October 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 his residence, gave the police as evidence the sheets and blankets that had been on the bed. He then locked his home and returned to the hospital.
En route from the hospital to police headquarters, David began questioning Terry as to why she did not scream during the assault or disclose what had happened sooner. Terry's mother interpreted David's comments as unsupportive and ordered him out of the car. When he returned home, he found the front porch window open and the screen cut. Matt's belongings were gone.
Several days after the incident, Terry reported to the police that she had developed bruising on the inside of her left thigh. The police took photographs of the bruises, which were shown to the jury at trial.
At trial, Matt claimed that Terry had "come on to him" on the walk from the party to David's home. Thereafter, when Terry came to bed, she lay down in such a fashion that her pubic area rested on Matt's hand. He commenced to stroke her vagina while trying unsuccessfully to stimulate himself manually. Perceiving Terry to be responsive, he then pushed her underwear aside and performed cunnilingus on her, but stopped out of guilt and because he needed to urinate.
Forensic evidence presented at trial disclosed no seminal material or sperm on any of the swabs from the rape kit. Additionally, no seminal fluid was detected on the blanket or Terry's dress. However, seminal fluid or sperm was detected in a stain on the bed sheet and on a stain in the crotch area of Terry's underpants. DNA testing disclosed that David could not be ruled out as the donor of the fluid on the sheet; Matt could not be ruled out as the donor of the fluid on the underpants.
It was disclosed that Terry and David engaged in sexual intercourse three days before the events at issue. Whether the stains on Terry's underwear were from seminal fluid or saliva was unclear. One expert ruled out the presence of saliva; the other testified that the non-sperm cells found on Terry's underwear could have come from saliva.
Following deliberations, the jury convicted defendant of first-degree aggravated sexual assault. This appeal followed.
At trial, the State introduced as fresh-complaint evidence testimony by Terry's mother that, on July 1, when she and Terry were returning from the location of the party in Terry's car, Terry, after much urging, told her mother that, while in bed, she had felt someone on top of her, and when she opened her eyes, it was Matt, and he was having intercourse with her. Additionally, the State elicited from David as fresh complaint evidence the testimony that when he and Terry were in the living room after the incident at issue, she had told him that Matt "was on me," and later, while crying on the curb, she stated after considerable questioning that she had been raped. The trial judge gave no instruction at the time that the statements were introduced or at the conclusion of the trial that the jury could not use these hearsay statements as evidence of defendant's guilt or Terry's credibility. Defendant claims that the omission constituted plain error. We agree. State v. Macon, 57 N.J. 325, 340-41 (1971).
The model jury charge concerning fresh-complaint evidence contains the following cautionary language:
A fresh-complaint is not evidence that the sexual offense actually occurred, or that (name) is credible. It merely serves to negate any inference that because of (his/her) assumed silence, the offense did not occur. It does not strengthen (his/her) credibility. It does not prove the underlying truth of the sexual offense. A fresh-complaint only dispels any negative inference that might be made from (his-her) assumed silence.
As I have indicated earlier, [fresh-complaint] testimony was permitted for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that the sexual offense occurred nor proof that (name) was truthful. It merely dispels any negative inference that might arise from (his/her) assumed silence. It eliminates any negative inference that (his/her) claims of having been sexually assaulted are false because of (his/her) assumed failure to have confided in anyone about the sexual offense. [Model Jury Charges (Criminal) - Fresh Complaint (revised February 5, 2007) (emphasis supplied; footnotes omitted).]
Instead of giving this charge, the judge merely instructed, in relevant part:
The only reason that [fresh-complaint] evidence is permitted is to negate the inference that [Terry] failed to confide in anyone about the sexual offense. In other words, the narrow purpose of the fresh-complaint rule is to allow the State to introduce such evidence to negate any inference that [Terry] failed to tell anyone about the sexual offense and that, therefore, her later assertion could not be believed.
The judge thus informed the jury that the fresh-complaint rule had a "narrow purpose," but he did not specifically instruct the jury that hearsay evidence admitted pursuant to that rule could not be used as proof that the offense took place or that the victim was credible. We find this omission to be critical. As the Supreme Court stated in State v. Hill, 121 N.J. 150 (1990), although fresh-complaint evidence is permitted to negate the inference that the silent victim was not sexually assaulted, juries could misapply [fresh-complaint evidence], absent trial-court guidance, to mean that the fresh complaint is substantive evidence of the rape. In such a case, the fresh complaint rule would not only help the victim but also could result in prejudice against the defendant. [Id. at 163.]
As a consequence of the foregoing considerations, in State v. Bethune, 121 N.J. 137 (1990), the Court held that judges should inform juries of the limited role that fresh-complaint evidence plays in a trial, and the judge "should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent." Id. at 148. Here, that crucial aspect of the judge's instruction was omitted.
The State argues that the judge's error was immaterial because the contested hearsay statements were admissible as statements of present sense impression pursuant to N.J.R.E. 803(c)(1) or as excited utterances pursuant to N.J.R.E. 803(c)(2). We reject this position. First of all, our review of the record satisfies us that the State never sought to introduce the statement pursuant to either of these rules, and no consideration of the applicability of those rules took place.
Further, we find the two exceptions upon which the State relies to permit the introduction, at most, of only one of the three statements elicited by the State at trial. N.J.R.E. 803(c)(1) provides an exception from the hearsay rule to:
A statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate.
N.J.R.E. 803(c)(2) excepts from the hearsay rule:
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.
Terry's statement to David in the living room that he "was on me" arguably satisfies the requirements of both of these rules. See State ex rel. J.A., 195 N.J. 324, 338 (2008) (holding that the phrase "immediately after" in N.J.R.E. 803(c)(1) meant a "very brief time between the observation and the statement")*fn1 and at 340-41 (discussing admissibility under N.J.R.E. 803(c)(2)). However, neither of the other two statements qualifies for admission under either rule, because both were given after Terry had the opportunity to deliberate or fabricate. See State v. Branch, 182 N.J. 338, 365-67, 370 (2005) (determining a ten-minute delay provided a sufficient opportunity for deliberation); State v. Cotto, 182 N.J. 316, 327-31 (2005) (determining thirty- to forty-five-minute delay "undermined the trustworthiness" of the statements at issue). Terry's statement to David that she was raped occurred as much as thirty minutes after the event and following extensive questioning by David in the presence of Matt to which Terry had declined to respond. Terry's statement to her mother took place at a time that was even further removed from the event, and again was elicited only with great difficulty.
This was a close case, the result of which turned almost entirely upon the jury's estimation of the veracity of the testimony of the two participants in the otherwise unwitnessed events, both of whom had consumed large amounts of alcohol just hours earlier. Forensic evidence tended to establish that a sexual encounter of some sort involving Matt occurred. Matt contended that he had engaged in a consensual act of cunnilingus; Terry contended that what had taken place was nonconsensual sexual intercourse. While Matt had no support other than his own testimony for his version of events, because the judge permitted the introduction of fresh-complaint evidence without providing proper limiting instructions to the jury, Terry's version of events was improperly buttressed by the testimony of both her mother and David. As a consequence, we find a reasonable doubt to exist as to whether the error led the jury to a result it would not otherwise have reached. Macon, supra, 57 N.J. at 336. For that reason, we reverse.