People v. Jovanovic

• Decision Date: 21 December 1999
• Citation: 700 N.Y.S.2d 156,263 A.D.2d 182
• Parties: 1999 N.Y. Slip Op. 10,734 The PEOPLE of the State of New York, Respondent, v. Oliver JOVANOVIC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 156

700 N.Y.S.2d 156

1999 N.Y. Slip Op. 10,734

The PEOPLE of the State of New York, Respondent, v. Oliver JOVANOVIC, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 21, 1999.

Mark Dwyer, of counsel (Grace Vee and David M. Cohn, on the brief, Robert M. Morgenthau, attorney) for respondent.

Diarmuid White, of counsel (Brendan White, on the brief, attorneys) for defendant-appellant.

ANGELA M. MAZZARELLI, J.P., ISRAEL RUBIN, RICHARD T. ANDRIAS and DAVID B. SAXE, JJ.

SAXE, J.

On this appeal of his conviction for kidnapping, sexual abuse and assault, defendant Oliver Jovanovic asks us to examine certain issues regarding the application of the Rape Shield Law (CPL 60.42). We conclude that the trial court's evidentiary rulings incorrectly applied the Rape Shield Law, and, as a result, improperly hampered defendant's ability to present a defense, requiring reversal of his conviction and remand for a new trial.

The criminal charges arose from a date between Jovanovic and the complainant which took place after weeks of on-line conversations and e-mail correspondence. This appeal focuses on a number of statements made by the complainant in e-mails sent to Jovanovic. In these statements, she indicated an interest in participating in sadomasochism. Defendant's purpose in seeking to offer these statements in evidence was not to undermine complainant's character by demonstrating that she was unchaste. Rather, it was to highlight both the complainant's state of mind on the issue of consent, and his own state of mind regarding his own reasonable beliefs as to the complainant's intentions.

Nevertheless, the trial court concluded that these statements were inadmissible under the Rape Shield Law. Initially, we hold that a careful reading of the statute discloses it to be inapplicable to much of the evidence precluded at trial. Moreover, the preclusion of this evidence improperly interfered with defendant's right to confront witnesses. " '[C]riminal defendants have ... the right to put before a jury evidence that might influence the determination of guilt' " (Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 [citation omitted] ), and the trial court's discretion to exclude evidence must be "circumscribed by the defendant's constitutional rights to present a defense and confront his accusers" (People v. Hudy, 73 N.Y.2d 40, 57, 538 N.Y.S.2d 197, 535 N.E.2d 250). Accordingly, we hold that a new trial is required.

The Evidence at Trial

The People's case against Jovanovic was primarily founded upon the testimony of the complainant. She told a detailed story of becoming acquainted with Jovanovic through communications over the Internet, both by e-mail and by so-called "instant messages" ¹, as well as in a number of lengthy telephone conversations.

Their first contact took place during the summer of 1996. The complainant, a Barnard undergraduate who was home for the summer in Salamanca, a small town in upstate New York, went on-line and logged onto a "chat room" called "Manhattan", hoping to find other Columbia students there. In the course of a general discussion, she received an "instant message" from Jovanovic, and embarked upon a long, "instant message" private conversation with him. Their first conversation quickly took on an intimate tone; for instance, in response to Jovanovic's information that he studied molecular genetics and computational biology at Columbia and ran a small multimedia design firm with his brother, the complainant said "I may love you, hold a sec while I check the profile." When they shortly discovered that they both spent a lot of time in a particular building at Columbia, the complainant referred to "destiny" and asked "want to have coffee?"

In this first conversation, Jovanovic indicated his interest in the grotesque, the bizarre, and the occult. He mentioned Joel-Peter Witkin, explaining that Witkin creates photographs using corpses; he mentioned Eris, the Greek goddess of discord, and a group called the "Discordians" who, he said, try to "open people's eyes". The complainant brought up her interest in snuff films [i.e., films in which a person is killed], and her thoughts of making such a film herself.

Then, on October 9, 1996, the complainant sent Jovanovic an e-mail reminding him of their previous conversation, and raised again the subjects of snuff films and pagan rituals. He responded by e-mail (from Seattle) the next day, and she e-mailed back immediately. His next e-mail was on October 16, 1996, by which time he had returned to New York. She responded right away, continuing the tone of her earlier correspondence with him ("bring me anything back from Seattle?"). He did not write again until October 20, 1996. When she responded that evening, she (among other remarks) asked how tall he was.

He did not reply until November 10, 1996, when he asked "As for my height, why? Are you looking to be dismembered by a tall, dark stranger, or something of that sort? I'm sometimes strange and dark, but of average height, so perhaps you should look elsewhere. " ² When the complainant responded that same day, she wrote of the Columbia tunnels and their appropriate ambience for a snuff film. She asked if he had any ideas for murder plots. He responded the next day, November 11, 1996, with the suggestion that a film could be made of the true story of Sharon Lopatka (a woman who was killed in October 1996, allegedly by a man whom she had just met in person after developing an on-line relationship with him).

Their exchange of e-mail between November 13, 1996 and November 14, 1996 continued discussing fantasies for snuff films, and the complainant's purported interest in what she termed "a tall dark dismember-er."

In the complainant's e-mail of November 17, 1996, just after midnight, she told about having dragged a girl she knew to the emergency room after the girl was raped the previous night. The complainant's long message ended by describing herself as distraught. Jovanovic responded shortly thereafter with his phone number and an invitation to call if she wanted. She responded with "hey ... is this a plot to begin dismemberment," and equivocated about calling him. His e-mail replied "it's up to you, just realize that it is an option."

The next night, November 18th, the complainant's e-mail "explained" to Jovanovic her connection to the girl whom she had said was raped. The complainant told how she "fingered" ³ and then spoke to "one Luke, who was attached to one skitzophrenic (sic) stalker x-intrest (sic) d'amour." It was developed in testimony that the complainant had initiated an on-line conversation with Luke on October 31, 1996, and began an in-person intimate relationship with him shortly after that, and that Luke's ex-girlfriend, Karen Kahn, became jealous. It was this ex-girlfriend, Karen, whom the complainant brought to the hospital, following a telephone call in which Karen claimed to have been raped. Luke's trial testimony advanced his belief that when Karen telephoned the complainant and said she had been raped, she was motivated by a desire to interfere with his relationship with the complainant, whom he was supposed to meet with on the night of the phone call.

After Jovanovic sent an e-mail asking for details of the story she had told him about Karen and Luke, on the night of November 19, 1996 the complainant sent him a long e-mail in which she provided more information about the afternoon (November 1, 1996) when she had logged in and found e-mail from Luke, and from Karen, whose e-mail had warned her to stay away from Luke.

The complainant's e-mail to Jovanovic on November 20, 1996 asked "So Oliver, you keep mentioning film after film, but where pray tell am I supposed to find them?" She also indicated an intense desire to know more about him, and spoke of "too many taboos surrounding the questions I want to ask". Two hours later he replied "Taboos are meant to be broken. ... You'll simply have to ask more questions. Of course, that way lies dismemberment. " Soon after that, still on November 20, 1996, she e-mailed back, "I think you may just be toying with the idea of dismemberment" and told him that she has to push herself, see how far she can take it, testing her limits. She also warned, "arms and legs are not toys" and that "It could get sick. And just may."

After more e-mails back and forth during the late night/early morning hours of November 21, 1996, at about 2:30 a.m., the complainant referred to things getting "kind of intimate," and then, at about 5:00 a.m., Jovanovic ended his message with "Should I call you, or you call me." That afternoon her e-mail message included her phone number, with the message that she would be home around 3:00 that night.

He called at about 3:00 a.m. on November 22nd, and they spoke for approximately four hours. According to the complainant's trial testimony, Jovanovic invited her to see a movie with him that night, and she gave him the address of her dormitory.

The Complainant's Narrative of the Events of November 22-23, 1996

Jovanovic arrived at 8:30 p.m. on November 22, and suggested that they get something to eat. When they finished dinner at around 10:15, he said it was too late for the movie they had agreed upon, and asked if she wanted to see a video at his apartment instead. She said "I don't know"--explaining in her testimony that although she did not want to, she has trouble being assertive. Finally she agreed. He drove to three video rental outlets, but did not find what he wanted. He said he had some videos at his apartment, which was located in Washington Heights, and they proceeded to drive there, arriving at about 11:30 p.m.

Jovanovic gave her some tea, which she found to have a chemical taste, and a book of photographs by Joel Peter Witkin, depicting corpses placed in grotesque poses. They watched a video entitled "Meet the Feebles," in which Muppet-like...