State v. Hummel

• Decision Date: 29 January 1975
• Citation: 132 N.J.Super. 412,334 A.2d 52
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John HUMMEL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 412

132 N.J.Super. 412

334 A.2d 52

STATE of New Jersey, Plaintiff-Respondent, v. John HUMMEL, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 14, 1975.

Decided Jan. 29, 1975.

Norman L. Zlotnick, Wildwood, for defendant-appellant (Marvin D. Perskie, for Perskie & Callinan, Wildwood, attorney; George Brown Neidig, Wildwood, on the brief).

Howard E. Drucks, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges CARTON, CRANE and KOLE.

The opinion of the court was delivered by

KOLE, J.A.D.

Defendant appeals from his convictions for contributing to the delinquency of two minor girls (N.J.S.A. 2A:96--4), for their carnal abuse (N.J.S.A. 2A:138--1) and for impairing their morals (N.J.S.A. 2A:96--3). The girls, R and D, are both under the age of 16.

Defendant was sentenced to State Prison for concurrent terms of 5 to 7 1/2 years on each carnal abuse charge; 1 to 3 years on each morals impairment charge, and a term of 1 to 3 years on each contributing to delinquency offense, concurrent with each other but consecutive to one of the carnal abuse 5 to 7 1/2-year terms. Thus, his aggregate sentence was for a period of 6 to 10 1/2 years.

During a period of slightly more than three years R and D were foster children in the home of defendant and his wife. They were about 12 years old when they arrived and about 15 years of age when they left. R's younger sister, C, who was about seven years old when she entered, was also a foster child in the home.

According to R, within two weeks of her arrival she acceded to defendant's request to enter his bedroom to scratch his back. While there, there was mutual touching of private parts and then intercourse. Thereafter on other occasions there were also acts of intercourse and touching by mouth of each other's sex organs. She discussed these events with D, who told her that defendant liked to have intercourse with her and she 'had to play with him and he played with her.' R had seen her sister C in defendant's bedroom more than ten times.

R reported that she had never complained to either Mrs. Hummel or to Linda Portwood, her caseworker, of these events while living in the Hummel home. She said that she was afraid to complain because defendant had said that she would be put away in a children's shelter if she told. After leaving the Hummel house R was placed in the home of her sister L. When she had been there about one month she advised her sister as to Mr. Hummel's acts. L testified that R had informed her that defendant had frequent sexual relations with the three girls over a period of three years.

D testified that several months after she had entered the Hummel home as a foster child she had accompanied R into defendant's bedroon to scratch his back and that defendant 'would mess' and touch her privates. Some time later, a week or a month, D was again in defendant's bedroom scratching his back when he threw her on the bed and made her have intercourse with him. On another occasion she was asleep on the couch in the living room and awoke to discover that defendant had his head between her legs. She pulled his hair and hit him until he got away. D said that she had intercourse with defendant two or three times and that he had, on occasion, offered her $1 if he could make love to me or 'something.'

D also stated that R had told her on several occasions about her activities with defendant and that the two of them had discussed these events. She also testified that before she left the Hummel house the youngest foster child, C, informed her that defendant had played with her. D stated that she had not complained to the caseworker or to anyone else about defendant's conduct because he had said that she would be put away if she told. She first imparted this information to her aunt after leaving the Hummel home to reside with her.

C testified that defendant called her into his bedroom to scratch his back and comb his hair and that he would ask her to 'pull down my pants once in awhile.' She testified that 'he put his finger in my rear end' more than once. C reported that on one occasion defendant's wife entered the bedroom while she had her pants down and yelled at her and sent her to her room. On this occasion she and R told each other what defendant had been doing to them. R and D told C not to scratch defendant's back again, and she did not do so thereafter. C said that she had not told the police about these events when questioned because she was afraid that defendant would put her away.

Linda Portwood, a caseworker for the New Jersey Division of Youth and Family Services, assigned to the foster children in the Hummel house, reported that she had received a telephone call from L some two or three weeks after R had moved into her home. Upon visiting L's house she spoke to R, who told her of defendant's conduct toward her. She also testified to a subsequent conversation with D, who verified R's story. As a result of these interviews Miss Portwood confronted defendant, who denied the charges. She arranged to transfer the remaining foster children from the Hummel house and notified the county prosecutor.

Defendant testified. He denied the charges. He stated that he was not close to the foster children and that he believed they resented the fact that he paid more attention to his own daughters.

The foster children, he said, created problems. R had great difficulty with school work and his wife had resisted efforts to place the girl in a school for retarded children. He described R as very temperamental and as suffering nightmares. He said that R disliked him and his family because they were strict, and that D had been arrested for stealing at a local shopping center.

He conceded that the foster children did scratch his back while watching television. He said that they had only entered his bedroom once or twice to scratch his back and that, although he was not fully dressed, he was fully covered by the bedclothes, the door was left open and his wife was in the next room. He also stated that he had given R money to scratch his back but did so 'very seldom.' He further stated that he had been sexually impotent for a number of years and had not had relations with anyone, including his wife. Defendant and each of the foster children were in agreement that defendant's wife slept in the living room on a couch.

A psychiatrist called by defendant gave evidence based on an interview and examination of defendant. He reported that defendant, as a young man, had been able to function sexually only with the assistance of alcohol and that he had lost even this ability in his forties. The doctor concluded that defendant suffered from lifelong feelings of insecurity and anxiety; that he suffered from impotence and that there was no evidence of sexual perversion. He stated, however, that there was no reliable physical test to establish the existence of impotence and that it was necessary to rely in large measure on the statement of the patient in reaching his conclusions.

Two character witnesses testified as to defendant's good reputation.

We have reviewed each of the errors alleged by defendant and have concluded that they are without merit. Hence, considered alone or in the aggregate, they do not warrant reversal of the convictions.

The first claimed error is the trial judge's permitting various witnesses to testify as to conversations with R and D, the objects of the sexual misconduct for which defendant was convicted, relating to such misconduct. It is urged that the fresh complaint rule does not apply to R's testimony concerning the statements made to her by D, D's testimony as to R's statements to her, or L's testimony as to what R told her in this respect. These statements were hearsay and were admissible only under the fresh complaint doctrine. We note that the court discouraged the recounting by witnesses of the details of the statements involved.

It is contended that R should not have been permitted to testify as to D's statement to her before D had testified and an attack had been made on D's credibility.

Defendant first argues that such evidence is admissible under the fresh complaint rule only in response to efforts by defendant to impeach a complaining witness. We do not agree.

In State v. Balles, 47 N.J. 331, 338, 221 A.2d 1, 5 (1966), cert. den. and app. dism. 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1967), the court discussed the fresh complaint rule The rule is applied widely in rape and morals cases and permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice.

In Balles the court gave the rationale for the rule, saying:

* * * if no testimony were offered with respect to the complaint The jury might natually assume that none was made and * * * it is only just that the Prosecution be permitted to forestall this natural assumption by showing that a complaint was in fact made. (at 338, 221 A.2d at 5; emphasis supplied)

Thus, the State need not wait, as defendant contends, until defendant has brought the assumption of contradiction into the open by explicitly raising the question. The prosecutor may anticipate that assumption in the minds of the jurors and introduce the fact of the complaint and the nature thereof before any actual impeachment occurs. See also, State v. Tirone, 64 N.J. 222, 314 A.2d 601 (1974); State v. Gambutti, 36 N.J.Super. 219, 226, 115 A.2d 136 (App.Div.1955).

The statement in State v. Orlando, 119 N.J.L. 175, 180, 194 A. 879 (Sup.Ct.1937), relied on by defendant, is inapposite. There the complaining witness had already been impeached. The court was concerned not with the kind of pre-impeachment testimony here involved, as to the nature of the complaint, but rather with the admissibility of the details of the complaint to rehabilitate the credibility of...