On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Judge Wefing
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. J.D. (A-33-11) (064757)
Argued May 8, 2012 -- Decided August 9, 2012
WEFING, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this case in which the defendant was convicted of sexual assault and endangering the welfare of a child, the Court applies the provisions of the Rape Shield Law, N.J.S.A. 2C:14-7, to determine whether the defendant was improperly barred from presenting evidence of the victim's sexual activity with unidentified males.
The victim, K.E., was born in 1990. K.E. spent significant periods of time with her godmother and her godfather, J.D., and became close friends with their daughter, A.D. The girls regularly slept together at the godparents' home. In August 2005, when K.E. was fifteen years old, K.E.'s mother picked her up after she had spent the night at the godparents' home and noticed a red mark on K.E.'s neck. She asked K.E. about the mark. After initially refusing to answer, K.E. confided to her grandmother that J.D. had given her the mark and had assaulted her. Police were notified, and K.E. reported that J.D. repeatedly assaulted her between the ages of ten and twelve by digitally penetrating her while A.D. was asleep next to her, and when she was age twelve or thirteen by having sexual intercourse with her. Regarding the August 2005 incident, K.E. stated that J.D. woke her at about 1:00 a.m., told her to go downstairs, and had intercourse with her, ejaculating onto her buttocks.
K.E. was taken to a hospital, where she was met by members of the Sexual Assault Response Team. A physician examined K.E. and observed a superficial abrasion that was consistent with penetration. He took swabs from her vagina, cervix, and mouth. The following day, K.E. gave a taped statement in which she claimed that she had previously told her best friend, L.M., about J.D.'s abuse. K.E. also said that her only sexual experience was the abuse she received from J.D. J.D. denied any sexual abuse but admitted that, at times, he kissed K.E. or bit her in a "playful manner." The police took a buccal swab from J.D. for DNA comparison purposes. K.E.'s friend, L.M., gave a statement in which she denied that K.E. had told her that J.D. had had sex with her, and she stated that sometimes she and K.E. bit each other playfully. However, during her trial testimony, L.M. testified that K.E. had told her many times that J.D. was having sex with her, and she failed to provide this information to police because she was scared. L.M. testified that she caused the red mark that K.E.'s mother saw on the girl's neck.
Tests on the swabs taken from K.E. revealed the presence of sperm, but the samples were insufficient for the State Police laboratory to conduct a DNA analysis. The swabs were sent to a laboratory that was capable of analyzing the Y chromosome contained in the sperm. The test could exclude an individual as the source of the sample, but it could not precisely identify the source. The test on the swabs did not exclude J.D. as the source of the sperm. At trial, the State presented evidence that the Y chromosome profile of the sperm was consistent with J.D.'s Y chromosome profile. J.D.'s expert testified that ten million males living in the United States would have the same profile.
At pretrial hearings, J.D.'s attorney stated on several occasions that he would attempt to establish at trial that another male was the source of the male DNA that was identified during the testing. The trial court consistently advised defense counsel of the need to comply with the Rape Shield Law, N.J.S.A. 2C:14-7, before any evidence of K.E.'s prior sexual conduct would be admitted. Because defense counsel did not present any evidence that complied with N.J.S.A. 2C:14-7, the judge precluded him from raising at trial the issue of K.E.'s alleged prior sexual conduct. J.D. was convicted of one count of sexual assault and one count of endangering the welfare of a child. J.D. filed a motion for a new trial, arguing that the trial court improperly restricted him from presenting the issue of K.E.'s sexual activity to the jury. The trial court denied the motion.
In an unpublished opinion, the Appellate Division affirmed. The panel explained that J.D. proffered no evidence that K.E. was sexually active during the relevant time period, and he offered nothing more than "general and vague innuendoes." The Supreme Court granted certification limited to the issue of whether the trial court erred in denying admission of evidence that the victim was sexually active.
HELD: Evidence proffered by defendant J.D. of the victim's prior sexual contact with other males consisted of vague allegations that were inadmissible and not constitutionally compelled, and the trial court properly excluded it under the Rape Shield Law, which protects the victim of sexual assault from unjustified incursions into past conduct.
1. The Rape Shield Law, N.J.S.A. 2C:14-7, was enacted in 1978 to restrict a defendant's ability to introduce evidence of the victim's past sexual conduct. Its purpose is to protect the victim's privacy interests and avoid attempts to cast the victim as promiscuous or of low moral character. The statute defines "sexual conduct" as "any conduct or behavior relating to sexual activities of the victim," and it sets forth the procedure a defendant must follow if he wishes to introduce such evidence. With limited exceptions, the statute requires the defendant to apply for an order and the trial court to conduct an in-camera hearing to determine the evidence's admissibility. If the court finds the evidence admissible, it must enter an order setting forth what evidence may be introduced, the nature of the questions that shall be permitted, and the reasons why the evidence meets the statutory standards. (pp. 10-12)
2. N.J.S.A. 2C:14-7 states that trial courts must find the proffered evidence "relevant and highly material" and that its probative value "substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confuse the issues, or pose an unwarranted invasion of the privacy of the victim." The evidence is only relevant if it is material to proving the source of semen, pregnancy or disease, or if it is probative of whether the defendant reasonably would have believed that the victim consented. Because a defendant's constitutional right of confrontation could be impinged by a literal interpretation of the Rape Shield Law's requirements that the evidence be "highly" material and that its probative value "substantially" outweigh its prejudicial effect, the Court previously has ruled that evidence that is relevant and necessary may not be excluded under the statute, and the admission of such evidence is constitutionally compelled. As such, in determining admissibility, the trial court must engage in a fact-sensitive process, weighing the relevance of the proffered evidence, its necessity to the defense, and its apparent veracity against its potential to humiliate the victim, invade her privacy, and confuse the jury. (pp. 12-17)
3. On at least four occasions, the trial court instructed J.D.'s attorney to submit an application supported by evidentiary material that would permit it to conduct an in camera hearing under N.J.S.A. 2C:14-7. J.D.'s attorney never did so. He advised the trial court that he proposed to have J.D.'s daughter testify that she had overheard telephone conversations in which K.E. recounted her sexual exploits, and he proposed to have L.M.'s sister testify that K.E. told her about her sexual encounters with two males. However, J.D. could not produce the name of even one male with whom K.E. had engaged in sexual conduct, nor was he able to identify when those encounters occurred. He proffered nothing more than the type of vague allegations that the Court has held are inadmissible and not constitutionally compelled. Furthermore, whether K.E. previously engaged in sexual activities had no reasonable tendency to prove or disprove that J.D. abused her. Although evidence that K.E. engaged in a sexual encounter with another male between the time she said J.D. assaulted her and the time she was examined at the hospital would have a tendency to prove that another male was the source of the semen, J.D.'s attorney made no such proffer, and instead sought to introduce statements that K.E. may, at some unidentified earlier point in time, have had a sexual encounter with an unidentified male. Such evidence was not relevant to the charges against J.D. (pp. 17-18)
4. With regard to J.D.'s claim that evidence of K.E.'s prior sexual conduct should have been admitted to challenge her statement to police that she was not otherwise sexually active, for that evidence to have probative value there must be clear proof that the acts occurred, they must be relevant to a material issue, and they must be necessary to the defense. In addition to the evidence not being relevant, J.D. offered no clear proof that the prior sexual conduct occurred. He also was permitted to introduce statements by L.M. that she and K.E. kissed and bit each other, and his expert made the jury aware that the Y chromosome testing could not conclusively identify him as the source of the semen. It was not necessary for J.D. to offer non-specific, irrelevant evidence that K.E. was sexually active, especially when the Legislature has mandated that courts protect the privacy interests of victims. (pp. 19-21)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON join in JUDGE WEFING's opinion.
JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.
In this appeal, we are again called upon to balance the exquisite tension that inheres in protecting a defendant's right to challenge the individual accusing him of a crime while at the same time protecting the victim of a sexual assault from unjustified incursions into past conduct. Defendant, who was convicted at trial of sexual assault, N.J.S.A. 2C:14-2(c), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a), argues that the trial court and the Appellate Division, which affirmed his convictions and sentence, struck the wrong balance, depriving him of a fair trial. We are unable to agree and thus affirm defendant's conviction and sentence.
The victim, K.E., was born on April 19, 1990. Her mother was unable to care for K.E. for an extended period of time, and thus K.E.'s grandmother, a resident of Jersey City, had custody of the child. K.E. would often spend significant periods of time with C.D., a childhood friend of K.E.'s mother, and C.D.'s husband, defendant J.D. Eventually, K.E. asked C.D. and J.D. to be her godparents, and they agreed. K.E. became close friends with their daughter, A.D., who was approximately six years younger than K.E. The two young girls regularly slept together in the same bed at defendant's home in Jersey City.
At the end of August 2005, K.E. stayed with C.D. and J.D., at which point K.E. was fifteen years of age. When she awoke on the morning of August 30, one of her eyes was swollen from mosquito bites; and C.D. called K.E.'s mother, who was living in New York City, to tell her of this. K.E.'s mother took the train to Jersey City, where K.E., C.D., and A.D. picked her up at the train station and took her and K.E. to see K.E.'s grandmother. K.E.'s mother was speaking privately with her daughter when she saw a red mark on the girl's neck. K.E.'s mother testified that when she questioned K.E. about it, K.E. became upset, but K.E. would not tell her anything. K.E. told her that she would speak to her grandmother, and K.E.'s mother left to give her that opportunity. K.E. confided to her grandmother that defendant had given her that mark and had assaulted her. K.E.'s grandmother telephoned K.E.'s mother, who immediately returned and called the police.
K.E. said that defendant had repeatedly sexually assaulted her. She said that defendant attacked her, between the ages of ten and twelve, by digitally penetrating her while A.D. was asleep next to her. K.E. stated that when she was twelve or thirteen, J.D. began to have sexual intercourse with her.
Regarding the August 29 incident, K.E. said that J.D. had awakened her at approximately 1:00 a.m. and told her to go downstairs where he kissed her, removed her underwear, and proceeded to have intercourse with her. She said that he did not ejaculate into her vagina but onto her buttocks. When the assault ended, she returned to bed. She said nothing further occurred between them, and she woke up the next day with the swollen eye.
The police officer who responded to the apartment of K.E.'s grandmother contacted the Sexual Assault Victims' Assistance Unit of the Hudson County Prosecutor's Office and was instructed to take K.E. to the hospital, where K.E. was met by members of the Sexual Assault Response Team. At the hospital, she was examined by a physician, who testified at trial that he observed a superficial abrasion of K.E.'s posterior ...