STATE OF NEW JERSEY v. BOBBY PERRY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BOBBY PERRY a/k/a BOBBY PENNY,

Defendant-Appellant.

____________________________________

August 27, 2014

 

Submitted May 19, 2014 Decided

 

Before Judges Harris, Kennedy and Guadagno.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0049.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

 

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was found guilty of second-degree sexual assault, N.J.S.A.2C:14-2(c)(1) (count two), and third-degree aggravated assault, N.J.S.A.2C:12-1(b)(7) (count three). The trial judge sentenced defendant to an eight-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on count two, and four-years' imprisonment on count three, to run concurrent with count two. Megan's Law applied, N.J.S.A. 2C:7-1 to -23, and defendant was sentenced to Parole Supervision for life.

Defendant appeals both his conviction and sentence and raises the following arguments:

I. THE TRIAL COURT DENIED PERRY HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE WHEN THE COURT PROHIBITED THE INTRODUCTION OF EVIDENCE THAT SEMEN FROM ANOTHER MAN WAS FOUND ON THE VICTIM'S SHORTS.

 

II. THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF IMPROPER 404(b) EVIDENCE (A) THAT PERRY HATED WOMEN AND (B) THAT PERRY BELONGED TO A GANG; THESE ERRORS WERE EXACERBATED BY THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION, WARRANTING REVERSAL. (Partially Raised Below).

 

A. THE TRIAL COURT IMPROPERLY ALLOWED

THE STATE TO ADMIT EVIDENCE THAT PERRY HATED WOMEN, WHICH SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(b); EVEN IF ADMISSIBLE, FAILURE TO GIVE A LIMITING INSTRUCTION DENIED PERRY A FAIR TRIAL.

 

B. THE TRIAL COURT'S FAILURE TO ISSUE

A CURATIVE OR LIMITING INSTRUCTION FOLLOWING THE ADMISSION OF EVIDENCE SUGGESTING THAT PERRY WAS A MEMBER OF A GANG DENIED PERRY A FAIR TRIAL.

 

III. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT THROUGHOUT THE TRIAL BY ELABORATING ON THE VIRTUES OF THE VICTIM, DISPARAGING THE DEFENSE WITNESS, AND INFLAMING THE PASSIONS OF THE JURY. (Partially Raised Below).

 

IV. THE CUMULATIVE IMPACT OF THE ERRORS DENIED PERRY A FAIR TRIAL. (Not Raised Below).

 

V. THE TRIAL COURT ERRED BY FINDING AGGRAVATING FACTOR NINE AND BY FAILING TO FIND MITIGATING FACTOR TWELVE; THE COURT WAS THEREFORE UNABLE TO CONDUCT A PROPER WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.

Having considered these arguments in light of the record and applicable law, we reverse and remand for a new trial in accordance with this opinion.

I.

 

We discern the facts from the record. In late July 2009, Sara1 met defendant, whom she knew at the time as "Low." Defendant lived with Ms. Jones, and her husband and two children in an apartment in Union. Defendant referred to Jones as his "sister," although they were not related.

At approximately 10:00 p.m. on August 1, 2009, Sara went to the apartment to meet defendant. Defendant and Jones, as well as Jones' husband and cousin, were drinking in the apartment's "sun porch" at the time. Around midnight, Jones and her cousin left the apartment to go to a party, and Jones' children and husband went to sleep in the back room of the apartment.

Shortly after they left, defendant and Sara began fighting about pets and religion. According to Sara, defendant hit her in the face with a closed fist. Sara testified that she

felt something come loose in [her] mouth and blood came from [her] lip. [She] fell off the chair that [she] was seated in onto [her] knees, and [she] kept holding [her] mouth. After, . . . maybe about a minute . . . [defendant] grabbed [her] by [her] waist and pulled [her] into the bathroom[.]

 

In the bathroom, Sara saw her face and began "screaming, and [defendant] muffled [her] and choked [her], and said if [she] [did not] stop screaming [he] [was] going to bash [her] head against the wall. So [she] stopped." Defendant then took Sara's clothes off, cleaned the blood off of her shoulders and chest, and put her in the shower, threatening to throw a "flatiron" in the shower if she did not comply.

After some time had passed, defendant "took [Sara] by the wrist and pulled [her] into the sun room and told [her] to sit on him." Defendant penetrated Sara while holding her by the neck. The assault ceased when defendant heard Jones come up the stairs. Sara put on defendant's tee shirt and "sat at the chair farthest away from the door with . . . [her] injured side facing towards the window outwards[.]" Jones came out on the sun porch and spoke briefly to defendant and Sara about the party.

After Jones left, defendant took Sara to the basement, and had her

sit down on the armchair and, [] when he got done putting the clothes in the wash[ing] machine he came back and turned [her] over and . . . penetrated [her] from behind, and he tried to . . . have sex with [her] anally. [She] resisted, he got upset, but then he calmed down, and then he turned [her] back around and he went down on [her]. He . . . gave [her] oral sex, and when he was done he turned [her] back around and
. . . tried to anally penetrate [her] again and [she] resisted again. He heard footsteps, but [she] did, too, and that's when he said it's time to go.

 

Sara testified that she was very drunk, but did not consent to any sexual conduct with defendant.

Defendant subsequently brought Sara back to the shower to "wash" her. Defendant attempted further sexual congress with her, but she fell and hit the side of the bathtub. "The noise woke [Jones] up and she knocked on the door and asked 'Brother, what's going on?' And he said, 'Nothing. . . . [Sara] had too much to drink.'"

At that point, defendant and Sara

got out of the shower and [defendant] pulled [her] into the sun room and [they] sat in the sun room looking at each other for a little while. And finally he asked [her] what [she] [was] going to do when [she] got home. . . . And [she] just told him nothing. He said well, people are going to see what happened to your face. What are you going to tell them? And [she] said [she was] going to tell them that somebody else did it. . . . And he gave [Sara] [her] shorts to put on. . . .

 

When she left the apartment around 5:00 a.m., Jones was on the couch, but Sara was unsure if Jones was awake. Defendant followed her to the end of the block after she left the apartment.

Sara then called her ex-boyfriend, Mr. Wilkins, who took her to the Maplewood Police Department.2 When they arrived at the police station, Sara spoke with Sergeant Guglielmo, who saw that she "was bruised and she had a big cut on her mouth, and her face, the side, appeared to be swelling up. And she said she had been assaulted and raped[.]"3 Guglielmo called for an ambulance, which transported Sara to Newark Beth Israel Hospital at approximately 7:08 a.m.

At the hospital, Sara was examined by a nurse, and received eleven stitches to her lip. Detective William Fuentes of the Union Township Police Department arrived at approximately 8:00 a.m. and took Sara to the police department to give a statement. On the way to the police department, Sara identified the building where the attack occurred. She gave a sworn statement at the police department detailing the events of the previous night, and identified defendant as her attacker through a photo array.

On August 3, 2009, Fuentes and other officers responded to Jones' apartment and Jones signed a consent form allowing the officers to search the premises. During their search, the officers utilized an ultraviolet (UV) light to ascertain whether any blood or bodily fluids were present, and to determine if anyone attempted to "clean up the area." The officers used the UV light in the basement, including the beige armchair, but did not use the UV light on the porch, or in the bathroom. The officers performed a visual search of those areas, but found no evidence of blood or bodily fluids, and no evidence that anyone had tried to "clean up" the scene.

Officers later returned to the apartment, again secured the consent of Jones to conduct a search, and while moving furniture to further inspect the carpet in the porch, a detective observed blood on the back side of "a white resin chair." Fuentes testified that the porch was messy, and that the carpet did not appear to have been swept or cleaned. No other blood evidence was discovered.

The blood sample from the chair, the DNA evidence from the sexual-assault kit, and the clothing Sara wore on the night of the assault, were tested by DNA analyst Donna Hansen of the Union County Prosecutor's Office. Hansen found evidence of an unidentifiable third-party's semen from the samples collected in the sexual-assault kit. The blood from the chair in the porch of Jones' apartment matched Sara's blood; however, no DNA collected matched defendant.

On October 18, 2011, defendant filed a Notice of Intent to Assert Evidence of Semen Source, under the Rape Shield Law, N.J.S.A. 2C:14-7. Defendant sought to admit DNA evidence of another man's semen found on the victim's shorts. The next day, the trial judge heard and denied defendant's application to admit that evidence.

The trial judge decided,

The semen on the clothing of the victim has nothing to do with whether the victim consented or did not consent to sex with the defendant. In sum [t]he [c]ourt finds that the evidence offered by defendant regarding the sexual conduct of the victim is neither relevant nor highly material and does not meet the requirements of 2C:14-7C.

 

Furthermore, [t]he [c]ourt finds that the low probative value of the evidence is substantially outweighed by a danger of prejudice. The [c]ourt in [State v. Ryan, 157 N.J. Super. 121 (App. Div. 1978)] held that when the evidence of the complaining witness's prior sexual conduct appears to be inadmissible on its face, as it does here in this case - - that s the instant matter - - the hearing called for in the statute is not required. [Id.] at 125-26. As such, the evidence of the semen found on the victim's clothing is hereby held inadmissible at defendant's trial.

 

Following trial, as we have noted, the jury convicted defendant of second-degree sexual assault and third-degree aggravated assault.

This appeal followed.

II.

 

Defendant argues that the trial court erred by prohibiting him from admitting evidence of another man's semen on Sara's shorts on the night she was allegedly raped which prevented him from presenting a complete defense, in violation of his federal and state constitutional rights to confrontation, compulsory process, and due process. Defendant argues:

By allowing admission of the DNA evidence, [defendant] could explore [Sara's] on-again off-again sexual relationship with Wilkins - - who may have been jealous that [Sara] spent the night with [defendant] - - and rebut [Sara's] assertion that she was not in a relationship with Wilkins and lied to the police about having been raped and assaulted by [defendant] in order to protect or appease her ex-boyfriend.

 

We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J. Super. 88, 135 (App. Div. 2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of a clear abuse of discretion, meaning, a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012). An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted. Ibid.

In the present case, when faced with the evidence, the trial court found that it qualified as sexual conduct of the victim, and was hence precluded by the Rape Shield Law. The court further found that the evidence was irrelevant because it "has nothing to do with whether the victim consented or did not consent to sex with [] defendant." We disagree.

The Rape Shield Law serves to presumptively exclude evidence relating to a victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). A defendant seeking to introduce such evidence for any purpose must ordinarily make application prior to trial. Ibid. The Rape Shield Law allows testimony regarding a victim's prior sexual history with a person other than the defendant only when it relates to proving that another individual is the source of certain physical evidence, or when the evidence could negate the element of force. N.J.S.A. 2C:14-7(c), (d); State v. Budis, 125 N.J. 519, 530 (1991). The purpose of the law is to "'protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant.'" State v. Schnabel, 196 N.J. 116, 128 (2008) (quoting 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)).

The Legislature's expression of policy is subject to constitutional constraints. The United States and New Jersey Constitutions ensure to criminal defendants "a meaningful opportunity to present a complete defense." Garron, supra, 177 N.J. at 168. As the Court noted in Garron, the constitutional rights of confrontation and compulsory process have "long been recognized as essential to the due process right to a 'fair opportunity to defend against the State's accusations,' and thus [are] 'among the minimum essentials of a fair trial.'" Id. at 169 (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973)).

In order to protect a defendant's right to a fair trial, "'evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact.'" Schnabel, supra, 196 N.J. at 130 (quoting Garron, supra, 177 N.J. at 172). In determining the admissibility of evidence of prior sexual conduct, a court must first determine whether the evidence is relevant to the defense. Budis, supra, 125 N.J. at 532. If relevant, the court must then decide whether the probative value outweighs the prejudicial effect to the victim. Ibid. "The probative value of the prior acts depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense." Id. at 533.

In J.A.C., supra, 210 N.J. 281, the Supreme Court narrowed the scope of the Rape Shield Law in order to reconcile its purposes with a defendant's right to a fair trial. The Court eliminated the statutory requirement that such evidence be "highly material" and that its relevance "substantially outweigh" the collateral nature of the evidence as well as its prejudice to the victim. 210 N.J. at 298. The Court noted that

N.J.S.A. 2C:14-7 should be construed to permit evidence of a victim's sexual conduct if "the evidence [is] relevant to the defense . . . [and] its probative value outweighs its prejudicial effect." Budis, supra, 125 N.J. at 532. That test was reaffirmed and refined in Garron, in which the Court held that "evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact," and concluded that "evidence that is relevant and necessary to prove the defense of consent," which was at issue in that case, would be admitted. Garron, supra, 177 N.J. at 172-73.

 

On the first component of the test -- the relevancy of the evidence at issue -- the definition of relevance found in N.J.R.E. 401 provides guidance: "'[r]elevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." . . .

 

. . . .

 

The second prong of the analysis set forth in Budis and Garron requires the court to balance the probative value of the contested evidence against its prejudicial impact. The "probative value" of evidence is "its tendency to establish the proposition that it is offered to prove." Garron, supra, 177 N.J. at 167 n.2 (citing State v. Wilson, 135 N.J. 4, 13 (1994)). The probative value of sexual conduct covered by N.J.S.A. 2C:14-7 "depends on clear proof that [the conduct] occurred, that [it is] relevant to a material issue in the case, and that [it is] necessary to a defense." Budis, supra, 125 N.J. at 533 (citing State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325, 335
(1990)). . . .

 

. . . Consistent with the balancing test of N.J.R.E. 403, a trial court should consider the impact of a given ruling on a victim reporting sexual abuse, and should guard against jury confusion and misleading inquiry. . . . N.J.S.A. 2C:14-7 and the case law mandate caution in the use of evidence with the potential to distract the jury from the material issues before it.

 

In short, in accordance with our construction of N.J.S.A. 2C:14-7, trial courts are required to carefully weigh the relevance, necessity and impact of evidence relating to a victim's sexual history, and to impose case-specific parameters, where appropriate, to any such evidence admitted.

 

[Id. at 298-301.]

 

For the purposes of this case, the applicable subsection of N.J.S.A. 2C:14-7 is (c), which provides that the use of "[e]vidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." Because the subsection's list of subjects that may be material "is illustrative rather than exhaustive," State v. Scherzer, 301 N.J. Super. 363, 412 (App. Div.), certif. denied, 151 N.J. 466 (1997), the source of the semen is potentially material.

Defendant contends that the evidence of another man's semen found on Sara's shorts is relevant to his theory of third-party guilt "that Sara was assaulted by Wilkins and lied to the police about having been raped and assaulted by [defendant] in order to protect or appease her ex-boyfriend." Consequently, defendant claims that without the admission of this evidence he was denied his constitutional right to present a complete defense.

The trial judge found that the evidence was inadmissible under the defense of consent because the evidence did not meet the statutory requirements outlined in N.J.S.A. 2C:14-7, and Budis, supra, 125 N.J. 519. First, he determined that "the existence of the semen on [Sara's] jeans [was] not relevant to a material issue in this case[,]" because defendant "admitted to having sexual intercourse with Sara [and] . . . [a]s such the evidence cannot be deemed material to proving the source of semen, pregnancy or disease. 2C:14-7C." Further, the judge found "that the third-party semen found on [Sara's] clothing [was not] necessary to the defense of consent, as this evidence has no bearing on the nature of [Sara's] sexual relationship with the defendant."

The trial judge also found that this case was similar to Ryan, supra, 157 N.J. Super. 121. However, Ryan, is distinguishable from the case at bar. In Ryan, this court held "[e]vidence of specific instances of a rape victim's consensual sexual intercourse with a person other than the accused is not admissible for the purpose of drawing an inference of consent in another instance, or for impeachment purposes." Id.at 125-26 (internal citations omitted). Here, defendant seeks to introduce the evidence of semen found on the Sara's shorts, not for the purpose of proving consent, but rather, to establish third-party guilt.

The trial judge determined that the evidence was inadmissible under the theory of third-party guilt, explaining,

based on the law in this case it is clear that defendant's proffer in this case 1) does not connect to any concrete or person to cast the blame on, and 2) we have a verification by the State that this faction of semen that was found on the shorts of the victim in this case was positively not that of the defendant in this case. So, therefore, without any third party to try to say - - and then, first off, I already ruled the semen was inadmissible, and this is another way to try to admit it, the defendant in this case points to no other party without conjecture, and it still doesn t vitiate the fact that the defendant and this individual had sex and the question is whether it was consensual or not, and does not go to the issue of third-party guilt, since there's only conjecture. There was nothing given to investigate, no fingers pointed at anyone. In fact, I think - - I believe the State had indicated that they ran the sperm identifiers and came up with no identifiable in CODIS.

We disagree that the evidence is inadmissible with respect to third-party guilt, especially given the broad reach of the theory of third-party guilt in New Jersey.

"Courts must provide criminal defendants with a meaningful opportunity to present a complete defense." State v. Cotto, 182 N.J. 316, 332 (2005) (citing Garron, supra, 177 N.J. at 168) (internal quotations omitted). A complete defense includes the "right to introduce evidence of third-party guilt 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Ibid. (quoting State v. Fortin, 178 N.J. 540, 591 (2004)); see also State v. Koedatich, 112 N.J. 225, 301-02 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

The decision to admit or exclude evidence of third party guilt is "particularly fact-sensitive" and rests within the trial court's discretion. State v. Loftin, 146 N.J. 295, 345 (1996). To admit the evidence, there must be some link between the third-party and the victim or the crime. Koedatich, supra, 112 N.J. at 300-03. "There is no burden on the defendant to prove his innocence through the introduction of evidence of third-party guilt." Fortin, supra, 178 N.J. at 591. The defendant does not have "to provide evidence that substantially proves the guilt of another, but to provide evidence that creates the possibility of reasonable doubt." Cotto, supra,, 182 N.J. at 333 (citing Fortin, supra, 178 N.J. at 591); see, e.g., Koedatich, supra, 112 N.J. at 302-03 (holding inadmissible proffered testimony regarding obscene phone calls made by a part-time football coach at the victim's high school because it raised only a possible ground of suspicion, not a sufficient link between the coach and the victim).

However, it "is not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case." State v. Sturdivant, 31 N.J. 165, 179 (1959) (citations omitted), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).

In New Jersey, courts have consistently taken a liberal approach on the admission of evidence pertaining to the theory of third-party guilt. See State v. Millett, 272 N.J. Super. 68, 99-10 (App. Div. 1994) (finding evidence of four males sitting in a car across the street from the gas station near the time of the murder relevant because it raised a reasonable doubt on the issue of defendant's guilt); State v. Jorgensen, 241 N.J. Super. 345 (App. Div.), certif. denied, 112 N.J. 386 (1990) (holding that the trial court erred by requiring defendant's proffered evidence that a person who looked like him might have committed the crime had to have the capacity to establish the probability of another's guilt rather than engender a reasonable doubt about an essential element of the prosecution's case).

Moreover, a defendant may introduce third-party guilt evidence if it tends to undermine critical evidence of the defendant's guilt, rather than linking the third-party through motive or criminal conduct. Jorgensen, supra, 241 N.J. Super. at 351. Indeed, "[t]here is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense. . . . [O]ur focus is on the effect the evidence has upon the defendant's culpability, and not the third party's culpability." Ibid. (citing Johnson v. U.S., 552 A.2d 513, 517 (D.C. 1989)). Even if there is no evidence linking another specific suspect to the crime, "courts have recognized that evidence that tends to create reasonable doubt that someone else, generically, rather than defendant, committed the offense, is admissible." Loftin, supra, 146 N.J. at 345 (citing Jorgensen, supra, 241 N.J. Super. at 315). In cases where there is evidence of a specific third-party's guilty, "[t]he evidence, in order to be admissible, need not establish a probability of a third-party guilt. There need only be proof capable of raising a reasonable doubt on the issue of defendant's guilty. Millett, supra, 272 N.J. Super. at 100 (citations omitted).

Here of course defendant does not identify a phantom third party, but rather, has suggested an identifiable party, the victim's boyfriend Wilkins may have been the perpetrator. The evidence of semen was relevant, and its probative value outweighed any prejudice. First, the evidence of semen was relevant to defendant's theory that another man committed the crime. N.J.R.E. 401 broadly defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Sara is alleging she was sexually assaulted, and the evidence defendant is seeking to introduce has a tendency to create a reasonable doubt that he committed the crime. Moreover, this was not mere conjecture, with "no fingers pointed at anyone," as determined by the judge. It is clear that defendant pointed at Wilkins.

In addition, the probative value outweighs any prejudice. The probative value of evidence is "its tendency to establish the proposition that it is offered to prove." Garron, supra, 177 N.J. at 167 n.2. In a sexual assault case, the potential prejudice is the impact upon the victim of sexual abuse. Here, the evidence of another man's semen has a tendency to support the assertion that someone else committed the assault, and if offered for that limited purpose, the likelihood of prejudice to the victim is outweighed by its probative value. The jury's determination of defendant's guilt depended on whether it believed his story, or Sara's story. The omission of the semen evidence was crucial to the credibility of defendant's version, and as such its exclusion was not harmless error. Jurors are the sole judges of credibility, and they were entitled to know that another man was the sole source of semen found in the victim's sexual-assault kit, as it may have discredited Sara, and shown a possible motive to lie.

We suggest that our dissenting colleague takes a rigid approach to third-party guilt that is inconsistent with our developing case law. Whether or not the theory of third-party guilt in this case is clear, or even convincing, is not the issue. We determine simply that it meets the minimum threshold our Court has set for the admission of the evidence.

Because we have reversed defendant's conviction and remanded for a new trial, there is no need to address defendant's arguments respecting his sentence. Finally, although we find no clear error in judgment in the trial court's admission of statements made by defendant to Sara during the incident, we determine that if, upon retrial, such evidence is again offered, the court should conduct a hearing under N.J.R.E. 104 to determine admissibility. If the statements are found to be admissible, the trial court should provide clear, limiting instructions to the jury respecting the permissible uses for such evidence, if it finds that defendant made such statements.

Reversed and remanded for a new trial.

 

 

 

 

GUADAGNO, J.A.D., dissenting.

I believe that the trial court properly applied the Rape Shield Law to exclude evidence proffered by defendant that served only to establish that the victim engaged in sex with an unknown third party. For that reason, I respectfully dissent.

New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7, is designed to protect "the privacy of a victim of sexual assault against unwarranted exploration of his or her character and conduct." J.A.C., ante, 210 N.J. at 285. It serves to presumptively exclude evidence relating to a victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). Trial courts are required to "evaluate the relevancy and necessity of the disputed evidence and balance its probative value against its prejudicial effect." Id. at 287.

Defendant conceded that he was intimate with the victim but claimed the sex was consensual and denied any assaultive behavior. His defense was that the victim was assaulted by Wilkins and she fabricated the claims against defendant to "appease her ex-boyfriend."

Applying the two-pronged analysis set forth in Budis, ante, 125 N.J. at 532-34, and Garron, ante, 177 N.J. at 172-73, the relevancy and necessity of the disputed evidence must be evaluated and its probative value must be weighed and balanced against its prejudicial effect.

The trial court engaged in the required analysis and found that the unidentified semen on the victim's shorts had nothing to do with whether the victim consented to sex with defendant and the evidence regarding her sexual conduct was neither relevant nor highly material under N.J.S.A. 2C:14-7(c). The court also found that the low probative value of the evidence was substantially outweighed by a danger of prejudice. We are obligated to defer to this ruling "'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

Clearly, the evidence of semen on the victim's shorts from an unidentified third party constitutes "sexual conduct" within the meaning of N.J.S.A. 2C:14-7(f), which encompasses "any conduct or behavior relating to sexual activities of the victim[.]" Defendant's purpose in introducing the victim's stained shorts was to demonstrate her sexual activity with someone other than him, and to argue, without a smidgen of proof, that Wilkins was the source of the semen.

The majority, perhaps implicitly conceding that the challenged evidence does nothing to support defendant's claim that his sex with the victim was consensual, faults the trial court's analysis that the evidence was inadmissible under the theory of third-party guilt. Ante at __ (slip op. at 16). The majority views the excluded evidence as relevant because it tends to disprove the fact that defendant committed the crime. Ante at __ (slip op. at 20). I disagree, and reject their conclusion that "the evidence of another man's semen has a tendency to support the assertion that someone else committed the assault[.]" How so?

First, there was no proof that the semen came from Wilkins. The victim testified that, in August 2009 at the time of the assault, she had broken up with Wilkins and was dating another man. The DNA could have come from him or any other sexual partner she may have had during this time period. Even if the semen was linked to Wilkins, there is no proof when the DNA evidence was deposited on the victim's shorts and certainly no evidence that it occurred during the brief time period suggested by defendant, after the victim left the apartment until she arrived, with Wilkins, at the Maplewood Police Department.4

Semen on a victim's clothing that could have been deposited by any of her sexual partners during the weeks or even months prior to the incident does not, as claimed by the majority, tend to support the assertion that someone other than defendant committed the assault. Moreover, it is exactly the type of embarrassing and unwarranted exploration of the victim's character and conduct that the Rape Shield Law was designed to exclude. See State v. P.S., 202 N.J. 232, 261 (2010) (The Rape Shield Law guards against "unwarranted and unscrupulous foraging for character-assassination information about the victim."). The probative value of this evidence is negligible and is substantially outweighed by its prejudice.

My colleagues in the majority suggest that my approach to third-party guilt is rigid and inconsistent with our developing case law. Ante at __ (slip op. at 20). However, none of the third-party guilt cases cited by them, see ante at __ (slip op. at 16-19), involve the Rape Shield Law, and all reaffirm the principle that third-party guilt evidence must have "a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Fortin, ante, 178 N.J. at 591. Our case law consistently rejects third-party evidence that is based on mere conjecture. See, e.g., Cotto, ante, 182 N.J. at 333 (record did not support even the "mere conjecture" of the third-party's guilt); Koedatich, ante, 112 N.J. at 302 (the proffered testimony did not draw a sufficient link between the third party and the victim); Sturdivant, ante, 31 N.J. at 179 (not enough to prove some hostile event and leave its connection with the case to mere conjecture).

Also, I find defendant's argument, now adopted by the majority, that the semen evidence was not offered for the purpose of proving consent, but to establish third-party guilt, to be illogical. If defendant's sex with the victim was not consensual, his guilt has been established, even if the victim subsequently engaged in sex with Wilkins.

The trial court properly applied the Rape Shield Law to exclude the DNA evidence that related to the victim's prior sexual history. That evidence was irrelevant to the issue of whether the victim consented to having sex with defendant and provided no support to defendant's claim that Wilkins assaulted her.

 

 

1 We utilize a fictitious name for the putative victim identified in the indictment.

2 At the time of trial, Sara and Wilkins had resumed their relationship, and had been dating for about one year. Wilkins did not testify at trial.

3 While speaking with Sara, Guglielmo realized the alleged assault did not occur in Maplewood; rather, it occurred in the Township of Union, and therefore, he notified the Union Police Department.

4 In her summation, defense counsel estimated this period as one hour and five minutes.