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CARRIGAN v. ARVONIO

December 7, 1994

CHRIS CARRIGAN, Plaintiff,
v.
PATRICK ARVONIO, et al., Defendants.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 On October 6, 1994, this court denied the application of Chris Carrigan, petitioner, for a writ of habeas corpus. Presently before the court is petitioner's Rule 52(b) motion for the court to amend its judgment and for an evidentiary hearing.

 Rule 52(b) of the Federal Rules of Civil-Procedure provides that:

 
Upon motion of a party made not later than ten days after entry of judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly.

 Fed. R. Civ. P. 52(b).

 In this instance petitioner's motion was not filed within ten days after the entry of judgment as required by Rule 52(b); however, the court is satisfied that the procedural default in petitioner's motion is the product of factors external to petitioner, and thus will turn to the merits of his motion. For the reasons expressed below, petitioner's application for a writ of habeas corpus is granted, and it is ordered that petitioner receive a new trial.

 The facts of the case were fully set forth in this court's unpublished opinion of October 6, 1994. Briefly, then, petitioner was convicted in 1988 for aggravated sexual assault and related offenses, and sentenced to 30 years in prison with a fifteen-year parole disqualifier. Petitioner was convicted largely on the basis of the testimony of the victim, who is petitioner's adoptive sister. At the hospital after the alleged assault, genital, vaginal, oral and anal swab tests taken from the victim failed to reveal any evidence of spermatozoa. Further, pubic combings failed to result in a finding of hairs foreign to the victim. In addition, there was an absence of bruises, bleeding or tenderness in the genital area of the victim. An expert for the state testified that these negative findings did not necessarily lead to the conclusion that the victim had not been raped, because evidence of trauma is lacking in most rape cases.

 New Jersey Division of Youth and Family Services (DYFS) records relating to the victim indicate that she had in the past made several allegations of rape against other individuals. This court reviewed these allegations as described in the DYFS records and characterized them as "apparently dubious." See October 6, 1994, Op. at 16.

 In its October 6, 1994, opinion, this court found that petitioner's trial counsel had rendered constitutionally deficient performance by failing to investigate independently petitioner's pretrial claims that the victim had made false allegations of sexual abuse in the past, evidence of which was contained in the victim's DYFS records. This court then determined that petitioner suffered no prejudice as a result of such constitutionally defective representation, ruling that the decisions in State v. Mondrosch, 108 N.J. Super. 1, 259 A.2d 725 (App. Div. 1969), cert. denied, 55 N.J. 600, 264 A.2d 71 (1970), and State v. Hummel, 132 N.J. Super. 412, 334 A.2d 52 (App. Div.), cert. denied, 67 N.J. 102, 335 A.2d 54 (1975), and New Jersey Rules of Evidence 4, 22(d), 47 and 49 precluded the admissibility of such evidence. In Mondrosch, the court held that evidence that a prosecution witness had on prior occasions falsely accused certain persons of committing criminal acts was inadmissible as affecting credibility where the alleged conduct of the witness was not subject to a criminal conviction. The court in Mondrosch rejected defendant's assertion that the evidence was both an attack on the witness' credibility under Evidence Rule 22(d) and an attempt to establish a pattern of habit under Evidence Rule 49. Mondrosch, 108 N.J. Super. at 4. The court reasoned that Evidence Rules 22 and 47 prohibit, as a method of proving character, the introduction of evidence of specific instances of conduct not the subject of a criminal conviction. Id. ; see N.J.R.E. 22(d), 47; see also State v. Hummel, 132 N.J. Super. 412, 334 A.2d 52 (App. Div.), cert. denied, 67 N.J. 102, 335 A.2d 54 (1975).

 As the victim in this case was never charged for any crime relating to the accusations in question, this court ruled that "under Mondrosch, evidence of alleged prior accusations by the victim is inadmissible." October 6, 1994, Op. at 20.

 Since the court determined that petitioner had suffered no prejudice, it ruled that petitioner was not entitled to habeas relief. Id.; See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

 Petitioner now asserts that N.J.S.A. 2C:14-7, New Jersey's rape shield law, and the cases exploring that law support the admissibility of such evidence of prior false allegations of sexual abuse in this context. Neither petitioner nor respondent Monmouth County Prosecutor ...


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