On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-0432.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2011
Before Judges Payne and Simonelli.
Defendant, M.A.W. (fictitiously, Matt), appeals from his conviction on one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7), for which he received a ten-year sentence subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and Megan's Law, N.J.S.A. 2C:7-1 to -23. On appeal, defendant makes the following argument: POINT I
THE TRIAL COURT FAILED TO CONTEMPORANEOUSLY CAUTION THE JURY AS TO THE LIMITED PERMISSIBLE USE OF FRESH-COMPLAINT EVIDENCE, AND COMPOUNDED THIS ERROR BY FAILING TO INSTRUCT THE JURY IN ITS FINAL CHARGE AS TO THE IMPERMISSIBLE USE OF FRESH-COMPLAINT EVIDENCE, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. 1, PARS. 1, 10. (Not Raised Below.)
Evidence at the trial of this matter would permit a jury to conclude that, on June 30, 2007, T.M. (fictitiously, Terry), then twenty-seven years of age, attended a party to celebrate her brother's return from Iraq. Also in attendance at the party was D.V. (fictitiously, David), Terry's boyfriend of six months, and David's long-time friend, Matt. All three consumed considerable amounts of alcohol at the party. At approximately 1:00 a.m. on July 1, Terry, Matt and David left the party and walked back to David's residence, which was located several blocks away. Although Terry had driven to the party in her car, she decided that it would be safer to leave the car where it was parked and to walk.
Once at David's house, the two men fixed themselves additional drinks and continued drinking, talking and smoking. Terry went to sleep, fully clothed, in David's bed. Thereafter, David gave Matt a blanket and pillow and directed him to sleep on the living room couch, where he had slept the prior night. David then went to sleep.
At approximately 4:00 a.m., Terry awoke to find that a man was having intercourse with her. Although she assumed the person to be David, it in fact was Matt, who quickly got up and went to the side of the bed. At this point, Terry roused David, asking him "What's going on?" "What is your friend doing in your room?" and "Get him out of here." When David asked Matt why he was in the bedroom and what had occurred, Matt invoked his friendship with David and said additionally, "Don't believe her."
Having gotten up within a minute, Terry went into the living room where she spoke briefly to David, telling him that Matt "was on me." She then left the house and called her mother, who set out for David's residence in a taxi. Terry sat on the curb, crying. When David and Matt also came outside, Terry initially refused to respond to David's questions as to what had occurred, but eventually stated that she had been raped.
Terry's mother arrived at the scene approximately thirty minutes after she was called. David was standing next to Terry, and Matt was pacing back and forth between the curb and the house. The mother placed Terry in the cab, and they returned to the location of the previous night's party to retrieve Terry's car, which Terry's mother then drove back to David's residence.
Upon questioning by her mother, Terry, who continued to cry uncontrollably, stated that all she wanted to do was to go home. However, she eventually told her mother what had occurred. On learning that she had been raped, Terry's mother insisted that Terry go to the hospital, which she did in the company of her mother and David. A medical examination disclosed that the vaginal opening appeared reddened and scraped. A rape kit was prepared. Additionally, the examining nurse took possession of Terry's dress and underpants. In the meantime, David, who had briefly returned to ...