On appeal from the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue raised in this appeal is whether the trial court properly applied the Rape Shield Statute, N.J.S.A. 2C:14-7, in excluding evidence of the victim's past relationship with defendant, Anderson Garron.
A Cumberland County grand jury indicted Garron for first-degree aggravated sexual assault, third-degree aggravated criminal sexual contact, and second-degree official misconduct as a result of an encounter on September 28, 1998, between the victim, J.S., and Garron. The precise nature of that encounter was sharply contested by J.S. and Garron at trial. J.S. asserted that Garron raped her, whereas Garron claimed that the two engaged in a consensual sexual act. The history of the relationship between J.S. and Garron became the central focus of the pretrial proceedings and the trial itself.
J.S. worked in the Cumberland County Prosecutor's Office from 1992 until March 1997. Garron's wife, Stephanie Garron (Mrs. Garron) was a detective in the prosecutor's office during that period. Garron was a City of Bridgeton police officer. While J.S. was employed at the prosecutor's office, she saw Garron several times every month when Garron visited his wife.
In support of his consent defense, Garron sought to introduce testimony concerning J.S.'s conduct toward him in the years leading up to what he claims was a voluntary sexual encounter. In accordance with the Rape Shield Statute, the trial court conducted a pretrial hearing to determine the admissibility of the evidence concerning the relationship between J.S. and Garron. The nature of the relationship was graphically detailed through the testimony of five witnesses: Garron, his wife, and three of J.S.'s former colleagues from the prosecutor's office.
Garron, his wife, and two of the employees from the prosecutor's office testified to J.S.'s open flirtation with Garron when he visited his wife at the prosecutor's office. They also testified that J.S. would repeatedly grab, hug, and touch Garron, and brush herself, and her "breast and butt," against him. On one occasion, according to these witnesses, J.S. grabbed Garron's buttocks as he was walking up the steps to the Prosecutor's Office. In addition, J.S. made bold comments, seemingly in jest, which suggested J.S. had designs on Garron. As examples, J.S. would state that Garron was too good to his wife; that she, J.S., would like a white man like him; and that he needed someone like J.S.
Garron testified that when J.S. was leaving the prosecutor's office in March 1997, she took him aside and gave him a passionate kiss. Garron also testified that J.S. gave him another passionate kiss in July 1998, after he had helped J.S. resolve a bench warrant that had been issued in her name for a traffic summons.
Barbara Carney, another employee at the prosecutor's office throughout J.S.'s tenure, claimed that she did not see J.S., Garron, and Mrs. Garron together very often. Carney did not recall ever seeing J.S. touch Garron or ever discussing Garron with J.S. or Mrs. Garron. At trial, however, Carney testified that J.S. told her that Garron had visited her home in the summer of 1998. Two months before the incident, J.S. had asked Carney whether the Garrons were separated, and Carney confirmed that they were.
The trial court determined that Garron had presented clear and convincing evidence to dispel the presumption under N.J.S.A. 2C:14-7b against submitting evidence of J.S.'s sexual conduct more than one year before the alleged sexual assault. The trial court ruled, however, that only three of the alleged incidents would be admissible at trial: that J.S. had grabbed Garron's buttocks in 1995 or 1996; that she had kissed him passionately in March 1997 on her last day of work at the prosecutor's office; and that she had kissed him similarly in July 1998 after he helped her to resolve the bench warrant. The court decided that the remainder of J.S.'s conduct was "flirtatious," rather than "sexual," and was therefore not probative of whether she might have actually consented to perform oral sex on September 28, 1998. The trial court also concluded that the excluded testimony did not specify with sufficient particularity the dates that the alleged hugging and flirting occurred. As a result, the two employees of the prosecutor's office whose hearing testimony corroborated that of Garron and his wife did not testify at the trial.
According to J.S.'s trial testimony about the encounter on September 28, 1998, she was getting ready for her 4:30 a.m. shift at the prison when she heard a knock at the back door. Garron was at the door, on duty, and in uniform. He informed J.S. that he noticed a light on inside her car, and he wanted to make sure everything was "okay." After inspecting the car together, J.S. concluded that her son had probably left the light on while playing in the car. Garron remarked that the car of J.S.'s boyfriend was not in the driveway, and J.S. replied that she had "kicked him out." Garron followed J.S. back into the laundry room, uninvited, and asked, "Don't I get a hug for this?" J.S. hugged and thanked Garron. When he attempted to kiss her, J.S. resisted, telling him that she knew his wife and did not want to do this. Garron grabbed J.S.'s shoulders, and said "Look, I want to see what I been missing all this time." He then pressed her down to her knees, exposed himself, removed his duty weapon from its holster, and placed it within arm's reach on a nearby dresser. J.S. noticed that the gun's red laser-sight shone against a wall and stopped protesting. She believed this meant the gun was fire-ready, and just needed one little nudge to shoot. Garron tapped J.S.'s lips with his penis, and she put it in her mouth. At one point, she attempted to back away and stand up, but Garron told her "to get back down there." She did, and kept her eye on the gun, making sure it was in the same spot. When Garron "finished himself off," he said, "This is going to be our secret, right?," and left. J.S. did not immediately report the incident, for fear of retaliation. She disclosed the incident to two co-workers at the prison approximatelyeight hours later, and reported the incident to law enforcement authorities the following morning.
As to prior sexual conduct with Garron, J.S. stated that she had never touched him anywhere on his body in a sexual way before the kiss of July 16, 1998. She claimed that Garron initiated that kiss and put his tongue into her mouth, and that she was "shocked." She denied ever touching Garron's buttocks, and insisted that the alleged "goodbye" kiss never occurred, and that Garron merely kissed her on the cheek "like everybody else did" at her going-away party. Finally, J.S. noted that she had filed a tort claim against Garron and the City of Bridgeton as a result of the incident, and that she was seeking "punitive damages."
When Garron was arrested, he admitted he had had oral sex with J.S., but insisted it was consensual. According to his trial testimony, J.S. invited him in after they had inspected the car together, and said that he deserved a hug and a kiss for this, too. As they kissed, J.S. stroked his groin through his trousers, unzipped his pants, and exposed his penis. She then slid down in front of him and began to perform oral sex. As J.S. unfastened his uniform belt, Garron's trousers and the attached tools began falling to the floor, so he removed his gun with his right hand and laid it on a nearby surface to his right. Garron did not recall or believe that the laser-sight of the gun was activated because the switch for that function was on the right side of the weapon, and he would have laid the gun down on its left side. When J.S. finished, they kissed, and she whispered that "it was her turn." Garron said, "I'll have to owe you one," dressed, and left.
At the urging of defense counsel, and over the State's objection, the trial court refused to charge the jury on the lesser-included offenses of sexual assault and criminal sexual contact. The court reasoned that the only evidence of physical force or coercion causing J.S. to submit to the sexual acts was her fear of Garron's service revolver. The jury was thus charged strictly pursuant to the indictment and returned a guilty verdict on each count. The trial court sentenced Garron to an aggregate term of eleven years of imprisonment, with an 85% No Early Release Act parole disqualifier. The court also sentenced Garron to Megan's Law reporting requirements.
In an unreported split decision, the Appellate Division affirmed the convictions and remanded for amendment to the judgment to reflect Garron's mandatory forfeiture of public office and debarment from future public employment for official misconduct. The Appellate Division majority concluded that even though the trial court described the excluded evidence of J.S.'s prior conduct as "flirtatious,... not sexual," that evidence was properly excluded as non-probative "sexual conduct" because it was not specific enough to be probative of whether a reasonable person would have believed that J.S. freely and affirmatively consented to the conduct of September 28, 1998. The majority reasoned that even if the exclusion of the evidence was an abuse of discretion, it was harmless because the jury had been made well-aware of J.S.'s prior sexual advances toward Garron through the admission of evidence concerning the alleged buttocks grabbing and the two passionate kisses. The majority also held that the trial court's failure to charge the lesser-included offenses proposed by the State was invited, and not plain error.
Judge Wecker dissented, finding that the proposed testimony concerning J.S.'s prior flirtatious conduct was erroneously excluded. Judge Wecker explained that whether or not such evidence fell under the Shield Statute, it was highly relevant and material to the delicate weighing process on the credibility of Garron and J.S. as to consent, and it had no potential for invading J.S.'s privacy or for unduly prejudicing or confusing the jury. Judge Wecker viewed the trial court's ruling as censoring from the jury critical evidence that had a significant potential of altering the outcome of the case.
Defendant appealed to the Supreme Court as of right, based on the dissent.
The excluded evidence of J.S.'s conduct was relevant and necessary for a fair determination of the witnesses' relative credibility on the ultimate issue of consent. Because the exclusion of that evidence was clearly capable of producing an unjust result, Garron is entitled to a new trial. At the new trial, the jury must be instructed on the lesser-included offenses.
1. New Jersey's Rape Shield Statute restricts a defendant's ability to introduce evidence of the victim's prior sexual conduct. The Statute sets forth the limited circumstances in which evidence of a victim's previous sexual conduct is admissible in the prosecution of a sexual assault case. The trial court must determine whether the evidence falls within one of the few exceptions to the general rule prohibiting the use of the victim's prior sexual conduct. The exception that is relevant to the defense of consent provides that evidence of the victim's prior sexual conduct with the defendant is relevant "if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of." N.J.S.A. 2C:14-7d. However, the Shield Statute only permits the use of evidence of priorsexual conduct if that evidence is "highly material" and its probative value "substantially outweighs" its collateral nature or the probability of undue prejudice, confusion, or unwarranted invasion of the privacy of the victim. Moreover, in the absence of clear and convincing proof to the contrary, such evidence occurring more than one year before the date of the offense charged is presumed to be inadmissible. (pp. 20-26)
2. The Court mu st review the jurisprudence of the Confrontation Clause and Compulsory Process Clause to determine whether they compel the admission of evidence that would otherwise be barred by the Shield Statute. A criminal defendant has the right to confront, to cross-examine, and to produce witnesses to elicit favorable testimony before the trier of fact. These rights, however, may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials. In State v. Budis, 125 N.J. 519 (1991), this Court addressed the interplay between the Rape Shield Statute and the Confrontation Clause regarding the admissibility of evidence of prior sexual conduct. The Court held that if evidence is relevant and its probative value outweighs its prejudicial effect, that evidence may not constitutionally be excluded. Stated a different way, if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled. An unconstrained reading of the Statute leads to the exclusion of prior sexual conduct unless it is highly material and its probative value substantially outweighs its prejudicial effect. That formulation of the Shield Statute would keep from the jury evidence that is admissible under the constitutional standard enunciated in Budis. The Court must construe the Statute so that its reach does not exceed its constitutional limits, and reaffirms the test advanced in Budis. Evidence that is relevant and necessary to prove the defense of consent is not excluded under the Shield Statute. (pp. 26-33)
3. Applying these principles to the facts, the Court notes the varying interpretations that may be ascribed to J.S.'s remarks and physical conduct in reference to Garron. The Court is of the view that the jury was particularly well suited to divine the true meaning of the language and conduct of J.S. The trial judge, however, permitted only fragmented pieces of this evidence to be presented. This did more than distort the true picture of events leading to the sexual encounter - it made it less likely that the jury would believe any part of the defense of consent. Without the testimony of seemingly disinterested witnesses employed in the prosecutor's office, it was less likely the jury would believe that J.S. passionately kissed Garron and grabbed his buttocks, and that in turn made it less likely that the jury would find believable Garron's consent defense. The untidy details of Garron's relationship with J.S. were essential to understanding his side of the story. Selectively editing those details, as the trial court did here, did not advance the truth-seeking function of the trial. (pp. 33-38)
4. The Court disagrees with the Appellate Division majority's holding that all of the excluded evidence was "sexual conduct" within the meaning of the Shield Statute. Nonetheless, it is not necessary to itemize which remarks and conduct were flirtatious or which were sexual, because the Court concludes that whatever the characterization, the evidence was relevant to and necessary for a fair determination of the issues. The Court also holds that the excluded evidence of J.S.'s alleged prior conduct with Garron was sufficiently described at the hearing so as to allow a reasonable opportunity for the State to prepare for trial and for the trial court to determine whether the evidence offered was sufficiently probative of consent to meet the requirements of the Shield Statute. (pp. 38-42)
5. The trial court agreed not to instruct the jury on the lesser-included offenses of sexual assault and sexual contact based on defense counsel's objections. Garron now claims the court committed reversible error by following the very strategy he pressed at trial. The State contends that Garron is barred from taking a position on appeal that is inconsistent from the one advanced before the trial court. In light of the Court's reversal based on the exclusion of evidence, the Court need not decide whether Garron would be entitled to a new trial on this issue. The Court does conclude, however, that the lesser-included offenses should be charged at Garron's new trial. Trial courts have an obligation to see that justice is done, and that a jury is instructed properly on all clearly indicated lesser-included offenses, even if at odds with the strategic considerations of counsel. (pp. 42-47)
Judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division for a new trial.
JUSTICE COLEMAN has filed a separate, dissenting opinion, expressing the view that the Court's holding is retrogressive and does not implement the Legislature's intent as expressed under the Rape Shield Law.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA and ZAZZALI join in JUSTICE ALBIN's opinion. JUSTICE COLEMAN, has filed a separate, dissenting opinion. JUSTICE VERNIERO did not participate.
The opinion of the court was delivered by: Albin, J.,
A jury convicted defendant of aggravated sexual assault, rejecting his defense that the victim consented to have sexual relations with him. In a split decision, the Appellate Division affirmed. We must determine whether the trial court properly applied the Rape Shield Statute, N.J.S.A. 2C:14-7, in excluding evidence of the victim's past relationship with defendant. Defendant claims that the excluded evidence would have explained the events leading to the sexual encounter and to the victim's consent and, therefore, was critical to a fair trial. The State claims that the victim's prior conduct did not possess sufficient probative value on the ultimate issue before the jury, whether defendant forced the victim to perform a sexual act against her will. In these competing arguments are found the tension between defendant's right to confrontation and the compulsory process of witnesses, and the victim's right to be free from an unnecessary invasion of her privacy. We conclude that the trial court misapplied the Rape Shield Statute in keeping from the jury highly relevant evidence that was necessary for a fair determination of the case and, therefore, reverse and remand for a new trial. We also conclude that at the new trial, the court must charge the jury with any lesser included offenses that are clearly indicated by the evidence, even in the face of objections by the defense or the State. A jury cannot be denied the opportunity to find guilt on a lesser-included offense as a result of the strategic posturing of the parties.
A Cumberland County grand jury indicted defendant Anderson Garron for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4), third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, and second-degree official misconduct, N.J.S.A. 2C:30-2a, as a result of an encounter on September 28, 1998, between the victim, J.S., and defendant. The precise nature of that encounter was sharply contested by J.S. and defendant at trial. J.S. asserted that defendant raped her, whereas defendant claimed that the two engaged in a consensual sexual act. The history of the relationship between J.S. and defendant became the central focus of the pretrial proceedings and the trial itself.
J.S. worked as a secretary in the Cumberland County Prosecutor's Office from 1992 until March 1997, and then became a communications operator at Southern State Prison. During that period, defendant was a City of Bridgeton police officer, and his wife, Stephanie Garron (Mrs. Garron), was a detective at the same prosecutor's office. While employed at the prosecutor's office, J.S. saw defendant several times every month when he visited his wife. J.S. viewed her relationship with both Garrons as "friendly," until the day defendant "came to [her] house and... raped [her]."
In support of his consent defense, defendant sought to introduce testimony concerning J.S.'s conduct toward him in the years leading up to what he claims was a voluntary sexual encounter. In accordance with the Rape Shield Statute, the trial court conducted a pretrial hearing to determine the admissibility of evidence concerning the relationship between J.S. and defendant. N.J.S.A. 2C:14-7a, -7d. The nature of that relationship was graphically detailed through the testimony of five witnesses: defendant; his wife, Mrs. Garron; and three of J.S.'s former colleagues from the prosecutor's office.
Defendant testified that "every time" he visited his wife at the prosecutor's office J.S. would "flirt" with him. At times, "she would reach up around [his] neck and pull [him] down and give [him a] hug and brush herself against [him]." When they passed in the hallway, she would "bat her eyes" and "just smiling bump into [him]," and then as they engaged in conversation, she would "rub [his] arm or touch [his] chest." J.S. would tell defendant that he "spoiled [his] wife," that he "was too good to [his wife]," and that he "needed somebody like her." Additionally, she remarked that "she would like to have a white man like [him]" and that his wife "didn't deserve all the things she got." On one occasion, J.S. "grabbed [his] rear end" as he "was walking up the steps at the Prosecutor's Office." J.S. did not say anything, "she just kind of smiled." Much of J.S.'s conduct toward and banter with defendant was in the presence of other prosecutor's office employees, including defendant's wife. On her last day at the prosecutor's office in 1997, J.S. had defendant walk "to the corner of the building so [they] couldn't be seen from the front windows and she gave [him]" a "rather passionate kiss."
In the spring of 1998, defendant learned that a Fairfield Township bench warrant had been issued for J.S.'s arrest for failure to resolve a seatbelt violation summons. He went to J.S.'s house and told her that "she had a warrant out for a hundred bucks, to get it taken care of," and that she could post bail without having to be arrested. Several weeks later, when defendant discovered that the arrest warrant was still active, he returned to J.S.'s house to tell her "to get this thing taken care of." In the middle of July, defendant, while on duty, received a dispatch that J.S. was at the municipal building and "wanted to see [him]... to pay for the warrant." Defendant handled the paper work on the warrant and gave J.S. a receipt. Defendant described what happened next:
I stood up to walk her out and she says you know you deserve a big old hug and kiss for this because I didn't put her in jail. And she came over like she always did and put her arm around my shoulders and... kissed me again like the day she left work. And then she just kind of went hmmm. And that was it she left.
Approximately two weeks later, defendant was standing on the porch of the prosecutor's office waiting for his wife, when J.S. pulled up in her car. In response to a comment made by J.S., defendant said, "are you ready to have an affair now?" "Now that I don't have to look at your wife anymore, you're damn right," replied J.S. With that, defendant told her to give him a call. J.S. left just as defendant's wife came onto the porch. Defendant told his wife that she "better watch it, [J.S.] is ready to fool around."
Defendant's wife, Mrs. Garron, a detective at the prosecutor's office since 1989, testified about the flirtatious behavior between her husband and J.S. and J.S.'s "outrageous" conduct. Mrs. Garron described J.S. as a "touchy feely person." J.S. would always "grab" and "hug" defendant, and "touch" his face, arm, and chest. J.S. would have full body contact with defendant with her "breast" and "butt." J.S. was not discreet in the attention she lavished on defendant; her behavior was open and notorious. Over the years, J.S. would make bold comments to Mrs. Garron, seemingly in jest, that nevertheless suggested she had designs on defendant. J.S. told Mrs. Garron that "she was going to take [her] husband" and that "she was available" now that she was "in between husbands." She also remarked, "I'll take that man away from you if he spends just one night with me." J.S. thought nothing of stepping between Mrs. Garron and her husband, even in the presence of other people, and going on a riff: "[Y]ou don't need to talk to her,... you've got me.
You know if you were with me,... you'd throw rocks at her.... [W]hat do you want with that scrawny white girl." J.S. would often make suggestive remarks to defendant, such as, "I love a man in uniform, is that your gun or are you happy to see me." And she would constantly "give [defendant] a kiss, grab his arm, hold his hand, [and] literally try to pull him away." For her thirtieth birthday present, in 1996, J.S. announced that she wanted defendant: "They don't make men like [defendant] anymore. Where did you find [him]." Sometime in 1995 or 1996, Mrs. Garron learned, apparently from Barbara Carney, a secretary at the prosecutor's office, that J.S. had touched defendant's buttocks. Mrs. Garron confronted J.S., who did not deny the incident: "She laughed.... [a]nd she went into this little routine that she does and she said I'm sorry but... I was overwhelmed, you know, and she was fanning herself. It was right there in front of me[,] I had no choice."
On J.S.'s last day of employment at the prosecutor's office in March 1997, J.S., defendant, and Mrs. Garron were on the office porch together, and Mrs. Garron told defendant to kiss (assuming just a peck) J.S. goodbye: "I said the thorn in my side is gone... [Y]ou two don't ever have to see each other again." J.S. told Mrs. Garron to go in the building because "I got to kiss your husband goodbye. I'm never going to see him again." Mrs. Garron laughed and did go inside. When J.S. returned to the building, with a dramatic flourish, "she threw herself up against the wall" and fanned herself with her hand, saying, "that is some man.... [T]hat man can kiss. Whenever -- whenever you need to get rid of him you just send him my way girlfriend."
Mrs. Garron also recalled an incident after one of J.S.'s visits to the prosecutor's office in the summer of 1998. J.S. had been speaking with defendant and Carney on the porch, and Carney told Mrs. Garron as J.S. drove away, "you know [J.S.] says that she's going to have an affair with your husband now that she doesn't have to look at you every day." On another visit in September 1998, approximately three months after the Garrons had separated and two weeks before the alleged rape, J.S. spoke with Mrs. Garron on the porch of the prosecutor's office. J.S. "was down" and advised Mrs. Garron that "she needed to find a way not to work anymore" and "to find me a man."
Wendy Frost, a secretary at the prosecutor's office throughout J.S.'s tenure, gave testimony that corroborated to a large degree the accounts of defendant and his wife. In Frost's view, J.S.'s behavior "went beyond flirtation." Frost estimated that J.S. approached defendant every time he came to visit his wife at the prosecutor's office, which was as often as every other week. During defendant's visits, "[J.S.] would immediately get up from her desk" and "interact" with him, by "touching his shoulder, [and] grabbing his arm." When defendant talked with Mrs. Garron, "[J.S.] would get up and stand extremely close to [defendant]" and "make sure she brushed up against him." On those occasions, "she would grab his arm" and "touch his upper shoulder." J.S. constantly made inappropriate remarks, such as "if your wife's never around let me know.... I can take care of you." Frost recalled the remarks by J.S. that stood out most prominently in her mind. One day, Frost, Mrs. Garron, and defendant were out on the porch of the prosecutor's office smoking when J.S. appeared. With regard to Mrs. Garron's plans to visit her family in Virginia, J.S. commented that "she would have no problems going to see [defendant] while [Mrs. Garron] was away." Frost opined that Mrs. Garron had always taken J.S.'s behavior toward defendant "lightly," but not "as a joke." Though Frost was unable to give specific dates of the many incidents, her memory of them had not dimmed.
Terri Seay, another secretary at the prosecutor's office throughout most of J.S.'s tenure, also testified about J.S.'s "very flirtatious behavior" toward defendant. J.S. brushed her "breast area" against defendant's arm and chest on more than one occasion. It seemed that "every time [defendant] was [in the prosecutor's office] she would be somewhere around him." J.S. would go over to defendant and "put her arm on his arm" or "give him a hug" with her arms around his neck. J.S. said that "she liked a man in uniform." Seay had heard that on J.S.'s last day of work at the prosecutor's office, J.S. commented that she was free to "flirt with [defendant]" since she would no longer be working with Mrs. Garron. Nevertheless, Seay believed that J.S. and Mrs. Garron were "friends." Although the incidents occurred during J.S.'s tenure, Seay was unable to give specific dates between September 1992 and March 1997.
Carney, who worked at the prosecutor's office throughout J.S.'s tenure, claimed that she did not see J.S., defendant, and Mrs. Garron together very often. On those occasions when she did, J.S. just "act[ed] like herself.... always happy and talkative." Carney did not recall ever seeing J.S. touch defendant, or ever discussing defendant with J.S. or Mrs. Garron. At trial, however, Carney testified that J.S. told her that defendant had visited her home in the summer of 1998. Two ...