State v. Bethune

• Decision Date: 01 May 1989
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph BETHUNE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 532

232 N.J.Super. 532

557 A.2d 1025

STATE of New Jersey, Plaintiff-Respondent, v. Joseph BETHUNE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted May 10, 1988.

Decided Aug. 8, 1988.

Remanded by Supreme Court Nov. 15, 1988.

Resubmitted March 15, 1989.

Decided May 1, 1989.

Alfred A. Slocum, Public Defender, for defendant-appellant (Harold J. Bush, Designated Counsel, on the supplemental letter brief).

Peter N. Perretti, Jr., Atty. Gen., for plaintiff-respondent (Chana Barron, Deputy Atty. Gen., of counsel and on the supplemental letter brief).

Before Judges PETRELLA and SHEBELL.

The opinion of the court was delivered by

SHEBELL, J.A.D.

This matter arises from defendant's 1983 convictions in the Law Division on two counts of aggravated sexual assault upon R.B., which he appealed to this court. We affirmed in our opinion of August 8, 1988. Defendant petitioned for certification to the Supreme Court. The Supreme Court ordered that the matter be "summarily remanded to the Appellate Division for clarification of its disposition of the 'fresh complaint' issues raised in defendant's letter to the Appellate Division dated March 24, 1988." 114 N.J. 304, 554 A.2d 857. This court had inadvertently not considered the "fresh complaint" issues in its prior opinion. We requested of the parties and have received briefs on the remanded issue.

The essential facts are set forth in our August 8, 1988 opinion. Preliminarily, it is sufficient to state that defendant's conviction involved sexual assaults upon five-year old R.B. Approximately one or two weeks after the assaults, R.B. was taken to the hospital for a physical examination by two Division of Youth and Family Services workers. The child denied to the examining physician that she had been sexually abused. However, on the following day, Peggy Foster, a social worker at the hospital, discussed the incidents with R.B., and the child discussed and demonstrated the assaults by the use of anatomically correct dolls.

I.

Defendant contends that Ms. Foster's testimony relating R.B.'s statements about the assaults was erroneously admitted as "fresh complaint" testimony, citing State v. J.S., 222 N.J.Super. 247, 536 A.2d 769 (App.Div.), certif. den. 111 N.J. 588, 546 A.2d 513 (1988). No objection was made before the trial court that Ms. Foster's testimony regarding R.B.'s "fresh complaint" should not be permitted as it was the product of questioning.

The "fresh complaint" rule permits the introduction of evidence that the victim of a sexual assault complained of the proscribed act within a reasonable time after the act occurred to someone who she would normally turn to for sympathy, protection or advice. State v. Balles, 47 N.J. 331, 338, 221 A.2d 1 (1966), app. dism., cert. den. 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1967); N.J. Youth & Family Serv. Div. v. S.S., 185 N.J.Super. 3, 8, 447 A.2d 183 (App.Div.), certif. den. 91 N.J. 572, 453 A.2d 883 (1982).

In State v. Kozarski, 143 N.J.Super. 12, 362 A.2d 598 (App.Div.), certif. den. 71 N.J. 532, 366 A.2d 687 (1976), the defendant contended for the first time on appeal that the "complaint" of the infant victim of a sexual assault should not have been admitted under the "fresh complaint" rule, as it "may not have been a complaint at all, but may have been elicited under questioning by the mother." Id. 143 N.J.Super. at 17, 362 A.2d 598. The court did not decide the issue, as testimony of a different, unchallenged, "fresh complaint" witness had been admitted and there was thus no plain error. Ibid. As noted by appellant, in J.S., 222 N.J.Super. at 253, 536 A.2d 769, it was stated that in order for a statement by a victim of a sexual assault to be admitted under the "fresh complaint" rule, it must have been self-motivated and not extracted by interrogation. Cf. State v. D.R., 109 N.J. 348, 359, 537 A.2d 667 (1988), ("[A] child victim's spontaneous out-of-court account of an act of sexual abuse may be highly credible because of its content and the surrounding circumstances.") and proposed Evid.R. 63(33) in appendix to opinion.

Other jurisdictions are split on the issue of whether to admit statements which follow questioning under the "fresh complaint" doctrine. Compare Illinois v. Alexander, 11 Ill.App.3d 782, 789, 298 N.E.2d 355, 360 (1973) (statements of rape victim upon questioning may constitute "fresh complaint") with Ketcham v. Indiana, 240 Ind. 107, 112, 162 N.E.2d 247, 249 (1959) (statement received by mother from five year old child not admissible as "fresh complaint" as story was "drawn out reluctantly by questions.")

Ms. Foster, the hospital social worker, when asked on direct examination by the prosecutor what R.B. had said to her, responded:

I interviewed her by asking her questions regarding her body. I asked her where her nose and mouth was [sic ], I went over her body parts with her. I asked her at that time if anyone--anybody had touched her in the genital area and when going over the body parts, she identified her vagina as her privates. She identified the male anatomy as--the penis as the dicky. She then told me that Joey had put his dicky in her privates.

When asked what she did when she approached R.B., Ms. Foster responded, "I introduced myself to her. I told her what my job was at the hospital. I told her that I needed to ask her some questions about why she was in the hospital and then I showed her the dolls." Thus, R.B.'s complaint was not spontaneous, but flowed from questioning by Ms. Foster.

Evidence of "fresh complaint" is not offered as proof of the truth of the matter contained in the complaint, rather it is used to respond to the fact finder's natural assumption that if the act complained of had occurred, an early complaint would have been made. Balles, 47 N.J. at 338-40, 221 A.2d 1. "The function of such evidence is not corroboration or substantive proof but solely to sustain the credibility of the witness." State v. Gambutti, 36 N.J.Super. 219, 229, 115 A.2d 136 (App.Div.1955).

The label "fresh complaint" is not rigidly adhered to, as testimony of this nature is competent even when it is not truly "fresh." 4 Wigmore, Evidence (Chadbourn Revision 1972) § 1135 at 301-03. The length of the delay is a factor to be considered as relevant to the weight to be given to the fresh complaint under all of the accompanying circumstances. Ibid. We have refused to adopt an inflexible approach on the issue of timeliness of the child's complaint. Kozarski, 143 N.J.Super at 16, 362 A.2d 598; State v. Hummel, 132 N.J.Super. 412, 423, 334 A.2d 52 (App.Div.), certif. den. 67 N.J. 102, 335 A.2d 54 (1975). The timeliness of the complaint and any circumstances explaining the delay are treated as questions for the jury. See Balles, 47 N.J. at 341, 221 A.2d 1.

It was stated in State v. Schaeffer that to a large extent the rule pertaining to "fresh complaint" is an arbitrary exception to the hearsay rule, and having determined that the testimony is competent, there is no sound reason why a greater lapse of time should render it incompetent, when the delay in making the complaint can be considered as relevant to the weight to be given to such testimony. 87 N.J.L. 663, 667 (E. & A.1915). The same rationale is viable here.

At least with regard to children of tender years, the fact that the complaint was made in response to questioning need not be fatal to admissibility. It must be considered that there may be a reluctance on the part of an abused, and consequently confused and troubled young child, to discuss a traumatic sexual incident. Cf. D.R., 109 N.J. at 359-60, 537 A.2d 667. It is only natural and realistic not to require that the complaint be entirely volunteered and spontaneous. Having established that a jury may weigh the value of the complaint where freshness is in issue, we see no reason why that same consideration should not extend to the circumstances under which the complaint was made, i.e., whether in response to questioning or volunteered. To the extent that J.S. implies a contrary result, we are compelled to disagree with its position.

A proper instruction will focus the jury's attention on the issue of whether the "complaint" is truly from the child in all of the circumstances, including whether it was volunteered or the result of interrogation. It is for the jury to decide whether the complaint is sufficiently probative to dispel a contention that no complaint was in fact made at a point in time when, if the assault had occurred, the child would have made the fact known. In many cases the child's first opportunity for complaint may be coincidental with interrogation. We expect that the scenario often follows a pattern where the child is upset, crying and otherwise disturbed and is then questioned by a parent or other authority figure, and for the first time discloses what has taken place. Here, the court effectively admonished the jury to consider all of the circumstances surrounding the child's complaints.

II.

Defendant also contends that additional testimony given by Ms. Foster "exceeded the permissible content of fresh complaint testimony," and was "incurably prejudicial, as it conveyed the allegation that defendant habitually molested R.B.." Ms. Foster testified at trial that R.B. had told her that the sexual assault had happened "a lot of times."

It is clear that "in cases of sexual abuse of an infant, testimony of similar incidents involving the same parties is admissible." State v. Hintenberger, 41 N.J.Super. 597, 605, 125 A.2d 735 (App.Div.), certif. den. 23 N.J. 57, 127 A.2d 227 (1956). Testimony by a third party to a victim's "fresh complaint," however, may only confirm the fact of the complaint and may not recount the details of the victim's complaint. See Balles, 47 N.J. at 339, 221 A.2d 1.

In applying this rule, it has been held that while the witness should not be permitted to tell the particulars of the complaint, enough...