April 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2007
Remanded June 18, 2007
Resubmitted October 22, 2008
Before Judges Rodríguez and Lyons.
Following a jury trial, defendant P.L.M. was convicted of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and one count of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 14-2b. These charges stemmed from sexual assaults on three girls under the age of thirteen. One of the victims was A.M. Prior to trial, defendant moved to introduce evidence that during her examination, A.M. had informed Linda Jane Shaw, M.D., of "prior sexual partners" and "requested her sexual history be confidential from her grandmother." The judge denied defendant's motion to pierce the protection of the Rape Shield Law. N.J.S.A. 2C:14-7.
Following the trial, the judge denied defendant's motion for a new trial. The judge merged the lesser offenses with the first-degree aggravated sexual assault convictions, and imposed sixteen-year terms with a NERA*fn1 parole disqualifier on each of the offenses to run consecutively with each other.
On direct appeal, we affirmed in part, rejecting four of defendant's six challenges. State v. P.L.M., No. A-2368-05T4 (App. Div. June 18, 2007). We remanded to the trial court the conviction concerning abuse of A.M. to determine: (1) whether evidence of A.M.'s possible prior sexual history was improperly excluded by the trial judge; and (2) for a resentencing hearing pursuant to State v. Natale, 184 N.J. 458 (2005). However, the convictions arising from the abuse of the two other girls were affirmed.
On remand, the same judge that presided at trial held an N.J.R.E. 104 hearing. Dr. Shaw testified that during her second evaluation of A.M., the girl had indicated that she had "some prior sexual partners." The term "sexual partners" was Dr. Shaw's language, not how A.M. had described them. Dr. Shaw was not able to identify a time when those encounters took place. She did not discuss the specifics of what was involved in those encounters with A.M. Dr. Shaw was certain that A.M. had said that these contacts were with "boys," and there had been at least two.
In her physical examination of A.M., Dr. Shaw found some tearing of A.M.'s hymenal tissue, which could be attributed to blunt trauma to the tissue. According to Dr. Shaw, such tearing is rarely found in sexual assault cases involving menstruating females. It is far more likely to occur in younger children. Because A.M. had begun menstruating at age ten, the tearing of A.M.'s hymenal tissue was consistent with her allegations of sexual abuse beginning at age nine. According to Dr. Shaw, the fact that A.M. might have been having sex with other individuals did not change this finding.
A.M. testified that prior to defendant sexually assaulting her, she had not had sex with anyone else. She did not have a boyfriend at the time when Dr. Shaw examined her. A.M. denied having told Dr. Shaw of any sexual activity with anyone other than defendant, and insisted that any sexual activity she referred to during the examination was in reference to defendant.
On cross-examination, A.M. admitted that her grandmother had told her several times that she was going to have her examined by a doctor to see if she was still a virgin. These confrontations with her grandmother were upsetting to her. According to A.M., her grandmother found her diary, in which she described defendant's assaults on her. She specifically named him. However, there were no other boys' or men's names in the diary.
A.M.'s grandmother testified that she was concerned about the behavior of A.M. and her two younger sisters. She had never threatened to have A.M. examined to determine if she was still a virgin. On cross-examination, the grandmother testified that she did not recall finding A.M.'s diary.
On a continuation date of the remand hearing, defense counsel indicated that he interviewed a teenage boy who had been identified as possibly having had sexual relations with A.M. Defense counsel, however, learned from this boy that his sexual encounters with A.M. had taken place well after the time period A.M. stated defendant sexually abused her.
A.M. and her maternal grandmother also testified at the remand hearing.
The judge found there was insufficient evidence of any prior sexual history to warrant piercing the Rape Shield Law, N.J.S.A. 2C:14-7. The judge determined that there was no basis for admitting at a trial the alleged revelation of "prior sexual partners" to Dr. Shaw. The judge concluded that nothing at the remand hearing warranted piercing the Rape Shield Law nor were there sufficient credibility issues to allow admission of the alleged A.M.-Shaw conversation regarding sexual partners. The judge denied a new trial. The judge reimposed the same consecutive sixteen-year term with a NERA parole disqualifier on the conviction involving A.M.
Following the remand hearing, defendant filed a new notice of appeal contending:
THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE RIGHTS BY EXCLUDING EVIDENCE REGARDING A.M.'S PRIOR SEXUAL EXPERIENCE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 10.
We disagree. In cases involving sexual assault, the Rape Shield Law, N.J.S.A. 2C:14-7, serves to presumptively excluded evidence relating to a victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). Any defendant seeking to introduce such evidence must apply for a hearing with the trial court to determine if the evidence could be admitted under other provisions of the law. Ibid. The Rape Shield Law does allow in prior sexual history when it relates to proving that another individual is the source of any physical evidence or when the evidence could negate the element of force. State v. Budis, 125 N.J. 519, 530 (1991);
Our Supreme Court has reviewed the scope of the Rape Shield Law on several occasions, including very recently in State v. Schnabel, 196 N.J. 116 (2008). The Court has held that the purpose of the law is to "protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant." Id. at 128 (quoting State v. Garron, 177 N.J. 147, 165 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004)). Furthermore, the law prevents the attempt to discredit a victim by presentation of past history that is irrelevant to the issues of a case. Ibid.
However, a defendant's right to confront witnesses under the Federal and State Constitutions require a limiting of the scope of the protection provided by the Rape Shield Law, otherwise those rights "would be . . . empty one[s] if the State were permitted to exclude competent, reliable evidence bearing on . . . credibility . . . when such evidence is central to the defendant's claim of innocence." Id. at 129 (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2147, 90 L.Ed. 2d 636, 645 (1986)). In light of the important constitutional rights of a defendant, a court "must balance competing factors to determine when the admission of prior sexual [activity] is appropriate." Id. at 130. On one side is the interest of the State in excluding the proposed evidence against the defendant's constitutional rights. However, when "evidence is relevant and necessary to a fair determination of the issues," the constitutional rights must prevail. Ibid. (quoting Garron, supra, 177 N.J. at 171).
Resolution of the issue turns largely on the judge's findings of fact. He found: (1) no proof of A.M. having been sexually active; (2) no proof that A.M. reported prior sexual partners to Dr. Shaw, other than what appears in the doctor's notes; and (3) the grandmother denied making any threats to A.M. regarding an exam for virginity. Given these findings, which are supported by the proofs and are thus binding on us, it is clear that the judge's ruling is correct pursuant to the Rape Shield Law. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).
The second contention is:
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION. We disagree.
After a careful review of the record we conclude that the sentencing factors identified by the judge are supported by the evidence. Johnson, supra, 42 N.J. at 162. The aggravating factors preponderate and justify the sentence imposed. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). We also conclude that the sentences comply with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); State v. Abdullah, 184 N.J. 497 (2005); and State v. Natale, 184 N.J. 458 (2005) (Natale II).