendant to take her to the park for the day. Defendant first took her to the hospital and then got some beer before going to the park. They returned to the apartment at about 6:45 p.m. Defendant came inside the apartment at L.S.'s urging. When he heard the police come, he jumped out the window because he just found out that the restraining order had not yet been lifted. He claimed that L.S. had gotten the restraining order because she had been upset with him for coming home late.

Defendant admitted that he argued and had physical fights with L.S. in the past, but claimed that they were not really violent in nature. He admitted that L.S. had called the police on about seven or eight occasions over the course of their three and one-half-year relationship. He denied ever asking or persuading

her to drop any charges. Defendant also denied that he hit L.S. or threatened to hit her on the day in question. He did admit to searching her pocketbook and her dresser drawers, looking for phone numbers of people she might have been "messing with." He claimed that the screen in the bedroom had been slit earlier in the day when L.S. locked herself out of the apartment and climbed back in to get the baby's carriage.

On appeal, defendant raises the following issues:

I The admissibility and use of "battered woman syndrome" evidence in this type of case was inappropriate and, therefore, a reversible error.

II Even if [ State v. ] Kelly [97 N.J. 178, 478 A.2d 364 (1984)] is applicable here, expert's qualifications were severely lacking. It was an abuse of judicial discretion allowing ...


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