July 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN M. GORDET, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-05-0775.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges Grall, Alvarez and Skillman.
A jury found defendant John M. Gordet guilty of second-degree sexual assault involving the use of physical force or coercion, N.J.S.A. 2C:14-2c(1); third-degree terroristic threats, N.J.S.A. 2C:12-3b; and simple assault, N.J.S.A. 2C:12- 1a. The jury found him not guilty of first-degree kidnapping, N.J.S.A. 2C:13b(1)-(2), and two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3). The judge sentenced defendant to a nine-year term of imprisonment for sexual assault, which is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to concurrent terms of three years for terroristic threats and six months for simple assault.
On appeal defendant challenges his conviction and his sentence. He argues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENDANT FROM INTRODUCING EVIDENCE REGARDING STATEMENTS THE ALLEGED VICTIM MADE THAT COMPROMISED HER CREDIBILITY.
II. THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE TRIAL COURT FAILED TO APPLY THE APPROPRIATE MITIGATING FACTORS, AND MADE WRONGFUL FINDINGS REGARDING THE DEFENDANT'S PRIOR RECORD.
B.K. and defendant met on the night of December 5, 2007 at a party in an apartment in Brick, New Jersey. She was seventeen years old and defendant was twenty-seven. B.K. and her friends Corey, Traci, Annie and Bobby were invited to the party by Tony, a friend of Corey's whom they saw at a gas station. There were about fifteen people at the party, where there was dancing, card playing and drinking. B.K. had three or four beers and then a forty-ounce bottle of beer.
While Traci and B.K. were dancing together, defendant danced close to them. According to Traci when they first met defendant, B.K. had given her a "look" that Traci took to mean that B.K. was not "too fond of [defendant]." B.K. testified that she thought defendant was "skeevey."
The party broke up when the police arrived to deal with a couple arguing outside, but a friend of Bobby's, Michelle, invited the group to her apartment. B.K., Corey and Tony agreed to ride in defendant's car because, with the addition of Bobby's friend, there was no room for them in the other car and because Corey agreed to ride with B.K. in the backseat. After a short time, the four of them left Michelle's and went to the home of defendant's mother and stepfather.
Defendant's parents were not there. The visit was brief. Defendant stared at B.K. but did not speak much and suddenly told his guests he was going to take them to their respective homes.
Defendant dropped Tony off first, and then told Corey he would not take him all the way to his home in South Belmar. He took Corey back to the apartment complex that was the site of the first party and left him. B.K. stayed with defendant and rode in the front passenger seat. As Corey left, however, he noticed that B.K. looked worried and scared.
After stopping briefly at his parents' home, defendant drove B.K. to Godfrey Lake in Brick. In the course of their travels after leaving the first party, they had passed the street on which B.K.'s boyfriend lived, 20th, and B.K. mentioned that he lived there. At trial, B.K. acknowledged that her boyfriend was the "jealous type."
B.K. gave the following account of what occurred at the lake. She told defendant she wanted to go home, but he told her to "just hang out." As she tried to leave the car, she heard the locks click. Defendant then choked her. To no avail, she tried to get out of the car, begged him to stop, struggled to prevent him from raping her and pressed her thumbs into his eyes. She told him God would punish him and tried to get him to look into her eyes, but defendant told her he was going to kill her and throw her in the lake. Her jeans, underwear and boots came off, but she did not remember how. At trial, she testified she had a vague recollection of unzipping and removing the boots herself while defendant was choking her. After defendant had intercourse with and digitally penetrated her, he directed her to dress. Her jeans were in the backseat, and she thought he must have thrown them there. Defendant drove away from the lake. When they reached an area B.K. recognized, she jumped out of the car and, because defendant grabbed her coat, fell in the street. B.K. then flagged down a passing motorist, told him she had been raped and asked for help. As he called 911, B.K. saw and ran to a police car. The officer noted that she was disheveled, had red marks on her neck, and from the streaking of her make-up appeared to have been crying. B.K. was taken to the hospital where she was examined. Vaginal samples were taken and defendant's DNA was detected. The next day B.K. saw Traci, who noticed finger marks on her neck and a bruise on her chin.
When questioned by the police the following day, defendant agreed to speak to the police and told them B.K. was lying. He told them he had taken B.K. home but could not say where she lived. He later said he took her to her boyfriend's home in Brick and gave them the name of his street. The officer noticed scratches under defendant's left eye. Defendant's DNA was also found on the passenger's side of the car he drove on the night of the incident.
Defendant testified at trial. His description of the events preceding his second stop at his stepfather's home was substantially similar to those given by the other witnesses. According to defendant, however, when he and B.K. went to his stepfather's house alone the second time, they kissed on the couch. When his stepfather returned, they left and went to the lake where he parked and left the car's heat and radio on. They undressed one another, had sex and redressed.
B.K. then told him she could not go home because her mom would know she had been drinking. She asked him to take her to his house, but he said he could not because he shared that house with two women who both have children. According to defendant, she then "started freaking out, cursing and yelling at" him. At that point, she flailed her arms, tried to hit him and said "she was gonna tell everybody [he] raped her."
He explained that B.K.'s threat made him angry, which led him to grab her by the throat, squeeze and then shove her away. He used his right hand to do that, and she "backhanded" him hitting his left eye and cutting it with her ring. According to defendant, all of that happened after they had intercourse and left the park. B.K. then got out of the car, slipped on ice and ran out into the middle of the road. Defendant did not see where B.K. went, and he went to his house in Neptune, where he told the women he lived with that he had intercourse with someone who was going to accuse him of rape.
The judge limited defendant's testimony about what B.K. said to him. Prior to defendant's testimony, the judge ruled that defendant could testify that B.K. told him she would tell everyone he had raped her but could not testify that she also said "everyone will believe her because she had done this before." The judge also ruled that defendant was permitted to testify that B.K. told him she did not want to go home because her mother would know she had been drinking, but he was not permitted to testify that she told him that her mother would send her back to rehab.
The judge determined that there was no evidence establishing a prior accusation or of a prior admission to rehab and redacted the proffered testimony about B.K.'s statements, and relying on N.J.R.E. 404(b), excluded the suggestions of prior bad acts. With respect to the prior accusation, she also relied on N.J.R.E. 608(b). The judge made these determinations over objections cogently argued by defense counsel.
Defense counsel offered both statements that B.K. made to defendant during the incident as relevant to his client's defense. The defense was that B.K. was with defendant because she was afraid to go home, not because she was kidnapped, and that their intercourse was consensual and not accomplished forcibly or by threats to kill because he never threatened to kill her and used no force until B.K. told him she was going to accuse him of raping her.
There is no question that a defendant in a criminal case has a "Sixth Amendment right to offer evidence that refutes guilt or bolsters his claim of innocence." State v. Nevius, ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 25); see Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312--13 (1973); State v. Harris, 156 N.J. 122, 177 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); State v. Jamison, 64 N.J. 363, 378-79 (1974). That right extends to all evidence that is competent, relevant and not unduly prejudicial. Nevius, supra, ___ N.J. Super. at ___ (slip op. at 25). Where a reviewing court cannot be certain that exclusion of admissible exculpatory evidence presented by the defense would not have changed the outcome, it does not speculate. State v. White, 158 N.J. 230, 248 (1999); accord State v. Williams, 169 N.J. 349, 361-62 (2001). Thus, reversal is required when there is room for doubt.
We turn to consider the excluded portion of defendant's testimony about B.K.'s statement advising him that she had made a prior accusation of rape and was believed. As defense counsel argued at trial, that testimony was not offered for its truth - that B.K. had made a prior accusation and been believed. See N.J.R.E. 801(c). "Where statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay." Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456 (App. Div.), certif. denied, 142 N.J. 452 (1995); accord Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (relying on Russell); State v. Brown, 170 N.J. 138, 181 n.1 (2001) (Stein, J., dissenting) (quoting Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996)). This testimony was relevant to defendant's defense. It tended to explain when and why he grabbed B.K.'s neck and why defendant would tell the women he lived with that he had sex with someone who was going to accuse him of rape and tell the police B.K. was lying.
To the extent that the trial judge relied on N.J.R.E. 608(b) to prohibit defendant from testifying that B.K. told him she had made a prior accusation of rape that was believed, the judge erred. Neither the statement itself nor defense counsel's proposed use of it suggested that the prior accusation was false. By its terms, N.J.R.E. 608(b) only applies to evidence of a "prior false accusation" offered to attack the credibility of a witness. Defense counsel advised the judge that he could not use the evidence in that way because he did not have a foundation for it. Thus, it was improperly excluded pursuant to N.J.R.E. 608(b).
Defendant's testimony about what he claimed B.K. said was admissible subject to a limiting instruction explaining that if the jurors believed defendant's testimony, then they could consider it to the extent they found that the testimony explained defendant's conduct and statements. If the judge was concerned that the jurors might have erroneously inferred that B.K. was speaking about a false accusation that reflected negatively on her credibility, the judge should have addressed that problem through an appropriate limiting instruction, not by excluding evidence important to the defense that defendant had a right to present.
The judge also erred in relying on N.J.R.E. 404(b) to preclude defendant from testifying about what B.K. said about her prior accusation. That rule does not apply unless the evidence "of other crimes, wrongs or acts" is offered "to show that such person acted in conformity therewith." As the statement did not suggest that B.K.'s prior allegation was false, it was incapable of giving rise to an inference that she fabricated the accusation because she had a propensity to do that. To the extent it suggested she had been raped in the past and reported it and been believed, the bad act was not hers.
In addition, N.J.R.E. 404(b) had no application to a statement defendant claimed B.K. made after intercourse and before she left his car. After this case was tried, the Supreme Court decided State v. Rose, 206 N.J. 141 (2011), which makes it clear that N.J.R.E. 404(b) does not apply to any part of B.K.'s statement. Rose addressed, among other things, the "confounding use of res gestae" in the analysis of questions of the applicability of N.J.R.E. 404(b). Id. at 176. The Court directed lower courts to abandon the use of res gestae but "retain the concept of 'intrinsic evidence' that it embodies for use in connection with analyses under Rule 404(b)." Id. at 177. The Court explained that intrinsic evidence is admitted "as 'necessary parts of the proof of an entire deed,' or as 'inseparable elements of the deed,' or as 'concomitant parts of the criminal act . . . .'" Ibid. (quoting 1A Wigmore on Evidence § 218, at 1888 (Tillers rev. 1983)). Importantly, the Court held that N.J.R.E. 404(b) does not apply to intrinsic evidence and that intrinsic evidence is admissible if it is relevant pursuant to N.J.R.E. 401 and 402, and not excludable pursuant to N.J.R.E. 403. Id. at 177-78.
The Court adopted the "workable, narrow description of what makes uncharged acts intrinsic evidence of the charged crime, and therefore not subject to Rule 404(b)," stated in United States v. Green, 617 F.3d 233 (3d Cir. 2010). Id. at 180. Under that formulation, . . . the "intrinsic" label [applies to] two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under Rule 404(b). [Ibid. (quoting Green, supra, 617 F.3d at 248-49).]
Because "relevant evidence" is defined as "evidence having a tendency in reason to prove or disprove" a fact, N.J.R.E. 401, Green's test for intrinsic evidence that is exempt from N.J.R.E. 404(b) necessarily extends to evidence that is relevant to "disprove" an element of a charged crime. The entirety of defendant's proffered testimony about what he claimed B.K. said about her prior rape accusation was relevant to show that defendant's use of force had nothing to do with the intercourse. It was also relevant to explain why he made statements arguably indicative of his guilt. We refer to his statement advising his housemates someone was going to accuse him of rape and his statement telling the police B.K. was lying. Thus, the evidence was improperly excluded pursuant to N.J.R.E. 404(b) because that rule did not apply to this intrinsic evidence.
Finally, we note that the judge did not rely on N.J.R.E. 403 to exclude this testimony based on its relative probative and prejudicial value. Because the record does not permit a determination that the probative value of this portion of defendant's testimony is substantially outweighed by the risk of prejudice, there is no reason to remand for the trial judge to consider whether defendant's testimony about what he claimed B.K. said should have been excluded on that ground. Cf. State v. Garfole, 76 N.J. 445, 457 (1978) (remanding where 404(b) offered by the defense was improperly excluded under that evidence rule but the judge had not considered whether it should be excluded pursuant to N.J.R.E. 403 and there was an arguable basis for exclusion on that ground). Simply put, N.J.R.E. 403 does not provide an alternative ground for exclusion of this evidence.
Having concluded that it was error to limit defendant's testimony about what B.K. told him when she advised him she would tell everyone he raped her, we must consider whether the error was harmless. Considering the importance of this evidence to the defense in this case, which involved physical evidence of intercourse and of an application of force to B.K.'s neck, we cannot be certain that the jury's verdicts on sexual assault and terroristic threats would not have been different if defendant had been permitted to testify fully.
Defendant's testimony describing what he claimed B.K. said about being believed could have given the jurors additional reason to doubt whether defendant placed his hand on her neck and squeezed in order to compel her to have intercourse, as she contended, or in response to her saying she was going to tell everyone he had raped her and would be believed, as he sought to testify. If the jurors accepted that B.K. told defendant that she had been believed in the past, they could reasonably assign additional weight to her alleged threat of accusation in determining whether that threat explained defendant's subsequent conduct. The full version of the threat defendant claimed B.K. uttered also could have raised additional doubt about whether defendant threatened B.K.'s life at all, which she testified he had done while choking her to compel intercourse. For that reason, we are not certain about the verdicts on sexual assault and terroristic threats.
The uncertainty about the impact of the exclusion of this portion of defendant's testimony about what he claimed B.K. said does not extend to defendant's conviction for simple assault. That is so because defendant admitted to placing his hands on B.K.'s neck and squeezing it in anger and because provocation is not a defense to assault and the defense did not argue or ask for an instruction on self-defense. See State v. Galicia, ___ N.J. ___, ___ (2012) (slip op. at 21-24) (noting that only murder can be mitigated by provocation and declining to reconsider State v. Grunow, 102 N.J. 133 (1986)); State v. Seifert, 85 N.J.L. 104, 104-05 (Sup. Ct. 1914), aff'd, 86 N.J.L. 706 (E & A 1914). Thus, the erroneous redaction casts no doubt on defendant's conviction for simple assault.
There is no reason to consider defendant's claims of ineffective assistance of counsel or abuse of sentencing discretion. Nor is it necessary to address the judge's exclusion of defendant's testimony about what he claims B.K. said about fearing her mother would re-admit her to rehab. That testimony was probative of B.K.'s willingness to be in defendant's car. Its relevance was to cast doubt on the kidnapping charge, but the jurors found defendant not guilty of kidnapping. Accordingly, the error in exclusion of this evidence was harmless with respect to kidnapping. As to the other charges, reversal of defendant's convictions for terroristic threats and sexual assault is required without regard to this error.*fn1
Defendant's conviction for simple assault is affirmed; his convictions for sexual assault and terroristic threats are reversed, and the case is remanded for a new trial on those charges.