October 24, 2018 NJ Appellate Division ruling on Fresh Complaint Evidence
State v. H.H. New Jersey Appellate Division Decision October 24, 2018. A-4208-16T4
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In this case the defendant was condition of endangering the Welfare of a Minor. The factual evidence in this case came from the victim’s testimony at the time of trial. The defendant objected to the information being introduced a ‘fresh complaint’ evidence because her reporting was not made in a timely manner; she was ever in fear of the defendant, and she was never coerced by the defendant into silence. The court outlined what exactly fresh complaint evidence its.
- STANDARD OF REVIEW OF A TRIAL JUDGE’S EVIDENTIARY RULING
“On appellate review, ‘[c]onsiderable latitude is afforded’ to the court’s ruling, which is reversed ‘only if it constitutes an abuse of discretion.'” State v. Cole, 229 N.J. 430, 449 (2017) (citations omitted). Evidentiary determinations will be affirmed “absent a showing of an abuse of discretion. i.e., there has been a clear error of judgment.” State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). If no objection is raised before the trial court, we review for plain error and, “[a]ny error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .” See R. 2:10- 2.
- FRESH COMPLAINT
Defendant first argues that the “fresh-complaint” testimony of M.S. and D.T should have been barred because M.W.’s complaints were untimely made, she did not contend that she was fearful of defendant, or that she was embarrassed or coerced into silence. He further argues that the fresh-complaint testimony was cumulative, and “served only to make the jury believe that the State had a greater number of witnesses than the defense.” We disagree. The fresh-complaint rule was established “to allow the State to meet in advance the negative inference which would be drawn from the absence of evidence that the [child] victim reported the [sexual abuse] to one to whom she would naturally turn for comfort and advice.” State v. J.S., 222 N.J. Super. 247, 256 (App. Div. 1988) (citation omitted). Our Supreme Court has described fresh-complaint evidence as follows:
[T]o qualify as fresh[-]complaint, the victim’s statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. At trial, fresh-complaint evidence serves a narrow purpose. It allows the State to negate the inference that the victim was not sexually assaulted because of her silence. Only the fact of the complaint, not the details, is admissible. In addition, the victim must be a witness in order for the State to introduce fresh-complaint evidence. . [State v. Hill, 121 N.J. 150, 163 (1990) (citations omitted); see also State v. R.K., 220 N.J. 444, 455 (2015).]
Fresh-complaints may also be admissible when “made in response to general, or non-coercive questioning[,]” with greater latitude shown in cases dealing with young children. Hill, 121 N.J. at 167. It is left to the trial court “to examine all the circumstances of the questioning to determine whether the line between coercive and benign questioning has been crossed.” Id. at 170. Similarly, “the trial court in its discretion may, but need not, exclude cumulative fresh-complaint testimony that is prejudicial to defendant.” Ibid. Although fresh-complaint evidence serves a narrow purpose, and should not be considered as substantive evidence of guilt or as bolstering the credibility of the victim, R.K., 220 N.J. at 456 (citing State v. Bethune, 121 N.J. 137, 147- 48 (1990)), a review of the record reveals that the judge did not indicate that M.W.’s testimony was substantive evidence of defendant’s abuse.
Although fresh-complaint evidence serves a narrow purpose, and should not be considered as substantive evidence of guilt or as bolstering the credibility of the victim, R.K., 220 N.J. at 456 (citing State v. Bethune, 121 N.J. 137, 147- 48 (1990)), a review of the record reveals that the judge did not indicate that M.W.’s testimony was substantive evidence of defendant’s abuse. Rather, the judge properly determined, given M.W.’s young age when the abuse commenced and the inaction of the adults who participated in the church meeting, that there was justifiable cause in permitting the fresh-complaint testimony, which was succinct and limited to M.W.’s reporting of abuse only. It was not until M.W. moved out of the home she shared with defendant, her mother, and brother, that she confided in M.S. about the abuse, who treated M.W. “like [her] second daughter.” The record reflects that the fresh-complaint witnesses testified as to the fact of M.W’s complaints in terms of reporting and not substance. An appropriate limiting instruction and jury charge at the conclusion of trial was given by the judge. We are unpersuaded by defendant’s contention that the judge erred by admitting this testimony. The limiting instruction was sufficient to dispel any reasonable claim of prejudice. See State v. Vallejo, 198 N.J. 122, 129 (2009). We have no reason to believe the jurors did not follow the court’s instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004). Accordingly, there was no error warranting reversal.
