State v. Garron

• Decision Date: 23 July 2003
• Citation: 827 A.2d 243,177 N.J. 147
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anderson GARRON, Defendant-Appellant.
• Court: New Jersey Supreme Court

827 A.2d 243

177 N.J. 147

STATE of New Jersey, Plaintiff-Respondent, v. Anderson GARRON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 4, 2003.

Decided July 23, 2003.

Edwin J. Jacobs, Jr., Atlantic City, argued the cause for appellant (Jacobs & Barbone, attorneys; Joseph A. Levin and Arthur J. Murray, West Long Branch, on the briefs).

Paul H. Heinzel, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Acting Attorney General of New Jersey, attorney).

Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for amicus curiae, Office of the Public Defender (Yvonne Smith Segars, Public Defender, attorney). The opinion of the Court was delivered by ALBIN, J.

A jury convicted defendant of aggravated sexual assault, rejecting his defense that the victim consented to have sexual relations with him. In a split decision, the Appellate Division affirmed. We must determine whether the trial court properly applied the Rape Shield Statute, N.J.S.A. 2C:14-7, in excluding evidence of the victim's past relationship with defendant. Defendant claims that the excluded evidence would have explained the events leading to the sexual encounter and to the victim's consent and, therefore, was critical to a fair trial. The State claims that the victim's prior conduct did not possess sufficient probative value on the ultimate issue before the jury, whether defendant forced the victim to perform a sexual act against her will. In these competing arguments are found the tension between defendant's right to confrontation and the compulsory process of witnesses, and the victim's right to be free from an unnecessary invasion of her privacy. We conclude that the trial court misapplied the Rape Shield Statute in keeping from the jury highly relevant evidence that was necessary for a fair determination of the case and, therefore, reverse and remand for a new trial. We also conclude that at the new trial, the court must charge the jury with any lesser-included offenses that are clearly indicated by the evidence, even in the face of objections by the defense or the State. A jury cannot be denied the opportunity to find guilt on a lesser-included offense as a result of the strategic posturing of the parties.

I.

A Cumberland County grand jury indicted defendant Anderson Garron for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4), third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, and second-degree official misconduct, N.J.S.A. 2C:30-2a, as a result of an encounter on September 28, 1998, between the victim, J.S., and defendant. The precise nature of that encounter was sharply contested by J.S. and defendant at trial. J.S. asserted that defendant raped her, whereas defendant claimed that the two engaged in a consensual sexual act. The history of the relationship between J.S. and defendant became the central focus of the pretrial proceedings and the trial itself.

J.S. worked as a secretary in the Cumberland County Prosecutor's Office from 1992 until March 1997, and then became a communications operator at Southern State Prison. During that period, defendant was a City of Bridgeton police officer, and his wife, Stephanie Garron (Mrs. Garron), was a detective at the same prosecutor's office. While employed at the prosecutor's office, J.S. saw defendant several times every month when he visited his wife. J.S. viewed her relationship with both Garrons as "friendly," until the day defendant "came to [her] house and ... raped [her]."

A. Rape Shield Hearing

In support of his consent defense, defendant sought to introduce testimony concerning J.S.'s conduct toward him in the years leading up to what he claims was a voluntary sexual encounter. In accordance with the Rape Shield Statute, the trial court conducted a pretrial hearing to determine the admissibility of evidence concerning the relationship between J.S. and defendant. N.J.S.A. 2C:14-7a, -7d. The nature of that relationship was graphically detailed through the testimony of five witnesses: defendant; his wife, Mrs. Garron; and three of J.S.'s former colleagues from the prosecutor's office.

Defendant testified that "every time" he visited his wife at the prosecutor's office J.S. would "flirt" with him. At times, "she would reach up around [his] neck and pull [him] down and give [him a] hug and brush herself against [him]." When they passed in the hallway, she would "bat her eyes" and "just smiling bump into [him]," and then as they engaged in conversation, she would "rub [his] arm or touch [his] chest." J.S. would tell defendant that he "spoiled [his] wife," that he "was too good to [his wife]," and that he "needed somebody like her." Additionally, she remarked that "she would like to have a white man like [him]" and that his wife "didn't deserve all the things she got." On one occasion, J.S. "grabbed [his] rear end" as he "was walking up the steps at the Prosecutor's Office." J.S. did not say anything, "she just kind of smiled." Much of J.S.'s conduct toward and banter with defendant was in the presence of other prosecutor's office employees, including defendant's wife. On her last day at the prosecutor's office in 1997, J.S. had defendant walk "to the corner of the building so [they] couldn't be seen from the front windows and she gave [him]" a "rather passionate kiss."

In the spring of 1998, defendant learned that a Fairfield Township bench warrant had been issued for J.S.'s arrest for failure to resolve a seatbelt violation summons. He went to J.S.'s house and told her that "she had a warrant out for a hundred bucks, to get it taken care of," and that she could post bail without having to be arrested. Several weeks later, when defendant discovered that the arrest warrant was still active, he returned to J.S.'s house to tell her "to get this thing taken care of." In the middle of July, defendant, while on duty, received a dispatch that J.S. was at the municipal building and "wanted to see [him] ... to pay for the warrant." Defendant handled the paper work on the warrant and gave J.S. a receipt. Defendant described what happened next:

I stood up to walk her out and she says you know you deserve a big old hug and kiss for this because I didn't put her in jail. And she came over like she always did and put her arm around my shoulders and ... kissed me again like the day she left work. And then she just kind of went hmmm. And that was it she left.

Approximately two weeks later, defendant was standing on the porch of the prosecutor's office waiting for his wife, when J.S. pulled up in her car. In response to a comment made by J.S., defendant said, "are you ready to have an affair now?" "Now that I don't have to look at your wife anymore, you're damn right," replied J.S. With that, defendant told her to give him a call. J.S. left just as defendant's wife came onto the porch. Defendant told his wife that she "better watch it, [J.S.] is ready to fool around."

Defendant's wife, Mrs. Garron, a detective at the prosecutor's office since 1989, testified about the flirtatious behavior between her husband and J.S. and J.S.'s "outrageous" conduct. Mrs. Garron described J.S. as a "touchy feely person." J.S. would always "grab" and "hug" defendant, and "touch" his face, arm, and chest. J.S. would have full body contact with defendant with her "breast" and "butt." J.S. was not discreet in the attention she lavished on defendant; her behavior was open and notorious. Over the years, J.S. would make bold comments to Mrs. Garron, seemingly in jest, that nevertheless suggested she had designs on defendant. J.S. told Mrs. Garron that "she was going to take [her] husband" and that "she was available" now that she was "in between husbands." She also remarked, "I'll take that man away from you if he spends just one night with me." J.S. thought nothing of stepping between Mrs. Garron and her husband, even in the presence of other people, and going on a riff: "[Y]ou don't need to talk to her, ... you've got me. You know if you were with me,... you'd throw rocks at her.... [W]hat do you want with that scrawny white girl." J.S. would often make suggestive remarks to defendant, such as, "I love a man in uniform, is that your gun or are you happy to see me." And she would constantly "give [defendant] a kiss, grab his arm, hold his hand, [and] literally try to pull him away." For her thirtieth birthday present, in 1996, J.S. announced that she wanted defendant: "They don't make men like [defendant] anymore. Where did you find [him]." Sometime in 1995 or 1996, Mrs. Garron learned, apparently from Barbara Carney, a secretary at the prosecutor's office, that J.S. had touched defendant's buttocks. Mrs. Garron confronted J.S., who did not deny the incident: "She laughed .... [a]nd she went into this little routine that she does and she said I'm sorry but ... I was overwhelmed, you know, and she was fanning herself. It was right there in front of me[,] I had no choice."

On J.S.'s last day of employment at the prosecutor's office in March 1997, J.S., defendant, and Mrs. Garron were on the office porch together, and Mrs. Garron told defendant to kiss (assuming just a peck) J.S. goodbye: "I said the thorn in my side is gone ... [Y]ou two don't ever have to see each other again." J.S. told Mrs. Garron to go in the building because "I got to kiss your husband goodbye. I'm never going to see him again." Mrs. Garron laughed and did go inside. When J.S. returned to the building, with a dramatic flourish, "she threw herself up against the wall" and fanned herself with her hand, saying, "that is some man.... [T]hat man can kiss. Wheneverâ whenever you need to get rid of him you just send him my way girlfriend."

Mrs. Garron also recalled an incident after one of J.S.'s visits to the prosecutor's office in the summer of 1998. J.S. had been speaking with defendant and Carney on the porch, and Carney told Mrs. Garron as J.S. drove away, "you know [J....