State v. J.S.

• Decision Date: 15 January 1988
• Citation: 222 N.J.Super. 247,536 A.2d 769
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. J.S., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 247

222 N.J.Super. 247

536 A.2d 769

STATE of New Jersey, Plaintiff-Respondent, v. J.S., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 8, 1987.

Decided Jan. 15, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant (Michael A. Barcham, designated counsel and on the brief).

W. Cary Edwards, Atty. Gen. of New Jersey, for plaintiff-respondent (Robert E. Bonpietro, Deputy Atty. Gen., on the brief).

Before Judges ANTELL, DEIGHAN and COHEN.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

Defendant was charged in the first count of an indictment with aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and in the second count with sexual assault, N.J.S.A. 2C:14-2b. The more serious crime charged in the first count was allegedly committed by the digital penetration of the victim's vagina, she then being less than 13 years of age. The second count charged that the lesser offense of sexual assault was accomplished by "intentionally touching the intimate parts, i.e., breast and inner thigh" of the victim. Defendant's motion to dismiss the first count for lack of proof of penetration was granted at the end of the State's case. Also addressed by defendant's motion to dismiss was the second count of the indictment which was not supported by any proof that defendant had touched the breast and inner thigh of the victim. Rather than dismiss that count the trial judge struck therefrom the allegation that there had been a touching of the victim's breast and thigh and substituted therefore an allegation, which conformed to the evidence, that there had been a touching of the victim's vagina.

On this appeal defendant asserts the trial court committed reversible error in receiving into evidence certain testimony under the "fresh complaint" rule and by amending the second count of the indictment in the manner described.

On April 20, 1984 defendant's daughters, C. and L., respectively aged 11 and 7 years old, came to his home for an overnight visitation at the request of their mother, Mrs. M., from whom defendant had been divorced for approximately eight years. The crux of the prosecution was that when the girls were in bed defendant explored with his hands the private areas of C.'s person. A day or two later C. related the incident to her close friend, 10 year old S., who repeated it to her mother, Mrs. S. Mrs. S. thereupon questioned C. and then reported to C.'s mother, Mrs. M., what she had learned. Mrs. M. discussed the matter with her daughter on May 2, 1984.

During presentation of the State's case S. was permitted to testify that C. had told her of the incident in which defendant touched her vagina. Mrs. S. was permitted to testify that after conversing briefly with S., her daughter, she questioned C. who told her that defendant had "inserted his finger inside of her." Mrs. M. was permitted to testify that C. told her on May 2, some 12 days after the event, of the overnight visit at defendant's home during which defendant came in and out of the bedroom "feeling her body, putting his fingers in her vagina."

The foregoing testimony was received under the fresh complaint rule pursuant to which the State is permitted to show in a sexual abuse prosecution that the victim complained of the act within a reasonable time to one to whom she would ordinarily turn for sympathy, protection or advice. State v. Tirone, 64 N.J. 222, 226-227, 314 A.2d 601 (1974); State v. Balles, 47 N.J. 331, 338-339, 221 A.2d 1 (1966), cert. den. 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1967); State v. Gambutti, 36 N.J.Super. 219, 228-229, 115 A.2d 136 (App.Div.1955); State v. Saccone, 7 N.J.Super. 263, 266, 72 A.2d 923 (App.Div.1950). The rule has been held applicable in child abuse situations. N.J. Youth & Family Serv. Div. v. S.S., 185 N.J.Super. 3, 8, 447 A.2d 183 (App.Div.1982). Its rationale and application were explained by the Supreme Court in State v. Balles, 47 N.J. at 338-339, 221 A.2d 1:

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. See State v. Gambutti, supra, 36 N.J.Super., at p. 225 .

Wigmore sets forth three principles under which the proof may be offered. He describes the first as an explanation of a "self-contradiction" which would result from the absence of a complaint. He points out that if no testimony were offered with respect to the complaint the jury might naturally assume that none was made and that it is only just that the prosecution be permitted to forestall this natural assumption by showing that a complaint was in fact made. Under this principle the complaint but not its details is admissible and impeachment of the witness is not material. Wigmore, supra, § 1136. The second permits the rehabilitation of the witness after she has been impeached, by showing that she made statements shortly after the incident consistent with her testimony; under this principle the details of the complaint are admissible. Wigmore, supra, § 1138. The third admits the complaint under res gestae where that doctrine's requirement of spontaneity is met; here the details are admissible and impeachment is not material Wigmore, supra, § 1139.

It is not here suggested that C.'s statement was part of the res gestae or that she had been impeached. The fresh complaint theory with which we are here concerned is that which authorizes such testimony to "repel any inference that because the victim did not complain no outrage had in fact transpired." McCormick, Evidence, § 297 at 859 (3 ed. 1984). On this basis, only those details of the complaint which are necessary to show the nature of the complaint may be admitted. State v. Balles, 47 N.J. at 339, 221 A.2d 1; State v. Gambutti, 36 N.J.Super. at 228, 115 A.2d 136; State v. Saccone, 7 N.J.Super. at 266, 72 A.2d 923.

We conclude that the substance of what was related by C. to the adult witnesses, C.'s mother and Mrs. S., did not constitute a "complaint." We further conclude that the testimony given by these two witnesses was excessively detailed in relating what was said by C. Under the circumstances presented the error in receiving the foregoing testimony was clearly capable of producing an unjust result and therefore mandates a reversal of the conviction. R. 2:10-2.

As to the testimony of Mrs. S., this witness testified that after a conversation with her ten year old daughter she approached C. and asked "what had happened to her." The child did not volunteer the information. Likewise, C.'s disclosure to her mother, Mrs. M., 12 days after the alleged assault, was the product of questioning by the mother. Indeed, Mrs. M. testified that when she opened the subject with C. "She wouldn't talk. She cried, and she didn't want to talk about it." The methodology of the questioning was explained by Mrs. M. in the following way:

She wouldn't say hardly anything at all. I had to ask her, you know, about the events, and she would just say yes or no.

In response to the prosecutor's inquiry it was developed that C. furnished "yes" answers to her mother's questions which established that "he had felt her body, and that he had stuck his fingers inside her vagina."

While the methods employed by Mrs. M. to find out what had happened to her daughter were certainly understandable, our concern is whether the child's out-of-court responses satisfy the exacting standards for admissibility under a rule of evidence which permits such testimony only to demonstrate that the victim made a "complaint." Webster defines "complaint" as an "expression of grief, pain or resentment ... something that is the cause or subject of protest or outcry...." ¹ In our view, to qualify as a complaint the victim's statement must at least be self-motivated and not extracted by interrogation.

Although in State v. Kozarski, 143 N.J. Super. 12, 17, 362 A.2d 598 (App.Div.1976), certif. den. 71 N.J. 532, 366 A.2d 687 (1976), we declined to find plain error where the child's "complaint" may have been elicited by his mother, the facts of that case are significantly different. Here, the challenged testimony was seasonably objected to during the trial. More important, in Kozarski we implied that the defendant had not been prejudiced since the evidence showed that the child had spontaneously made the same complaint earlier to a playmate. Here, however, the adults' testimony that C. told them defendant had penetrated her vagina imported highly provocative details which were nowhere supported by competent evidence elsewhere in the record.

In permitting the adult witnesses to testify to the child's statement that defendant had felt her breasts and had penetrated her vagina, the court's ruling exceeded the necessities of the case to the prejudice of defendant. All that was needed was enough to show that the child did not suffer the outrage in silence. Professor Wigmore states it thus:

(1) Only the fact of the complaint, not the details. The purpose is to negative the supposed inconsistency of silence by showing that there was not silence. Thus the gist of the evidential circumstances is merely non-silence, i.e., the fact of a complaint, but the fact only. That she complained of a rape, or an attempt at rape, is all that principle permits; the further terms of her utterance (except so far as to identify the time and place with that of the one charged) are not only immaterial for the purpose, but practically turn the statement into a hearsay assertion, and as such it is inadmissible (except on the third theory). [4 Wigmore, Evidence, (Chadbourn rev. 1972), § 1136 at 307.]

In State v. Balles, the Supreme Court approved testimony that the child victim had complained that defendant "had put his hands down her panties and had touched here."...