On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Ind. No. 1116-07-2004.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2005
Before Judges Wefing, Wecker and Graves.
In this case we must decide whether the State can be compelled to provide defendant Marquis Gilchrist with a photograph of M.C., an adult female he allegedly raped. On March 15, 2005, the trial court considered defendant's motion "for an order directing the prosecutor to provide the defense with a photograph of the complaining witness, . . . pursuant to court Rule 3:13-3(c), the Sixth Amendment of the U.S. Constitution, and Art. 1, ¶ 10 of the New Jersey Constitution." The trial court granted defendant's motion but stayed the order pending the State's interlocutory appeal. We now reverse.
On November 20, 2003, at approximately 3:30 a.m., M.C. noticed a shadow in her bedroom and realized that someone was there. The intruder, a man, jumped on her, made her face the floor, and he threatened her with a weapon. He wrapped a shirt around her eyes and tied her hands behind her back. After searching for items to steal from M.C.'s apartment, the intruder told M.C., "you have no money so I have to take something from you." He then vaginally penetrated the victim. M.C. felt semen fall on her stomach, and she wiped it off with a blanket from the bed after her assailant left through the bedroom window.
According to M.C., while the incident was taking place the man told her:
Ok, so I know everything about you and I went through your stuff, I know where you work, I went, I know where you live I've seen you, I've seen you, and I don't want nobody to know about this, and if I know that you ya know told anybody ya know they need time [to] get a warrant to get me so I'm gonna come back and get you. I'm gonna kill you if I know that somebody knows about this. I will kill you.
A few days later on November 24, 2003, defendant was arrested for allegedly burglarizing a home in the area where M.C. resided. At the request of the police, defendant voluntarily provided a DNA sample. Defendant's DNA sample matched the DNA samples taken from the blanket that M.C. used to wipe the semen off her stomach after she was sexually assaulted.
A Hudson County Grand Jury indicted defendant on the following charges: three counts of aggravated sexual assault, kidnapping, burglary, and criminal restraint. Defendant is presently in custody. There are two other indictments pending against defendant charging him with burglary and robbery. M.C. has since moved from the apartment where the assault occurred.
Defendant's "motion for further discovery" requested a photograph of M.C. to assist defendant in preparing his legal defense. Defendant's brief in support of his discovery motion stated: "In order to prepare to cross-examine [M.C.] at trial, it is essential that Mr. Gilchrist see her photograph before trial as part of the defense investigation. . . . [P]osing for a photograph imposes no material burden on [M.C.], who will have to confront Mr. Gilchrist in person at trial; not providing Mr. Gilchrist with a photograph will for a certainty impair Mr. Gilchrist's ability to prepare his defense."
The State advised the trial court that it would have complied with defendant's request if the victim did not object. But when M.C. was contacted by the prosecutor's office, she "expressed overwhelming fear that the giving of a photograph to the defendant would make it easier for the defendant to fulfill his earlier threats to find her and kill her. She was relieved to hear that defendant had forgotten her face." As a result of this conversation, the prosecutor's office opposed defendant's application.
No testimony was taken prior to the entry of the order under appeal. Defendant's attorney told the trial court that defendant knows the name and address of the alleged victim, but he "does not know what the lady looks like." Defendant argued it is "essential" to obtain a ...