State v. BudisState v. Budis
POINT I:
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.
POINT II:
THE DEFENDANTS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURTS PREJUDICE.
POINT III:
THE DEFENDANTS FIFTH AMENDMENT RIGHT AGAINST SELF INCRIMINATION WAS VIOLATED BY THE INTRODUCTION INTO EVIDENCE OF HIS PRETRIAL STATEMENT.
POINT IV:
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
POINT V:
THE DEFENDANT SHOULD BE ADMITTED TO BAIL PENDING APPEAL.
We have carefully reviewed this record in light of the claims advanced by defendant and conclude that defendant was denied a fair trial because of an interpretation of
In May 1988, T.D., who was then 10 years old, was playing a Nintendo game with a relative. The game featured two characters boxing. While playing the game, T.D. commented that it looked like one of the characters “was sucking the other guy
An investigation was conducted by a detective from the Somerset County Prosecutor‘s Office, who met with T.D. and taped two statements. In the first statement, T.D. said that defendant, who is her father‘s cousin, was visiting on an evening in July 1987, when the family went swimming in the apartment complex pool at night. According to T.D., defendant took her back into the apartment to get changed, and once inside he placed his erect penis in her mouth and her vagina, but that nothing came out of his penis. She said that a few days later the family went to Dorney Park for her brother‘s birthday. Defendant went with them and slept over. During the night, he came into her bedroom and once again placed his erect penis in her mouth and her vagina.
The second statement referred to T.D.‘s former stepfather, H.D. In her statement, T.D. said that on five or six occasions during the fall of 1986 while they were living in the same household, H.D. took her into his bedroom at night and placed his erect penis in her mouth and her vagina. She said that he did this for about an hour at a time, but that nothing came out of his penis. Upon questioning, H.D. admitted to three sexual encounters with T.D. He was indicted and subsequently pled guilty to one count of sexual assault and one count of aggravated sexual assault. He has since been sentenced.
On May 25, 1988, the detective sought to question the defendant about T.D.‘s allegations. Defendant acknowledged that two sexual encounters with T.D. occurred during the previous summer but differed with T.D.‘s description of the events. Defendant said that on the occasion of T.D.‘s brother‘s birthday, he slept on the couch. Shortly after he went to sleep, he
At trial, the testimony of T.D. was essentially the same as her prior statements to the police. When defendant was confronted on cross-examination with his prior inculpatory answers, he gave these explanations. He said that his statement that what T.D. did to him after they went swimming “felt good” meant that “it didn‘t hurt.” He also said that his description of what T.D. did when he woke up on the couch as lasting “maybe five minutes” was a figure of speech; it actually was only a few seconds before he pushed her away.
During discussions outside the presence of the jury, defense counsel indicated that he needed to elicit testimony as to the prior sexual abuse to which T.D. had been subjected by her stepfather in order to show sexual knowledge for the purpose of preventing the jury from dismissing outright defendant‘s testimony that a child would be inclined to initiate sexual contact. The trial judge ruled that the rape shield statute (
First of all I — I do not agree with the contention of defense counsel that you can show as to a child that which you couldn‘t show as to an adult woman. That to me is absolutely beyond belief. If an adult engaged in each of these alleged acts with an adult male, you could not show it in a charge of aggravated
sexual assault involving another and distinct different, different person. You would not be permitted. And it‘s urged to me that you should be permitted to do it with a child. First of all, I will not permit any examination of this child with respect to any sexual activity other than the sexual activity charged in this indictment. Either by direct examination or cross-examination.
I will permit the examination of the detective within the limited area, to wit, did he investigate allegations of sexual abuse by her stepfather. And I will not permit the details of those — that alleged sexual abuse to be brought before this jury.
Defense counsel cross-examined T.D. on how she responded to her father‘s inquiry as to where she learned about sex:
Q. And then you finally said [the defendant] Uncle Jimmy, right?
A. Yes.
Q. Did you say anything else?
A. And Bud [her step-father].
Q. (Indicating not hearing.)
A. And Bud.
Q. And Bud?
A. Yes.
Q. That would be your stepfather?
A. He was, but he is not anymore.
Defense counsel also cross-examined the detective on his investigation:
Q. She related these incidents about Mr. Budis in 1987.
A. Yes.
Q. And she also related something about some incident in 1986 concerning somebody other than Mr. Budis; isn‘t that so?
MR. VAN HISE: Objection, your Honor.
THE COURT: I‘ll permit that.
A. Yes, sir.
Q. Involving her stepfather. Isn‘t that so?
MR. VAN HISE: Objection.
THE COURT: This will be the end of it. I will permit that question and the answer.
A. Yes, sir.
Q. And there‘s was —
THE COURT: Obviously, ladies and gentlemen, any prior incidents are not before you for your determination in the course of this trial.
Q. And there was an investigation by you into that as well.
A. Yes.
Q. Okay.
The Sixth Amendment to the United States Constitution guarantees the right of the accused in a criminal prosecution “to be confronted with the witnesses against him.” This right has been extended by the Fourteenth Amendment to protect the accused in state proceedings. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Williams, 182 N.J. Super. 427, 434, 442 A.2d 620 (App.Div. 1982).
In this case, defendant‘s request to inquire into the victim‘s prior sexual abuse was denied based upon
a. In prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, or endangering the welfare of a child in violation of N.J.S. 2C:24-4, evidence of the victim‘s previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, he must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.
b. In the absence of clear and convincing proof to the contrary, evidence of the victim‘s sexual conduct occurring more than 1 year before the date of the offense charged is presumed to be inadmissible under this section.
c. Evidence of previous sexual conduct shall not be considered relevant unless it is material to negating the element of force or coercion or to proving that the source of semen, pregnancy or disease is a person other than the defendant. For the purposes of this section, “sexual conduct” shall mean any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, living arrangement and life style.
Rape shield laws have been enacted in 48 of the 50 states, including New Jersey; the Federal Rules of Evidence and the Code of Military Justice also embody the principle, as does the
Among the remedial aims of rape shield laws is the protection of victims from harassment and invasion of privacy; encouragement of sex crime reporting; and avoidance of juror confusion. All of these salutary aims are advanced by
New Jersey initially addressed rape shield law concepts in
In prosecutions for the crime of rape, assault with intent to commit rape, and breaking and entering with intent to commit rape, evidence of the complaining witness’ previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this act. When the defendant seeks to admit the evidence for any purpose, he may apply for an order of the court at any time before or during the trial or preliminary hearing. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness, the court shall make an order stating what evidence may be introduced and the nature of the questions which shall be permitted. The defendant may then offer evidence under the order of the court.
While asserting a bar against the use of prior sexual conduct evidence this statute accorded the trial judge wide latitude in determining the admissibility of such evidence under traditional relevance rules on a case by case basis. In State v. Ryan, 157 N.J. Super. 121, 384 A.2d 570 (App.Div. 1978), we sustained a trial judge‘s decision to prohibit defense inquiry into a rape victim‘s prior sexual conduct with a person other than the defendant on issues of consent and credibility and held that, as to those issues, defendant‘s confrontation and due process rights under Davis v. Alaska, supra; Chambers v. Mississippi, supra, and Pointer v. Texas, supra were not violated.
precisely those circumstances in which sexual conduct evidence is highly relevant and material to the presentation of a defense and, therefore, constitutionally required. [Galvin, supra, at 812].
This is not to suggest that every general rule regarding the relevancy of evidence is invalid on its face. Where the same kind of evidence is frequently offered to prove the same material proposition, a standardized rule may be appropriate. Thus, for example, to the extent that our statute declares evidence of prior sexual conduct with third parties irrelevant to those issues on which it was traditionally admitted at common law, i.e., consent and lack of good moral character, it is not objectionable. The problem arises out of the Legislature‘s undertaking to anticipate, predict and prescribe every single factual context in which sexual conduct evidence might be relevant to a legitimate theory of defense. Without a fail-safe mechanism allowing the trial judge discretion to admit critical defense evidence which is not the subject of an exception, statutes like ours have the potential, as applied, to conflict with a defendant‘s right to a fair trial. See Cannel, supra, Comments 2, 4.
Whether this is the case depends upon resolution of the issue of whether and to what extent unexpected prior sexual conduct evidence is relevant and necessary to the defense. This requires an assessment of the proffer in light of the record, leaving aside for the moment any consideration of the statute. Here, the jury was presented with what was essentially a two-witness case. Although other witnesses testified, the outcome depended on whether the jury believed the victim or the defendant. Clearly, if the jury believed the victim there was ample evidence to support the verdict. However, there was
The problem with defendant‘s version of the events is the probable jury skepticism over the suggestion that a nine-year-old would know enough about sex to initiate such encounters. The reason why defendant proffered the evidence of the victim‘s prior sexual initiation through sexual abuse by her step-father was to dispel the devastating implication that this child of tender years could not have known of such intimate sexual acts unless they occurred at defendant‘s initiation. Contrary to the State‘s argument that this was irrelevant, we think an exquisitely important piece of evidence was excluded from the jurors’ consideration.
We are not alone in this view. In State v. Howard, 121 N.H. 53, 426 A.2d 457 (1982), the Supreme Court of New Hampshire analyzed a similar issue this way:
We believe that the average juror would perceive the average twelve-year-old-girl as a sexual innocent. Therefore, it is probable that jurors would believe that the sexual experience she describes must have occurred in connection with the incident being prosecuted; otherwise, she could not have described it. However, if statutory rape victims have had other sexual experiences, it would be possible for them to provide detailed, realistic testimony concerning an incident that may never have happened. To preclude a defendant from presenting such evidence to the jury, if it is otherwise admissible, would be obvious error. [Howard, 426 A.2d at 462.]
The Washington Court of Appeals ruled in an analogous case as follows:
Using this approach, our first inquiry is whether the evidence of prior sexual abuse was relevant. Defendant offered the evidence, not to attack the character of the little girls, but rather to rebut the inference they would not know about such sexual acts unless they had experienced them with defendant. Without the evidence the jury logically could draw the inference that they were conversant with such things only because defendant was guilty as charged. Consequently, the evidence was extremely relevant to defendant‘s defense, and its exclusion unfairly curtailed defendant‘s ability to present a logical explanation
of the victim‘s testimony. [State v. Carver, 37 Wash. App. 122, 678 P.2d 842, 843-844 (1984).]
Like results were reached in Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985) and People v. Ruiz, 71 A.D.2d 569, 418 N.Y.S.2d 402 (App.Div. 1979). See also State v. Jacques, where the Maine Supreme Court opined that:
Where the victim is a child, as in this case, the lack of sexual experience is automatically in the case without specific action by the prosecutor. A defendant therefore must be permitted to rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge. A number of jurisdictions with similar rules permit the admission of evidence of prior sexual activity for the limited purposes of rebutting the jury‘s natural assumption concerning a child‘s sexual innocence and of protecting the defendant‘s rights. Commonwealth v. Ruffen, 399 Mass. 822, 507 N.E.2d 684 (1987); State v. Peterson, 35 Wash. App. 481, 667 P.2d 645 (1983); State v. Carver, 37 Wash. App. 122, 678 P.2d 842 (1984); State v. Baker, 127 N.H. 802, 508 A.2d 1059 (1986). [Jacques, 558 A.2d 706, 708 (Me. 1989).]
The most recent decision on point is State v. Pulizzano, 456 N.W.2d 325, decided by the Wisconsin Supreme Court on June 12, 1990. There the trial judge, relying on Wisconsin‘s rape shield law, prohibited the admission of evidence that the child victim had previously been sexually assaulted. The evidence was proffered for the purpose of explaining that the victim had an alternate source of sexual knowledge. The Wisconsin Supreme Court held that although the statute barred the admission of the evidence, it was not unconstitutional on its face. However, according to the court, the statute, as applied, impermissibly infringed on defendant‘s rights to confrontation and compulsory process, which prevailed over the state‘s interest in promoting effective law enforcement. The court concluded that
to establish a constitutional right to present otherwise excluded evidence of a child complainant‘s prior sexual conduct for the limited purpose of proving an alternative source of sexual knowledge, prior to trial the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant‘s case; and (5) that the probative value of the evidence outweighs its prejudicial effect. [Pulizzano, supra, 456 N.W.2d at 335.]
Here, the State concedes that the prior acts did occur and that they closely resembled those in the present case. In fact, T.D. used nearly identical language to describe the events. However, the State disagrees as to the relevance and necessity of the evidence to the defense. The State‘s main argument is that the point of the proffer was to prove the victim‘s actual conduct on a given occasion based upon prior specific acts contrary to Evid.R. 47. This is not correct. The point of the evidence was not the victim‘s activity but her capacity to have acted as defendant says she did. Thus, it was offered not to invoke an inference as to how the victim behaved on the date of the crime but to establish a source of knowledge or familiarity with sexual matters under circumstances in which lack of knowledge and a concomitant lack of capacity to act was the likely inference which would be drawn by the factfinder.
The State also urges that this is unlike the out-of-state cases in which the issue was decided in favor of admissibility because defendant did not wholly deny the events. The argument fails because here, as in the case of absolute denial, fabrication by the child witness was the focus of the defense. The issue was not motive to fabricate but the possession of knowledge which provided ability to do so. For this purpose the excluded evidence of prior sexual assaults identical to those charged against defendant was crucial to defendant‘s cause.
The State finally urges that the admission of this evidence would “gut the core protection of the statute, and defeat all of the legitimate interests protected by it.” We disagree. In our view, its admission would not violate any of the overall remedial goals of the rape shield law. The evidence was not offered to establish any of the classic inferences the law was meant to interdict. Inclination to consent was not an issue in the case because of the victim‘s age. Further, the proffered testimony as to T.D.‘s prior victimization did not implicate her own “conduct”
We conclude that, as applied to bar the admission of what we view as crucial defense evidence,
We emphasize that our holding here is not meant to detract from the importance of the general principles embodied in
We cannot speculate as to how the jurors would have viewed this evidence. But as triers of fact and as sole judges of credibility of the witnesses, they were entitled to know that there was an alternative source for T.D.‘s sexual knowledge in order to make an informed judgment as to the credibility of her testimony and as to the guilt or innocence of this defendant.
We reverse and remand this case for a new trial consistent with this opinion.