March 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL DEEMI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 09-04-00168.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Fisher and Baxter.
Defendant was charged with and found guilty by a jury of engaging in sexual relations with a person detained in an institution over whom defendant had supervisory or disciplinary power, N.J.S.A. 2C:14-2c(2). Among other penalties and conditions, defendant was sentenced to a seven-year prison term.
Defendant appeals, presenting the following arguments:
I. THE TRIAL COURT COMMITTED PLAIN ERROR BY INFRINGING ON DEFENDANT'S RIGHT TO COUNSEL, CONFRONTATION, AND COMPULSORY PROCESS BY LIMITING COUNSEL'S OPENING STATEMENTS UNDER A MISINTERPRETATION OF THE RAPE SHIELD LAW.
II. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Not Raised Below).
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Days prior to the disposition date for this appeal, defendant moved for leave to file a pro se supplemental brief. We granted that motion, thereby permitting defendant to present the following arguments:*fn1
I. THE TRIAL JUDGE'S RAPE SHIELD RULING VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION.
II. THE TRIAL JUDGE ERRED IN ADMITTING DETAILED FRESH COMPLAINT TESTIMONY OF [A.B.].
III. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO INTERVIEW WITNESSES WHO WOULD HAVE SUPPORTED THE DEFENSE THEORY OF THE CASE.
IV. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
V. DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BECAUSE THE COURT FAILED TO CHARGE SEXUAL CONTACT AS A LESSER INCLUDED OFFENSE
(Not Raised Below).
VI. THE DEFENDANT'S RIGHT OF CROSS-EXAMINATION AND CONFRONTATION AND RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL WERE VIOLATED BY THE EXCLUSION OF RELEVANT EVIDENCE AND THE RESTRICTION OF CROSS-EXAMINATION ON RELEVANT MATTERS (Not Raised Below).
We find insufficient merit in all these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding the Rape Shield law, N.J.S.A. 2C:14-7, and the prosecutor's summation.
Evidence adduced at the trial revealed that K.S. -- a middle-aged female adult with an I.Q. between 52 and 64 and the judgment level of a seven or eight year old -- had been living in her own apartment but, in October 2008, was found to require greater supervision. She was placed by the Department of Developmental Disabilities (DDD) in a supervised apartment complex in Flemington. Defendant was employed as a Developmental Support Specialist (DSS); his duties included the monitoring and supervision of K.S.
In February 2009, K.S. advised a female DSS, who also supervised K.S., that she had sexual relations with defendant. As a result of the investigation that followed, defendant was questioned by a police detective and admitted having sex with K.S. on one occasion; defendant also acknowledged in this statement that he was K.S.'s caregiver while he worked as a DSS.
In Point I, defendant claims that the trial judge erred in applying the Rape Shield law, N.J.S.A. 2C:14-7, in a manner that limited his opening statement. The Rape Shield law generally precludes the admission of evidence or reference to "the victim's previous sexual conduct" in a prosecution for sexual assault. Ibid. When a defendant seeks to admit evidence of the victim's previous sexual conduct, the statute requires that the defendant "apply for an order of the court before the trial or preliminary hearing," except the motion may be made during trial if the evidence "is newly discovered and could not have been obtained earlier through the exercise of due diligence." Ibid.
Defendant did not move prior to trial for leave to admit evidence or for permission to refer, in his opening, to K.S.'s prior sexual conduct. The issue was first raised when, during his opening, defense counsel referred to K.S.'s "autonomy to make decisions with respect to relationships she's going to have." The State objected, arguing that defense counsel's statement violated the Rape Shield law.
The matter was explored out of the presence of the jury. Defense counsel argued that K.S. "has the ability to make decisions with respect to relationships, adult relations she has with men." After further discussion, defense counsel advised the court, in apparently acceding to the State's objection, that he would argue to the jury that K.S. had greater "autonomy" than the State argued in its opening. The prosecutor stated he had no objection to defense counsel making such a statement in his opening, and also that he would not object to references that K.S. was highly sexual when manic, but asserted that he would press the objection to any statement relating to K.S. having sexual relationships with others. Defense counsel then expressed an interest in telling the jury that K.S. has autonomy "to make decisions with respect to all of the different relationships of her life." The State continued to object and the judge observed that the "implication" of such a statement is "that you're talking about . . . sexual -- you know, who her sexual partners are going to be, that's what you have to get away from." Defense counsel did not press the matter further, stating he would "go with the objection [and] won't say anything more about it."
Defendant argues in this appeal that the trial judge improperly limited his opening statement and his ability to put on a defense. We find no merit in defendant's contention that he could argue in his opening statement about K.S.'s ability to make decisions about sexual partners. He has failed to demonstrate how such evidence had a bearing on his guilt or innocence. See State v. P.S., 202 N.J. 232, 261 (2010); 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). Defendant argues in his appeal brief that the evidence was relevant to "the quasi-consensual nature of the sex between [K.S.] and [defendant]," but has failed to show how this contention could not be pursued by evidence limited, as required in this instance by the Rape Shield Law, to demonstrating that K.S. had greater autonomy than what the State had asserted in the prosecutor's opening statement.*fn2
Defendant also argues that the prosecutor exceeded the bounds of propriety by vouching for the credibility of K.S. and other witnesses during his summation. Defendant has not, however, referred to any particular statement made by the prosecutor nor cited to the record in making this argument, contrary to the requirements of our court rules. R. 2:6-2(a)(4). This alone is cause for our rejection of the argument.
See Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). However, without defendant's assistance, we have examined the prosecutor's summation and find nothing inappropriate. Instead, for every argument, the prosecutor properly prefaced his comments with statements such as "if you accept" and "I submit to you," suggesting to the jury that he was only arguing what the evidence reflected and not conveying a personal belief in the truthfulness of the witnesses' testimony. The prosecutor's argument was entirely proper.