On appeal from Superior Court of New Jersey, Law Division, Cape May County, 00-06-00286-I.
Before Judges Wefing, Wecker and Fuentes.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tried to a jury, defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2c; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court sentenced defendant to a ten-year term in prison for the first-degree conviction. All other terms were made concurrent and appropriate penalties and fines were assessed. After carefully reviewing the entire record in light of the contentions advanced on appeal, we reverse.
Defendant was thirty-one years old at the time of trial. He owned and operated a gymnastics business known as Tumbling with Spirit. Defendant is homosexual but until these charges were brought, he attempted to conceal that aspect of his life, apparently successfully. The State's theory of the case was that defendant was involved in an intimate relationship with one of his students, Jamie, which developed into a menage a trois with another student, John. After these charges were brought, defendant admitted his relationship with Jamie, who was more than eighteen years old, but denied he had ever had an intimate relationship with John. Rather, he said, Jamie and John had developed such a relationship between themselves.
Defendant met Jamie through the gymnastics program. Jamie began to take lessons at Tumbling with Spirit while a student at Cape May County Technical High School. He proved to be quite talented in gymnastics and competed at various national meets. He won more prizes than any other student at Tumbling with Spirit. He ceased being purely a student and began to teach as well. There was conflicting evidence introduced at trial as to Jamie's age when defendant and Jamie began their intimate relationship. Defendant insisted Jamie was eighteen; Jamie said he was younger.
John, who was several years younger than Jamie, was a student at the same high school. During the summer of 1999, John came to the gymnastics school. He spent some period of time at the school during that summer although he was never officially enrolled there. There was conflicting evidence whether, and to what extent, John participated in structured gymnastic activities during that summer period. Defendant insisted that the parents of all students who enrolled in the program execute a waiver of liability and there was trial testimony that John was unable to convince his parents to sign such a waiver. Eventually, his parents did sign the waiver in December 1999 and John officially enrolled thereafter.
According to the trial testimony, Jamie and John had an intimate relationship beginning in June 1999 when John was fifteen. Jamie told John that defendant was his boyfriend and asked John if he would like to participate with Jamie and defendant. John agreed. According to John, between late June 1999 and September 1999, the three engaged in three-way sexual encounters at defendant's apartment. John said he continued to engage in an intimate relationship with defendant through December 1999.
Between December 1999 and January 2000, John approached one of his high school teachers, Mr. Foley, and confided to him that he had been involved in a homosexual relationship with more than one person. Foley, in turn, spoke to the school nurse, who informed him that he was obligated to notify authorities. Foley returned to John to tell him. John then spoke to the nurse. He said he was involved in a sexual encounter with Jamie and his gymnastics coach and begged her not to tell anyone.
The nurse notified the authorities who then spoke to John. The police arranged for John to place a telephone call to defendant which they recorded. The conversation was extended. At various points, defendant denied there had ever been a sexual relationship between the two. He also stressed to John the necessity to protect himself from diseases, both those sexually transmitted and others. Within the telephone call, John spoke of an apparently intimate relationship he had with another student, Paul. The use of that telephone call, and the transcript prepared by the prosecutor, was one of the hotly-contested items at trial.
Defendant and Jamie were both arrested and indicted together on identical counts. Jamie, although also charged with first- and second-degree crimes, was eventually permitted to plead to lesser charges. He testified that he pled guilty to having a sexual encounter, presumably referring to criminal sexual contact, a crime of the fourth degree, N.J.S.A. 2C:14-3b, and to third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4. He was sentenced to two and one-half years on probation, one thousand hours of community service and community supervision for life. Although there was no requirement of such in his plea bargain, Jamie testified against defendant at trial.
Defendant testified on his own behalf. He said the nature of the community and his business interests led him to maintain secrecy about his homosexuality. He admitted his relationship with Jamie but maintained he had never engaged in any sexual activity with John. He said he knew John as a friend of Jamie's and had become friendly with him as a result but that it never progressed any further than that. He also presented a number of character witnesses.
On appeal, defendant raises the following arguments:
I. IMPROPER APPLICATION OF THE RAPE SHIELD STATUTE DEPRIVED THE DEFENSE OF FAVORABLE EVIDENCE, ALTERED THE EVIDENCE IN THE STATE'S FAVOR, AND DENIED THE DEFENDANT HIS SIXTH AMENDMENT RIGHTS
II. MULTIPLE LAYERS OF PROSECUTORIAL MISCONDUCT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS AND DIMINISHED THE JURY'S ABILITY TO ACCURATELY PERCEIVE THE EVIDENCE PRESENTED
(a) The prosecution improperly criticized or sought to discredit and penalize defendant for exercising his Sixth Amendment rights.
(b) The prosecutor improperly denigrated and ridiculed the defendant.
(c) By improper argument, the prosecution misled the jury on its legal"duty" and responsibilities.
(d) The prosecution fostered a false impression by stressing that [Jamie] was promised nothing for his testimony against Buscham
(e) Improper cross-examination of the character witnesses was an appeal to illegal and wrongful discriminatory stereotypes and prejudice, unworthy of our system of criminal justice.
III. UNDER THE RUBRIC OF"FRESH COMPLAINT EVIDENCE" THE COURT ALLOWED IMPERMISSIBLE HEARSAY TESTIMONY TO BE PLACED BEFORE THE JURY (NOT RAISED BELOW)
IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL RESULTED IN A MISCARRIAGE OF JUSTICE FOR DEFENDANT, JEFFREY BUSCHAM V THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO SUPPORT A CONVICTION OF"SUPERVISORY AUTHORITY" PURSUANT TO N.J.S.A. 2C:14-2a(2)(b).
We choose to deal with these contentions in an order other than that selected by defendant. We turn first to the question of"fresh complaint" testimony. During the trial, both John's teacher, Mr. Foley, and the school nurse, Ms. ...