On certification to the Superior Court, Appellate Division, whose opinion is reported at 254 N.J. Super. 332 (1992).
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the court was delivered by
Defendant was convicted of two counts of sexual assault, N.J.S.A. 2C:14-2c(1), and one count of criminal sexual contact, N.J.S.A. 2C:14-3b. The Appellate Division affirmed his conviction and sentence, 254 N.J. Super. 332 (1992). We granted defendant's petition for certification, 130 N.J. 13 (1992), to consider the admissibility of evidence of defendant's post-arrest suicide attempt and the related issue of the appropriate jury charge concerning that evidence. As in State v. Brunson, 132 N.J. 377,625 A.2d 1085(1993), also decided today, this case presents the question of the admissibility of defendant's prior conviction of a similar offense to impeach his credibility.
On August 8, 1990, the victim, D.M., reported to the Westwood police that defendant, her first cousin, had sexually assaulted her two days earlier. According to D.M., defendant entered the house while she was bathing in the second-floor bathroom. Defendant spoke to her from the first floor, and after a brief conversation he appeared at the open door of the bathroom. He commented on her physical development and began to fondle her breasts. Defendant then restrained D.M. by holding her legs, digitally penetrated her vagina, and engaged in an act of oral sexual contact. Subsequently, he carried the victim to her bedroom and forcibly engaged in sexual intercourse. Defendant then left the victim's home.
Shortly after his departure, the victim's sister and a friend arrived at the house. D.M. told them what had occurred. Two days later, D.M. told her mother about the assault. The victim's mother spoke to a rape-crisis-center counselor, who instructed D.M. to go to the hospital for an examination. While at the hospital, D.M. spoke with Investigator Petro of the Bergen County Prosecutor's Office about the incident.
Defendant was taken into police custody the following day. The arresting officer informed Investigator Petro that defendant had threatened to kill himself. As a result, Petro attempted to secure defendant during the interview by handcuffing one of defendant's hands to his chair. As Investigator Petro was informing defendant of his Miranda rights, Detective Wozener observed a piece of metal in defendant's free hand. Defendant cut his wrist with the metal and attempted to make a second cut, but the officers seized the piece of metal and restrained defendant. Defendant was then taken to Bergen Pines County Hospital for psychological observation.
The Bergen County Grand Jury returned a four-count indictment, charging defendant with three counts of sexual assault in violation of N.J.S.A. 2C:14-2c(1) and one count of criminal sexual contact in violation of N.J.S.A. 2C:14-3b. After a pre-trial hearing, the court ruled admissible for impeachment purposes defendant's prior conviction for sexual assault.
During the trial, the State sought to elicit from Investigator Petro testimony regarding defendant's attempted suicide. Out of the hearing of the jury, defense counsel argued that because defendant had a pre-existing propensity to commit suicide, defendant's attempted suicide while in custody was not probative of guilt. According to defense counsel, defendant had feigned suicide in an effort to prevent the police from extracting a false confession. The State contended that defendant's attempted suicide was analogous to flight and therefore probative of guilt. Defense counsel responded that because of defendant's preDisposition to commit suicide, his post-arrest suicide attempt was consistent with a prior history of emotional disturbance and therefore did not imply consciousness of guilt. Replying to the trial court's inquiry about defendant's prior psychiatric history, the prosecutor observed that
every time he's been arrested -- he's been arrested on numerous occasions -- and on some of those occasions he's attempted to commit suicide when he's arrested. It is only my understanding, your Honor, that he has instructed numerous people that he is never going back to jail and that this was a suicidal attempt which resulted as a direct result of his being incarcerated, arrested and facing incarceration.
The trial court ruled admissible evidence of defendant's attempted suicide holding that "evidence relating to an accused's attempt to commit suicide after his arrest is admissible in a criminal prosecution as a circumstance tending to show consciousness of guilt in the mind of defendant." 244 N.J. Super. 484, 486-87 (Law Div. 1990). The court also ruled that defendant was entitled to introduce evidence to counter the inference that the suicide attempt was evidence of defendant's consciousness of guilt. Ibid. Investigator Petro then testified about the suicide attempt, noting that defendant's wounds were superficial. On cross-examination, Petro acknowledged that another investigator had spoken to defendant's therapist, who had confirmed defendant's previous suicidal tendencies.
Defendant testified on his own behalf, admitting his prior conviction for sexual assault but explaining that the prior offense involved consensual sexual contact with a minor who he had thought was over the age of consent. Defendant claimed that D.M. had seduced him and led him into her bedroom, but that no penetration had occurred. Defendant's testimony excluded any mention either of the suicide attempt or his prior history of suicidal episodes.
Both the State and the defense addressed the attempted-suicide evidence during their closing arguments. However, the trial court did not instruct the jury on the permissible use of that evidence. Neither the defendant nor the prosecutor requested such a charge and neither objected to its omission. At the State's request, the trial court supplemented its initial instruction to the jury with an explanation of the limited purpose for which prior conviction evidence had been admitted. See N.J.S.A. 2A:81-12; State v. Sands, 76 N.J. 127, 147 (1978).
The jury convicted defendant of two counts of sexual assault and one count of criminal sexual contact. For the sexual-assault convictions, defendant was sentenced to concurrent ten-year custodial terms with a five-year period of parole ineligibility. The court imposed a concurrent eighteen-month custodial term for the criminal sexual contact. Defendant appealed, challenging the admission of the suicide attempt and prior-conviction evidence and alleging prejudicial error in the trial court's instructions to the jury. Defendant also challenged the admission of fresh-complaint evidence. Claiming that the verdict was ...