On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-795.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
At the conclusion of a non-jury trial, defendant Donald E. Robinson was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), for which the judge sentenced him to an eight-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following claims:
I. THE TRIAL JUDGE INCORRECTLY REFUSED TO ALLOW TESTIMONY OF A POSSIBLE MOTIVE FOR [THE] ALLEGED VICTIM'S ACCUSATIONS.
II. THE COURT'S RULING WAS NOT SUPPORTED BY THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
III. THE JUDGE DID NOT APPLY THE PROPER STANDA[R]DS PERTAINING TO CREDIBILITY OF THE EVIDENCE.
IV. APPELLANT'S TRIAL ATTORNEY'S FAILURE TO PROPERLY INVESTIGATE AND OBTAIN EXCULPATORY EVIDENCE ROSE TO THE LEVEL OF INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject the claims defendant advances in Points I, II and III and defer the ineffective assistance of counsel claim to the filing of a petition for post-conviction relief (PCR). We affirm.
Lorraine*fn1 began a romantic and sexual relationship with defendant in 1996. They lived together for four years, but their relationship came to a halt when defendant slapped Lorraine and she forced him to move out of her home. Although they eventually resumed their relationship toward the end of 2003, their relationship finally ended in March 2005, but they remained friends and often went fishing and crabbing together.
On August 20, 2005, defendant and Lorraine went crabbing in the morning and Lorraine drove to defendant's home at 7:00 p.m. for dinner, as the two had agreed. When Lorraine arrived, defendant was ironing. For the next two hours, she continued to ask him about dinner, and each time defendant insisted he would cook dinner as soon as he finished ironing. At 9:30, Lorraine decided to leave and told defendant she was going home.
Lorraine testified that at that point, defendant attacked her, pushed her into a chair, restrained her by holding her arms and removed her pants and underwear. He inserted his penis into her vagina and engaged in vaginal intercourse. Lorraine testified that she was crying and "begged him to stop, but he wouldn't. He wouldn't stop. He just wouldn't stop."
Afterward, Lorraine got dressed and planned to drive to an area hospital, but "got scared" because she believed the hospital would inform her adult son Michael*fn2 of what had happened. After driving only a few blocks, Lorraine turned around and returned home.
She immediately called her cousin, Alphonso "Ricky" Gregg, a Philadelphia police officer, to tell him what had happened. Lorraine told him she felt "[n]umb" and "dirty" and could not understand why defendant had raped her. Gregg repeatedly encouraged her to call police or go to the hospital, but Lorraine refused, believing either action would result in Michael learning what had occurred. Lorraine did, however, accept Gregg's advice to place her underwear in a brown paper bag and preserve it for DNA testing.
Gregg testified to the profound personality change he observed in Lorraine after the night of the assault. He testified that before August 20, 2005, Lorraine "was always a joking person. We used to laugh and joke on the phone all the time." But, according to Gregg:
[After the assault] it scared me in a way, because she started going through withdrawal symptoms. . . . [S]he would lock herself in the room, she didn't sound the same on the phone. She was like depressed, and I used to call her about . . . every day or once a week at least, call her and try to talk to her, because she started, you know, scaring me in a way . . . because she was really down. Her whole attitude and everything changed.
Lorraine also telephoned defendant's mother, Shirley Williams, whom Lorraine described "as a second mother" and informed Williams that her son had sexually assaulted her. Lorraine promised Williams that she would not report defendant's actions to police as defendant was Williams's sole caretaker. Lorraine described ...