STATE OF NEW JERSEY v. DONALD E. ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5944-07T45944-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD E. ROBINSON,

Defendant-Appellant.

________________________________________________________________

 

Argued June 7, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-795.

Christian A. Pemberton, attorney for appellant.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

At the conclusion of a non-jury trial, defendant Donald E. Robinson was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), for which the judge sentenced him to an eight-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following claims:

I. THE TRIAL JUDGE INCORRECTLY REFUSED TO ALLOW TESTIMONY OF A POSSIBLE MOTIVE FOR [THE] ALLEGED VICTIM'S ACCUSATIONS.

II. THE COURT'S RULING WAS NOT SUPPORTED BY THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

III. THE JUDGE DID NOT APPLY THE PROPER STANDA[R]DS PERTAINING TO CREDIBILITY OF THE EVIDENCE.

IV. APPELLANT'S TRIAL ATTORNEY'S FAILURE TO PROPERLY INVESTIGATE AND OBTAIN EXCULPATORY EVIDENCE ROSE TO THE LEVEL OF INEFFECTIVE ASSISTANCE OF COUNSEL.

We reject the claims defendant advances in Points I, II and III and defer the ineffective assistance of counsel claim to the filing of a petition for post-conviction relief (PCR). We affirm.

I.

Lorraine began a romantic and sexual relationship with defendant in 1996. They lived together for four years, but their relationship came to a halt when defendant slapped Lorraine and she forced him to move out of her home. Although they eventually resumed their relationship toward the end of 2003, their relationship finally ended in March 2005, but they remained friends and often went fishing and crabbing together.

On August 20, 2005, defendant and Lorraine went crabbing in the morning and Lorraine drove to defendant's home at 7:00 p.m. for dinner, as the two had agreed. When Lorraine arrived, defendant was ironing. For the next two hours, she continued to ask him about dinner, and each time defendant insisted he would cook dinner as soon as he finished ironing. At 9:30, Lorraine decided to leave and told defendant she was going home.

Lorraine testified that at that point, defendant attacked her, pushed her into a chair, restrained her by holding her arms and removed her pants and underwear. He inserted his penis into her vagina and engaged in vaginal intercourse. Lorraine testified that she was crying and "begged him to stop, but he wouldn't. He wouldn't stop. He just wouldn't stop."

Afterward, Lorraine got dressed and planned to drive to an area hospital, but "got scared" because she believed the hospital would inform her adult son Michael of what had happened. After driving only a few blocks, Lorraine turned around and returned home.

She immediately called her cousin, Alphonso "Ricky" Gregg, a Philadelphia police officer, to tell him what had happened. Lorraine told him she felt "[n]umb" and "dirty" and could not understand why defendant had raped her. Gregg repeatedly encouraged her to call police or go to the hospital, but Lorraine refused, believing either action would result in Michael learning what had occurred. Lorraine did, however, accept Gregg's advice to place her underwear in a brown paper bag and preserve it for DNA testing.

Gregg testified to the profound personality change he observed in Lorraine after the night of the assault. He testified that before August 20, 2005, Lorraine "was always a joking person. We used to laugh and joke on the phone all the time." But, according to Gregg:

[After the assault] it scared me in a way, because she started going through withdrawal symptoms. . . . [S]he would lock herself in the room, she didn't sound the same on the phone. She was like depressed, and I used to call her about . . . every day or once a week at least, call her and try to talk to her, because she started, you know, scaring me in a way . . . because she was really down. Her whole attitude and everything changed.

Lorraine also telephoned defendant's mother, Shirley Williams, whom Lorraine described "as a second mother" and informed Williams that her son had sexually assaulted her. Lorraine promised Williams that she would not report defendant's actions to police as defendant was Williams's sole caretaker. Lorraine described Williams as having a heart condition, "legally blind" and she "could barely hear."

On August 22, 2005, two days after the sexual assault, Lorraine contacted her primary care physician, Dr. Yungdoo Song, who examined her and reported bruises on her upper right arm, upper thigh and tenderness in her groin area. Dr. Song's office notes documenting those bruises were admitted in evidence. Song advised Lorraine to see her gynecologist for a further examination.

Lorraine followed Song's advice and was seen by her long-time gynecologist, Dr. Joel Kramer, that same day. Dr. Kramer's testimony described his clinical findings, which included the presence of blood in the vaginal vault, which was abnormal in Lorraine's case because she had had a complete hysterectomy. Kramer opined that blood in the vaginal vault could be the result of vaginal infection, lacerations or rape. Kramer was, however, unable to make a definitive finding as to the cause of the blood he observed. Notably, Kramer testified that Lorraine's demeanor was markedly different from the demeanor he had observed over the long period of time that she had been his patient. He explained:

I've known [Lorraine] for many, many years. She was extremely nervous, very withdrawn, almost embarrassed to be in my office. We spoke for a little bit and after she had told me what happened. On examination she was nervous even to be examined, and a different person than I had seen on many previous occasions.

In March 2006, defendant's mother passed away, and in keeping with the promise Lorraine had made to defendant's mother, she assisted defendant with the funeral arrangements. She drove herself to the funeral and burial and did not speak to defendant at either event.

A few days after the funeral, defendant telephoned Lorraine asking her to meet him at the Cherry Hill Mall, which she refused to do. When he told her he would instead come to her house, Lorraine became alarmed and called the Pennsauken Police Department to report the prior sexual assault because she was "scared [defendant] was actually going to come, and [she] was home by [her]self." When Lorraine reported the crime to Pennsauken police on March 26, 2006, she declined to give police the name of her assailant, believing her son Michael would "hate [her]."

However, on May 12, 2006, Lorraine contacted Detective Sergeant Cheryl Duffy and named defendant as her assailant. Duffy testified that during her interaction with Lorraine on the day Lorraine named defendant as her assailant, Lorraine was "[d]istraught" and "[i]nconsolable . . . almost to the point of hysterics."

Lorraine also provided Duffy with the brown paper bag containing her underwear, which she had been keeping in her closet since August 20, 2005, the night defendant assaulted her. DNA testing established that the seminal fluid on Lorraine's underwear was defendant's.

Lorraine described why she finally provided defendant's name to police, stating:

I felt like I was having a nervous breakdown. I couldn't think. I couldn't eat. I couldn't do nothing but work and work and work, and when I got home I couldn't sleep. I couldn't do nothing. My mind kept racing and racing and racing. It wouldn't stop. My heart wouldn't stop. It was time. It was time for me to let go of some of my pain that I was feeling and I did. I did it.

The State also presented the testimony of Investigator Miguel Rubert of the Camden County Prosecutor's Office, who testified that when he interviewed Lorraine in the summer of 2006 and extended his hand while introducing himself, Lorraine "withdrew her hand and didn't say anything." He described her demeanor during the interview as "crying, shaking, having a difficult time answering questions or understanding."

Defendant testified, refuting Lorraine's depiction of the August 20, 2005 assault. Defendant stated that before the alleged assault, he and Lorraine argued over his daughter, and he refused to answer Lorraine's telephone calls. Defendant maintained that on August 20, 2005, he did not go crabbing with Lorraine and did not invite her for dinner. Rather, he simply let Lorraine into his home when she showed up, and he proceeded to converse with her about their relationship. Defendant claimed Lorraine consented to having intercourse, claiming that "[Lorraine] came over and she sat in my lap and told me . . . how sorry she was about my daughter, how sorry she was about the things that had happened in the past. And she started kissing on me and everything." According to defendant, "it just escalated from there. . . . So we had sex. There was nothing violent about it. It was consensual. It was more or less . . . make-up sex."

Defendant claimed that after that night, he and Lorraine remained in contact until he decided to end their relationship. Defendant testified that Lorraine continued to call him, which caused him to change his telephone number.

During defendant's direct examination, his attorney sought to elicit testimony concerning a fire set to defendant's front door and defendant's reporting of Lorraine to police as the only individual who might wish to harm him. In his offer of proof, counsel told the judge that Lorraine was questioned informally by police, although counsel did not specify whether such questioning occurred before or after Lorraine provided defendant's name to Pennsauken police on May 12, 2006. The only fact that was established with any certainty was that April 16, 2006 was the date upon which defendant reported the fire to Pennsauken police.

Defense counsel asserted that he did not seek to establish that Lorraine had in fact set the fire. Instead, he explained that he sought only to establish that Lorraine knew she had been named by defendant as a possible suspect, which gave her a "reason or layer[sic] for retaliation against [defendant]." Defense counsel argued that the "timing" of defendant's report to police about the fire made the "retaliation issue . . . much more relevant." The judge sustained the prosecutor's relevance objection, ruling "I'm not going to allow it. It's too tenuous. Proceed." After calling one witness, Anne Tansimore, who testified that to her knowledge, Lorraine and defendant's mother did not have the close relationship Lorraine claimed, defendant rested.

The court issued its ruling on March 13, 2008, finding defendant guilty of sexual assault. In his findings of fact, Judge Brown adopted Lorraine's characterization of the events leading up to and following the assault. He also discussed Kramer's medical findings, stating:

Dr. Kramer noted that [Lorraine] had blood in her vaginal vault, which is not normal given her gynecological history. Additionally, Dr. Kramer determined that [Lorraine] suffered vaginal trauma. He further noted that such trauma could be secondary to rape.

Additionally, he stated that such trauma could be the result of other conditions such as vaginitis and lacerations through the insertion of foreign objects.

In his ruling, the judge found the State's witnesses, including Lorraine, to be credible, while defendant was not. The judge stated:

Although the defendant pointed out on cross-examination and the [c]ourt noted a few inconsistencies in the victim's testimony. Nevertheless, the [c]ourt finds [the victim's] testimony extremely credible. [Her] actions following the assault are both consistent with and understandable given the trauma that she had experienced on August the 20th.

Following the attack, her decision not to go directly to the hospital was consistent with the actions of a mother concerned about the effect that such an event would have upon her son. . . . This also explains her reluctance to report the assault to the police.

The other reason was her fulfilling a promise that she made to the defendant's mother, someone that she developed a close relationship with over the years, a person who had once lived with [the victim] and the defendant. . . .

[The victim's] credibility is further supported by her actions immediately following the sexual assault in contacting her cousin Ricky whom she provided details of the assault and followed [his] instructions in preserving evidence of the assault. [Her] credibility regarding the assault is further corroborated by the physical evidence. That is, the DNA evidence, the underwear, and the results of the observations of an examination by Drs. Song and Kramer.

This [c]ourt also had the opportunity to observe the demeanor of [the victim] during her testimony. From her initial entry into this courtroom to begin her testimony, [she] appeared visibly shaken and terrified of the defendant. She clutched her coat with both hands as if attempting to shield her body from the defendant. When asked to identify the defendant, she could barely maintain her composure. At times during her testimony, she openly wept.

This in this [c]ourt's opinion, it was more than mere fear of a court appearance that many witnesses experience. [The victim] genuinely appeared terrified of the defendant. Her demeanor did not appear contrived or feigned.

. . . .

Upon examination, Dr. Kramer found vaginal trauma. He also found blood in the vaginal vault. He determined that this was not normal as the patient had had an incomplete hysterectomy [sic]. Although Dr. Kramer acknowledged that such a condition could be secondary to rape, he could not make that determination in this case.

. . . .

Finally, the defendant testified on his own behalf. And the [c]ourt heard the testimony of the defendant Donald Robinson. Now, defendant appeared to be relaxed during the trial, as well as during his testimony. During his testimony, the defendant gave a completely different version of the events that occurred prior to, during, and subsequent to the August 20th, 200[5] sexual assault.

. . . .

The defendant's testimony regarding the events that occurred on August the 20th, 200[5] at his home and its aftermath is incredible, clearly inconsistent with [the victim's] testimony, as well as the physical evidence in this case.

For [her] to suddenly morph from a person who was loving on the evening of August the 20th to a hysterical, withdrawn and emotionally distraught person simply defies both logic and common sense. Additionally, defendant's testimony regarding the events that occurred on August the 20th clearly flies in the face of the evidence presented during this trial.

The physical evidence in this case, which includes the victim's underwear, . . . the positive DNA, . . . the physical injuries suffered by [the victim] and documented in the report of Dr. Song and testified to by Dr. Kramer, all discredits the defendant's testimony and supports [her] credibility.

II.

In Point I, defendant maintains that the judge improperly excluded evidence. We review a judge's decision admitting or excluding evidence for an abuse of discretion. State v. Fortin, 178 N.J. 540, 591 (2004). The precise standard of review affords deference to a trial court's ruling "unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results." State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002).

Defendant argues that the trial judge improperly excluded evidence of Lorraine's possible motive to falsely accuse defendant of sexually assaulting her. He maintains that although the record does not contain evidence of the precise date upon which Lorraine was informally questioned by Pennsauken police, it is reasonable to assume that she would have been contacted at some point between April 16, 2006, when defendant filed the report and named her as a suspect, and May 12, 2006, which was when she named defendant as her assailant.

At appellate oral argument, we asked defense counsel whether the record contained any proof of the date upon which Lorraine was interviewed. Defense counsel responded that the only police report in the possession of the defense was the report prepared on April 16, 2006 when defendant contacted Pennsauken police. The defense did not have a copy of any police report establishing the date that Lorraine was presumably interviewed. In fact, other than the proposed hearsay testimony of defendant -- in which he was apparently prepared to testify that Pennsauken police told him they interviewed Lorraine -- there was no proof that Lorraine was ever questioned or that Lorraine even knew that defendant had named her as a suspect in the setting of the fire.

Thus, there was no evidence other than inadmissible hearsay establishing that Pennsauken police ever interviewed Lorraine about defendant's accusation. Consequently, the testimony defendant sought to introduce would have amounted, as the State argues, "to mere conjecture, neither logically nor materially linked to the issues in the case." While a criminal defendant is entitled to a meaningful opportunity to present a complete defense, Fortin, supra, 178 N.J. at 590-91, and is entitled to present evidence of bias that undermines the credibility of a prosecution witness, State v. Smith, 101 N.J. Super. 10, 13 (App. Div. 1968), certif. denied, 53 N.J. 577 (1969), the proof offered must nevertheless have "'a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Fortin, supra, 178 N.J. at 591 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed 2d 873 (1960)). A defendant cannot simply seek to introduce evidence of "some hostile event and leave its connection with the case to mere conjecture." Sturdivant, supra, 31 N.J. at 179.

In determining whether evidence is relevant, the inquiry must focus upon "the logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). The proffered evidence must render the "desired inference . . . more probable or logical" than it would be without the evidence. State v. Burr, 195 N.J. 119, 127 (2008) (citing State v. Williams, 190 N.J. 114, 123 (2007)). Without admissible evidence that Lorraine knew she had been named as a suspect, defendant's proffered motive evidence fails the "logical connection" test required by Hutchins. Consequently, it was a proper exercise of the court's discretion to rule that defendant's proffer was "too tenuous" to justify its admission at trial.

Apparently recognizing the gaps in the evidentiary foundation that trial counsel attempted to establish at trial, appellate counsel argues that the absence of precise information verifying that Lorraine knew she had been named by defendant as a suspect goes to the weight of the testimony and not to its admissibility. We disagree. Without a proper evidentiary foundation, the evidence was not admissible. Sturdivant, supra, 31 N.J. at 179.

Moreover, even if, for the sake of argument, we were to conclude that the judge did abuse his discretion when he refused to permit the motive evidence, any such error would have been harmless. The motive evidence defendant sought to introduce would no doubt have been overcome by the fact that Lorraine actually named defendant as early as the night of the assault, eight months earlier, both to her cousin, who was a police officer, and to defendant's mother. Moreover, the uncontroverted evidence of the bruises on Lorraine's body, which were documented in Dr. Song's report, overwhelmingly supported Lorraine's testimony that she did not engage in consensual sexual relations with defendant on the night in question. Additionally, the testimony provided by Gregg attested to a dramatic change in Lorraine's personality immediately following her report to him that defendant sexually assaulted her. The testimony of Dr. Kramer describing Lorraine's "nervous," "withdrawn" and "almost embarrassed" attitude also lent credence to her accusation, as did Sergeant Duffy's description of Lorraine as "inconsolable . . . almost to the point of hysterics" on the day she named defendant as her assailant. All of this evidence in combination was so strong as to satisfy us that even if the judge erred when he excluded the motive testimony, which was not the case, any such error would have been harmless. We thus reject the claim defendant advances in Point I.

III.

In Point II, defendant maintains that the court's

ruling "was not supported by the weight and sufficiency of the evidence." Although defendant's point heading is framed broadly, defendant's legal argument is confined to the far more limited contention that the judge "did not understand Dr. Kramer's testimony even though he heavily relied upon it to convict defendant." In particular, defendant maintains that Judge Brown misconstrued the testimony when he found as a fact that Dr. Kramer testified that Lorraine "suffered vaginal trauma . . . that . . . could be secondary to rape." Defendant points out that Dr. Kramer could not reach definitive conclusions and had conceded that the blood he observed in the vaginal vault could have been attributable to a vaginal infection.

We reject defendant's claim that the judge misunderstood Dr. Kramer's testimony. The record demonstrates otherwise. While it is true that the judge used the word "trauma" to describe Lorraine's symptoms, as opposed to using terminology such as "bleeding in the vaginal vault," Judge Brown clearly stated that Lorraine's injuries could have resulted from "other conditions such as vaginitis." Moreover, Judge Brown expressly noted that "[a]lthough Dr. Kramer acknowledged that such a condition could be secondary to rape, he could not make that determination in this case." As is abundantly clear from the judge's findings of fact, he did not misunderstand or mischaracterize Dr. Kramer's testimony. The judge understood the limitations of the expert opinion offered by Dr. Kramer and properly described those limitations in his findings of fact. We thus reject the claim defendant advances in Point II.

IV.

In Point III, defendant complains that Judge Brown's oral opinion demonstrates that the judge did not place him on equal footing with Lorraine when he evaluated each one's credibility. Defendant maintains that the judge posited Lorraine's testimony as the "standard of review" by which defendant's testimony was evaluated. According to defendant, the judge's findings of fact "seem to start out with [Lorraine] was the credible person and [defendant] was required to either testify in the same manner as [Lorraine] or his testimony would not be judged to be credible." In support of this argument, defendant points to a single statement in the judge's twenty-eight page findings of fact: "The defendant's testimony regarding the events that occurred on August the 20th, 2006 at his home and its aftermath is incredible, clearly inconsistent with [Lorraine's] testimony, as well as the physical evidence in this case." (emphasis added). Reading Judge Brown's extensive and detailed findings of fact as a whole, it is clear that he correctly evaluated both Lorraine's and defendant's testimony in making his determinations of credibility. In fact, the judge devoted many pages of his ruling to a discussion of defendant and Lorraine's testimony and why he found each one to be credible or not credible. Furthermore, each of the judge's credibility determinations was amply supported by the evidence presented at trial.

The judge found defendant's testimony to be lacking in credibility not simply because it conflicted with Lorraine's, but also because of the physical and medical evidence presented, as well as the unlikelihood of defendant's contention that Lorraine was a loving person on August 20, 2005 who then "suddenly morph[ed]" into the "emotionally distraught person" that Gregg described. Where, as here, a judge has made detailed credibility findings, an appellate tribunal must defer to those factual findings because, unlike the trial judge, we have had no opportunity to see the witnesses and evaluate their credibility. State v. Johnson, 42 N.J. 146, 161-62 (1964).

Judge Brown's detailed and comprehensive findings are entitled to our deference. Nothing in the record or in the remainder of Judge Brown's twenty-eight page opinion suggests that defendant's testimony was not afforded proper consideration. We thus reject the claim defendant advances in Point III.

V.

In Point IV, defendant maintains that his conviction should be reversed because he received ineffective assistance of trial counsel in that his attorney did not engage in adequate pretrial investigation, did not prepare him for trial, and was out of contact following the trial. We defer this claim for post-conviction review as defendant's contentions cannot be resolved solely on the trial record and depend upon the presentation of additional evidence. State v. Preciose, 129 N.J. 451, 460 (1992). We thus decline to rule on the ineffective assistance of counsel claim defendant presents and defer it until such time as defendant files a petition for post-conviction relief.

 
Affirmed.

We use the pseudonym Lorraine to protect her privacy.

Michael is a pseudonym.

(continued)

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A-5944-07T4

June 25, 2010