On appeal from the Superior Court, Law Division, Somerset County.
Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D.
After a jury trial, defendant James G. Budis was convicted of two counts of sexual penetration on T.D., a child of less than thirteen years of age, contrary to N.J.S.A. 2C:14-2(a)(1). He was sentenced to concurrent custodial terms of fifteen years on each conviction. An appropriate Violent Crimes Compensation Board penalty was also imposed. Defendant appeals, claiming that the following errors warrant reversal:
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURT'S PREJUDICE.
THE DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF INCRIMINATION WAS VIOLATED BY THE INTRODUCTION INTO EVIDENCE OF HIS PRETRIAL STATEMENT.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE DEFENDANT SHOULD BE ADMITTED TO BAIL PENDING APPEAL.
We have carefully reviewed this record in light of the claims advanced by defendant and conclude that defendant was denied a fair trial because of an interpretation of N.J.S.A. 2C:14-7 which precluded admission of crucial defense evidence. Accordingly, we reverse and remand for a new trial. This ruling renders moot the remaining issues raised in defendant's brief.
In May 1988, T.D., who was then 10 years old, was playing a Nintendo game with a relative. The game featured two characters boxing. While playing the game, T.D. commented that it looked like one of the characters "was sucking the other guy
off." This comment was reported to her father, who confronted T.D. in order to discover where she had heard of such a thing. In response, T.D. mentioned the names of her former stepfather, H.D., and the defendant. The father, in turn, made a report to the Division of Youth and Family Services, which contacted the Somerset County Prosecutor.
An investigation was conducted by a detective from the Somerset County Prosecutor's Office, who met with T.D. and taped two statements. In the first statement, T.D. said that defendant, who is her father's cousin, was visiting on an evening in July 1987, when the family went swimming in the apartment complex pool at night. According to T.D., defendant took her back into the apartment to get changed, and once inside he placed his erect penis in her mouth and her vagina, but that nothing came out of his penis. She said that a few days later the family went to Dorney Park for her brother's birthday. Defendant went with them and slept over. During the night, he came into her bedroom and once again placed his erect penis in her mouth and her vagina.
The second statement referred to T.D.'s former stepfather, H.D. In her statement, T.D. said that on five or six occasions during the fall of 1986 while they were living in the same household, H.D. took her into his bedroom at night and placed his erect penis in her mouth and her vagina. She said that he did this for about an hour at a time, but that nothing came out of his penis. Upon questioning, H.D. admitted to three sexual encounters with T.D. He was indicted and subsequently pled guilty to one count of sexual assault and one count of aggravated sexual assault. He has since been sentenced.
On May 25, 1988, the detective sought to question the defendant about T.D.'s allegations. Defendant acknowledged that two sexual encounters with T.D. occurred during the previous summer but differed with T.D.'s description of the events. Defendant said that on the occasion of T.D.'s brother's birthday, he slept on the couch. Shortly after he went to sleep, he
awoke to find that T.D. had taken his penis "out through the side of my shorts and was jerking me off and then started licking and kissing" it; he pushed her away after "maybe five minutes at the most." Defendant said that on the other occasion, when he visited the apartment complex to go swimming, he went into the apartment by himself to get changed. When he had "stripped down", defendant noticed T.D. was behind him; she grabbed his penis and testicles and began to stroke and kiss them for about a minute. Defendant said that "[a]t that point, it felt good." On both occasions, defendant had an erection but did not ejaculate. Defendant said that he warned T.D. not to do anything like this again or he would have to tell her father. Defendant subsequently was arrested and indicted on two counts of sexual penetration in violation of N.J.S.A. 2C:14-2a(1).
At trial, the testimony of T.D. was essentially the same as her prior statements to the police. When defendant was confronted on cross-examination with his prior inculpatory answers, he gave these explanations. He said that his statement that what T.D. did to him after they went swimming "felt good" meant that "it didn't hurt." He also said that his description of what T.D. did when he woke up on the couch as lasting "maybe five minutes" was a figure of speech; it actually was only a few seconds before he pushed her away.
During discussions outside the presence of the jury, defense counsel indicated that he needed to elicit testimony as to the prior sexual abuse to which T.D. had been subjected by her stepfather in order to show sexual knowledge for the purpose of preventing the jury from dismissing outright defendant's testimony that a child would be inclined to initiate sexual contact. The trial judge ruled that the rape shield statute (N.J.S.A. 2C:14-7) precluded the admission of the evidence:
First of all I -- I do not agree with the contention of defense counsel that you can show as to a child that which you couldn't show as to an adult woman. That to me is absolutely beyond belief. If an adult engaged in each of these alleged acts with an adult male, you could not show it in a charge of aggravated
sexual assault involving another and distinct different, different person. You would not be permitted. And it's urged to me that you should be permitted to do it with a child.
First of all, I will not permit any examination of this child with respect to any sexual activity other than the sexual activity charged in this indictment. Either by direct examination or cross-examination.
I will permit the examination of the detective within the limited area, to wit, did he investigate allegations of sexual abuse by her stepfather. And I will not permit the details of those -- that alleged sexual abuse to be brought before this jury.
Defense counsel cross-examined T.D. on how she responded to her father's inquiry as to ...