State of New Jersey v. James J. Mauti

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3551-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. January 26, 2017

JAMES J. MAUTI, APPELLATE DIVISION

Defendant-Appellant.

_____________________________

Argued October 7, 2015 – Decided January 26, 2017

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 07-
11-0955.

Joseph A. Hayden, Jr., argued the cause for
appellant (Walder Hayden P.A., attorneys; Mr.
Hayden, Alan Silber and Lin C. Solomon, on the
brief).

Kimberly L. Donnelly, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney; Ms.
Donnelly, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.
 In 2007, a Union County grand jury returned Indictment No.

07-11-0955, charging defendant James J. Mauti with first degree

aggravated sexual assault, N.J.S.A. 2C:14-2a(7); second degree

sexual assault, N.J.S.A. 2C:14-2c(1); third degree aggravated

criminal sexual contact, N.J.S.A. 2C:14-3a; and fourth degree

criminal sexual contact, N.J.S.A. 2C:14-3b. At all times relevant

to this case, defendant was a physician licensed to practice in

this State; his practice includes internal and sports medicine.

The complaining witness is defendant's sister-in-law, "Joanne."1

The incident that prompted these criminal charges occurred on

November 25, 2006.

This is the second time this case has been before this court.

In State v. Mauti, 416 N.J. Super. 178, 181 (App. Div. 2010),

aff'd, 208 N.J. 519 (2012) (Mauti I), we granted defendant's motion

for leave to appeal and reversed the Criminal Part's pretrial

ruling, which applied the Supreme Court's holding in In re Kozlov,

79 N.J. 232, 243–44 (1979), to pierce the spousal privilege

provided by N.J.R.E. 501(2) and compel defendant's wife to testify

as a witness for the State.

1
This name is fictitious, as are all the names of Joanne's family
members who are mentioned in the record of this case. We do this
to protect the privacy of "alleged victims of sexual abuse." R.
1:38-3(c)(12).

2 A-3551-12T3
 The trial began on October 24, 2012, and proceeded over

sixteen non-sequential days, ending on December 11, 2012. The

jury found defendant guilty of third degree aggravated criminal

sexual contact and fourth degree criminal sexual contact, but

acquitted defendant of first degree aggravated sexual assault and

second degree sexual assault. The trial judge denied defendant's

motion for a new trial pursuant to Rule 3:20-1, sentenced defendant

to serve 364 days in the Union County Correctional Facility, 2

imposed the mandatory fines and penalties, permanently restrained

defendant from having any contacts with the victim, and directed

defendant to register as a convicted sex offender pursuant to

N.J.S.A. 2C:7-2. The trial judge also denied defendant's motion

to stay the execution of the sentence pending appeal.

By order dated April 12, 2013, we granted defendant's motion

to be admitted to bail pending appeal. R. 2:9-4. In reaching

this decision, we noted this appeal raised "at least one

substantial question [of law] that should be determined by an

appellate court." We thus remanded the matter to the Criminal

2
Although our decision to remand for a new trial obviates a need
to review the sentence, we are compelled to note that a sentence
of 364 days in a county correctional facility is not authorized
by N.J.S.A. 2C:43-6a. See State v. Crawford, 379 N.J. Super. 250,
257 (App. Div. 2005). A court may impose a term of imprisonment
of less than three years for a third degree offense only as a
condition of probation. State v. Hartye, 105 N.J. 411, 419 (1987).

3 A-3551-12T3
Part to allow the trial judge "to set a reasonable bail amount and

reasonable conditions of bail pending appeal."

In this appeal, defendant raises three principal issues

predicated on evidential rulings made by the trial judge in the

course of addressing the parties' pretrial motions. Defendant

argues: (1) the trial court erred when it allowed the State to

introduce a towel containing defendant's semen because this DNA

material lacked a proper evidential foundation, constituted an

inadmissible hearsay statement under N.J.R.E. 801(a)(2), and

should have been excluded under N.J.R.E. 403 because its

prejudicial effect far outweighed its probative value; (2) the

trial judge abused his discretion when he permitted the State to

present cumulative "fresh-complaint" evidence to bolster the

credibility of the complaining witness; and (3) the trial court

erroneously admitted into evidence a redacted version of a letter

sent by defense counsel to the prosecutor before formal charges

were filed against defendant. The court ruled certain factual

assertions defense counsel made in this letter constituted adopted

admissions by defendant under N.J.R.E. 803(b). Defendant argues

these factual assertions were protected under N.J.R.E. 410 as

statements "made during plea negotiations." Alternatively,

defendant argues the court should have excluded the letter in its

entirety under N.J.R.E. 403.

4 A-3551-12T3
 After carefully reviewing the record developed before the

trial court, we are compelled to reverse defendant's convictions

and remand this matter for a new trial on the charges of third

degree aggravated criminal sexual contact and fourth degree

criminal sexual contact. We are satisfied the trial court should

have excluded the towel containing defendant's semen because the

State failed to present competent evidence linking it to the

incident involving Joanne. Furthermore, defendant's wife, "Jean,"

gave the towel to her father in response to his request "[t]o get

whatever is in that room in the part of the house where, according

to [Joanne], it took place." Because Jean did not testify in this

trial, admitting the towel into evidence improperly allowed the

jury to draw an inference of defendant's culpability from Jean's

unexplained conduct, in violation of N.J.R.E. 801(a)(2). The DNA

evidence the State extracted from the towel should have been

excluded as irrelevant under N.J.R.E. 401 because Joanne never

claimed defendant ejaculated during the alleged assault.

We also conclude the trial judge abused his discretion by

permitting the State to call five fresh-complaint witnesses

without providing the jury with any instructions on how to consider

this limited-purpose testimony. As our Supreme Court recently

reaffirmed in State v. R.K., 220 N.J. 444 (2015), the fresh-

complaint doctrine allows the State to present "evidence of a

5 A-3551-12T3
victim's complaint of sexual abuse, otherwise inadmissible as

hearsay, to negate the inference that the victim's initial silence

or delay indicates that the charge is fabricated." Id. at 455.

The type of cumulative fresh-complaint testimony the State

presented here is inconsistent with the Court's holding in R.K.

because it had the capacity to improperly bolster the credibility

of the complaining witness. Id. at 456. The judge also committed

reversible error when he failed to charge the jury on the

limitations of fresh-complaint testimony.

Finally, we conclude that the trial court properly admitted

a redacted version of defense counsel's letter to the prosecutor

as an adopted admission under N.J.R.E. 803(b). The record shows

defense counsel included in this letter a detailed description of

the medical treatment defendant provided to Joanne on November 25,

2006, including the specific medications he administered to her.

Defense counsel wrote this letter with the intent and expectation

that it would persuade the prosecutor to accept defendant's version

of events as truthful and thereby convince the State not to file

formal criminal charges against defendant. Under these

circumstances, we hold defense counsel's letter falls outside the

ambit of "plea negotiations," as that term is used in N.J.R.E.

410.

6 A-3551-12T3
 We will recite only the facts necessary to provide context

for our analysis of the legal issues defendant raises on appeal.

I

A

Joanne was thirty-eight years old when she testified before

a jury about being sexually assaulted six years earlier by her

sister's then boyfriend. Defendant has known Joanne's family for

most of his life. He befriended Joanne's older brother, "Joseph,"

in elementary school and started dating Joanne's older sister,

"Jean," in 1996. Defendant and Jean married on October 28, 2007. 3

They had four children when this trial began in 2012.

Defendant is a physician who practices internal and sports

medicine. He operates his medical practice from a residential

building he purchased in 2004. Defendant also lives in the

building. The home-office arrangement has two discrete sections

that permit defendant to separate his living quarters from his

medical practice.

Joanne began working for defendant as a bookkeeper sometime

at the start of 2006. Before the November 25, 2006 incident which

3
The State filed an order to show cause in the Civil Part seeking
to enjoin defendant and Jean from marrying until the resolution
of the pending criminal charges. The trial court denied the
State's application. We thereafter denied the State's emergent
application for the imposition of temporary restraints to prevent
the wedding. Mauti, supra, 416 N.J. Super. at 186.

7 A-3551-12T3
gave rise to these criminal charges, defendant served as a family

doctor for Joanne, her two parents, and Joseph, among other family

members. Defendant testified that despite Joanne's allegations,

all of his wife's family members continue to see him as their

family doctor, including Joseph and his wife. Defendant testified

he treats every member of the family without charge.

Joanne testified she began seeing defendant as her physician

when he first opened his private practice in 2005, even before she

began working for him as a bookkeeper. She saw him as a patient

approximately a dozen times, "[m]ostly [for] sinus infections and

colds." She testified defendant did not treat her inappropriately

during this time period.

Defendant and Joanne both testified that he treated her for

back pain without incident on November 21, 2006, and on November

24, 2006. However, they differ regarding the frequency, extent,

and specifics of the treatment. Defendant neither created a

contemporaneous record of the treatment he administered to Joanne

in November 2006, nor dictated "a dated entry for later

transcription," as required by the Board of Medical Examiners.

See N.J.A.C. 13:35-6.5(b). Although defendant recognized this

obligation, he testified he did not create records when he treated

Joanne because she was not a "scheduled patient." Defendant

claimed he planned to eventually input the records. Springfield

8 A-3551-12T3
Police Detective Judd Levenson testified that he reviewed the

medical records defendant turned over in October 2012, but did not

find any records pertaining to Joanne's treatment in November

2006.

According to defendant, he did not learn of the criminal

charges Joanne had filed against him until December 2, 2006. Even

after defendant learned of Joanne's allegations against him, he

did not prepare a complete record because he was "distraught" and

"didn't know what to do." Defendant testified he eventually

retained an attorney and decided "not to alter the records in any

way and to leave them as they were." The medical treatment that

defendant failed to document was not limited to what occurred on

November 25, 2006. Both defendant and Joanne agree that the

medical interactions began four days earlier.

On November 21, 2006, Joanne told defendant she felt pain in

her lower back. Defendant asked Joanne to lie down on the floor

of his living room so he could perform an osteopathic manipulation

of her lower back. Defendant next moved her to an examination

room located in the medical office side of the building. Defendant

testified he gave Joanne three forms of medications to take home:

(1) Tizanidine, a muscle relaxer; (2) Ultracet, a pain medication;

and (3) Prednisone, an anti-inflammatory. According to defendant,

instead of writing a prescription, he gave these medications

9 A-3551-12T3
directly to Joanne in pill form from the samples he kept in the

office.

Joanne acknowledged that defendant performed an osteopathic

manipulation of her back on November 21, 2006, which she described

as "crack[ing] [her] back." She testified the procedure alleviated

her pain. Joanne also testified that defendant "massaged a knot

out of [her] back" in one of the examination rooms on the medical

office side of the building. She described it as a "deep-tissue

massage." Defendant used his fingers, "digging in to try to loosen

up the knot." Defendant did not behave inappropriately that day.

Joanne testified she returned to work after her pain subsided.

According to defendant, on Thursday, November 23, 2006,

Joanne "said her back was still bothering her." Defendant

testified this was the day he decided to give her a "TENS unit,"

which he described as a "portable electric stimulation unit." The

TENS unit supplemented the three medications he had given her on

November 21, 2006. However, Joanne again complained of back pain

when she returned to work the next day. Defendant testified he

offered to treat her again with the same medications. He also

"explained to her that he would do a hot pack treatment similar

to what they do in physical therapy." Defendant testified he

treated Joanne in examination room three, where he administered

hot pack treatments.

10 A-3551-12T3
 When this course of treatment proved ineffective, defendant

injected Joanne with six cubic centimeters (cc's) of a "Marcaine

solution." Defendant's account of Joanne's reaction to this course

of treatment conflicted with Joanne's testimony of the same event.

Defendant testified that Joanne "was getting very anxious" about

receiving the injection. When defendant injected her, Joanne had

a vasovagal reaction4 and passed out.

Although Joanne acknowledged that she gets anxious

immediately before she is about to receive an injection, she denied

that defendant ever told her he was giving her anything to

alleviate her anxiety. She also denied that she passed out on

Friday, November 24, 2006. According to Joanne, she had, at worst,

felt "lightheaded."

B

November 25, 2006, was the Saturday immediately after

Thanksgiving. Defendant's medical office was closed for the

extended holiday weekend, but Joanne worked that day. She arrived

4
"Vasovagal syncope . . . occurs when you faint because your body
overreacts to certain triggers, such as the sight of blood or
extreme emotional distress. It may also be called neurocardiogenic
syncope. The vasovagal syncope trigger causes your heart rate and
blood pressure to drop suddenly. That leads to reduced blood flow
to your brain, causing you to briefly lose consciousness." Mayo
Clinic Staff, Vasovagal Syncope, Mayo Clinic (Feb. 12, 2016),
http://www.mayoclinic.org/diseases-conditions/vasovagal-
syncope/hosme/ovc-20184773.

11 A-3551-12T3
at defendant's home-office at approximately 10 a.m. and had

breakfast with her sister, Jean. She sat down to begin to work

approximately fifteen to twenty minutes later. Joanne testified

that she experienced "discomfort" in her lower back "almost

immediately" after she sat down to start work. She described it

as "the same type of pain" she had experienced throughout the

week. When asked to rate the level of pain on a scale from one

to ten, she stated it was "maybe about a 4, 3, 4."

Although she had never before left work due to her lower back

pain, she decided "to go home and not allow it to get worse."

According to Joanne, defendant offered to treat her when she told

her sister she was going home because of her back pain. Before

this, Joanne had not interacted with defendant that day. Joanne

did not recall exactly when defendant began treating her, but

estimated it was probably before noon. Based on telephone records,

the attorneys agreed on the following timeline: (1) Joanne arrived

at defendant's residence-medical office at 10:49 a.m.; (2) she

worked for approximately one hour, until 11:49 a.m., when her back

began to bother her; and (3) treatment began sometime in the

afternoon.

All of the previous treatments had lasted one to two hours.

Joanne testified she expected this treatment to last "[m]aybe an

hour, max." She would have declined defendant's offer to treat

12 A-3551-12T3
her if she had thought it would take longer than one hour because

she planned to meet her boyfriend later that afternoon. The

treatment took place in exam room two, located in the medical

office side of the building.

Joanne was fully dressed when defendant walked into the room

and gave her two pills: a muscle relaxer and a pain reliever. He

also gave her a liquid. According to Joanne, defendant told her

the liquid was a muscle relaxer. This was the first time defendant

had given her this medication. He did not identify the liquid by

name or explain to her the effects of this medication. Defendant

gave her the liquid in a "Dixie cup." The liquid was "cloudy

white" and had the consistency of "Pepto Bismol." Except for the

liquid, this was the same medication defendant had previously

given her on Thanksgiving Day.

Joanne testified that after taking the liquid she "almost

immediately became unaware." She gave the following account of

what transpired after taking the liquid.

Q. What do you remember happening after you
drank the liquid?

A. He – I was woken up and given a second
dosage.

Q. And when he woke you up to give you a second
dosage, did you ask about that?

A. Yes, I did.

13 A-3551-12T3
 Q. What did you say?

A. I asked him why a second dosage, and he
said that it was a series of three dosages,
and that was the second.

Q. Do you remember ever getting a third
dosage?

A. No.

Joanne testified that she changed into a pair of shorts, but

does not remember the reasons for doing it. She described the

shorts as "knee length" or "maybe a little bit shorter[.]" Joanne

testified that defendant gave her the shorts. She said defendant

told her he needed her to wear the shorts because "he wanted to

crack [her] back." She did not recall whether she kept her

underpants on after she changed into the shorts.

Joanne remembered Jean coming into the exam room to show her

Christmas decorations before defendant administered the injection.

Joanne described this interaction as Jean's attempt to relax and

"entertain" her, because Jean knew "shots make [her] nervous."

Joanne emphasized, however, that she interacted with Jean before

defendant gave her the Dixie cup containing the liquid.

Joanne testified she "barely even felt" the injection

defendant administered in her back. She was lying face down on a

patient table at this time. After injecting her, defendant

commented, "[Y]ou hardly even felt that, [did] you[?]" Defendant

14 A-3551-12T3
then placed hot towels on Joanne's back and began massaging her

lower back area. At one point, Joanne testified defendant's "hands

began to massage [her] buttocks, and then he would quickly bring

them back up, and then lower them back down and then quickly bring

them back up."

Joanne recalled defendant "tugging" on her shorts'

drawstring, pulling down her shorts, and "stick[ing] his fingers

inside [her]." When asked by the prosecutor to specify, she

stated, "He was putting them in my anus." She testified the

medication prevented her from knowing how long this part of the

sexual assault lasted. She stated, "I was fading in and out. I

only had glimpses of feelings and what was happening." Joanne

testified she "felt motionless" during the time defendant was

"placing hot towels [on her] or putting his fingers in [her] anus."

She does not remember defendant saying anything to her during this

time. According to Joanne, defendant not only digitally penetrated

her when she was on her stomach, but also inserted his penis into

her anus.

Joanne testified that defendant "flipped [her] onto [her]

back."5 She explained she felt "[h]e was trying to position [her]

5
Joanne testified that in 2006, she weighed between 125 and 130
pounds. She is 5' 8" tall. Defendant was "probably over 200"
pounds and is 6' 1" or 6' 2."

15 A-3551-12T3
to make it more comfortable for himself."6 According to Joanne,

defendant "began to insert [his] fingers in [her] vagina." She

also described defendant's movements. When asked by the

prosecutor to describe what she was thinking, Joanne testified

that due to the effect of the drugs, she "wasn't thinking right."

Joanne also testified to hearing a sound "like pictures were

being taken." She heard this "snapping" sound approximately three

or four times. She was not certain whether the sounds were in a

series or in quick succession. She testified that at the time of

the incident, defendant had a cellphone or other device capable

of taking digital photographs.

Joanne also claimed defendant "lifted up her blouse," and

"kissed both [her] breasts . . . sensually, like a person that was

in the process of love making would kiss another person." Although

she did not hear anything to indicate that a person or persons

were near exam room two during the sexual assault, she remembered

defendant "scurrying to the door." She did not know what caused

defendant to take this action. She does not remember whether

defendant returned to the exam room afterward.

6
Defense counsel objected, arguing the witness's testimony
constituted a conclusion of defendant's intent. The trial judge
overruled the objection, explaining the statement was based on
Joanne's perception of defendant's conduct.

16 A-3551-12T3
 Joanne next remembered "standing in the living room and

watching [her] sister put up Christmas ornaments." Although she

was wearing her own clothes, which comprised a pair of yoga pants,

a T-shirt, and a zippered vest, she does not remember waking up

in the exam room or dressing herself. She did not know what time

it was and felt like she was "swaying." She also felt anxious and

eager to go home. Her sister Jean insisted that she eat something.

However, when she took a bite of a sandwich Jean had prepared for

her, she felt nauseous. She rushed to the bathroom, but was unable

to vomit. Jean and defendant both followed her towards the

bathroom. She heard defendant say, "I know it's not the drugs I

gave her."

Defendant drove Joanne home in her car. Joanne could not

remember whether she agreed to have defendant drive her home. She

does not recall defendant saying anything to her during the drive

home. She remembered that he reached across her to adjust the

seat or the seatbelt. Defendant brushed his hand slowly across

both of her thighs in a manner she considered to have been an

"intentional sexual gesture." Defendant walked with her to the

apartment building and kissed her on the cheek "like any other

day." The kiss on the cheek is a customary gesture in her family.

Joanne lived with her boyfriend, "Mark," at the time.

According to Joanne, Mark was laying on the sofa when she walked

17 A-3551-12T3
inside the apartment. "[H]e stood up, and I could tell he was

angry with me[.] . . . [H]e left shortly after I arrived home.

He gave me a kiss goodbye and went to work." Before he left, Mark

told her that Ana M. and Cristina P., her two closest girlfriends,

had called. She did not say anything to Mark about the alleged

assault. Joanne called Ana and Cristina back that day, but spoke

to each woman for less than five minutes. She then fell asleep

on the sofa and slept for the rest of the day. Her next clear

recollection was waking up at around 11 a.m. on Sunday, November

26, 2006.

C

Defendant testified in his own defense. We will limit our

recitation of his testimony to areas in which his account of

material events diverged from Joanne's account. According to

defendant, at approximately 12:30 p.m. on Saturday, November 25,

2006, Joanne told him her lower back pain had returned. She asked

him to provide the same treatment he had performed previously.

Defendant told Joanne to go into one of the exam rooms. She

selected exam room two. In response to his questions, Joanne

confirmed she had not taken the medications he had given her

earlier in the week. Thus, in addition to providing heat treatment

and back manipulations, defendant gave Joanne Tizanidine, a muscle

relaxer; Ultracet, a pain reliever; and a "facet injection." This

18 A-3551-12T3
was the first time defendant had given Joanne a facet injection.

Defendant explained that "a paravertebral facet injection . . .

is similar to the trigger point injection, just deeper and closer

to the spine area[.]"

Although the facet injection was deeper than the one he had

administered the previous day, defendant told Joanne "it should

alleviate [her] pain and [she] should be fine." He noticed Joanne

was "a little apprehensive." Given Joanne's history involving

vasovagal syncope, defendant decided to give her chloral hydrate,

a liquid sedative. He simultaneously administered the chloral

hydrate and the other medications. He then suggested that Joanne

change into shorts, so he could perform the massages and

manipulations.

Defendant testified he left the room to allow her to change

in private. He claimed Joanne fell asleep after he finished the

hot packs and massage treatment. He testified Joanne turned

herself from lying on her stomach to lying on her back between 3

p.m. and 4:30 p.m. He and Jean agreed to check on her periodically

during this time. According to defendant, the treatment protocol

began at approximately 1 p.m., and he treated her "for a couple

of hours" throughout the day. When he returned to the exam room

to check on Joanne's condition at approximately 4:20 p.m., she was

sitting in a chair. It was at this time that he administered the

19 A-3551-12T3
second dose of medication, which consisted of pain medication and

Tizanidine, a muscle relaxer. Defendant denied giving Joanne a

second dose of chloral hydrate.

Defendant testified Joanne got up at approximately 7 p.m.,

which is when she saw defendant and Jean putting up Christmas

decorations. Defendant testified that Joanne seemed "tired,"

"fatigued," and "a little unsteady." Jean made Joanne a sandwich,

but she was unable to eat it. She ran into the bathroom after

taking a bite, saying she felt nauseous. Jean went into the

bathroom to check on her condition while he went downstairs.

Defendant denied saying that the drugs he had given her were not

responsible for her nausea. On cross-examination, defendant

acknowledged that one of the most common side effects of chloral

hydrate is nausea.

Defendant described Joanne's condition at this point in time

as "somewhat awake" but not "sharp" enough to drive. He offered

to drive her home with Jean following in her car. He assisted

Joanne with her seatbelt, but denied making any gesture or doing

anything that could be construed as inappropriate sexual conduct.

Joanne did not want defendant or Jean to come into her apartment

because "she was living with somebody." Defendant testified that

he called Joanne's cell phone at 8:21 p.m. to make sure she had

20 A-3551-12T3
made it safely into her apartment. He denied sexually assaulting,

molesting, or inappropriately touching Joanne.

D

Several members of Joanne's family were present in

defendant's office and residence at the time defendant allegedly

sexually assaulted her. Joseph, Joanne's brother, testified as a

witness for the State. He injured his back on the morning of

November 25, 2006, when he "tried to pick up a fish tank with

water in it." He called Jean sometime after 12 p.m. to find out

if defendant could treat his pain.

Defendant testified he remembered Joseph arriving at his

office shortly before 3 p.m. He told Joseph he was also treating

Joanne in exam room two that day. Joseph testified that the door

to exam room two was opened "a crack" when he first came into the

office. The distance between the door to exam room two and the

door to exam room four, where defendant treated Joseph, was

approximately four feet. Defendant closed the door to exam room

two immediately after telling Joseph his sister was in that room.7

7
At trial, Joseph initially testified he did not remember what
defendant did after he told him Joanne was in exam room two. The
prosecutor confronted Joseph with a statement he gave to police
investigators nearly ten years earlier to refresh his
recollection.

21 A-3551-12T3
Joseph did not find it "odd" for defendant to close the door to

Joanne's exam room while he was treating her.

Joseph complained of lower back pain. Defendant asked Joseph

to lift his shirt and proceeded to massage his lower back.

Defendant applied hot towels and gave Joseph "two pills," which

Joseph claimed were a pain killer and a muscle relaxer. The hot

towels and massage treatment lasted about five or ten minutes.

Joseph fell into a sleep-like state in the exam room for

approximately ninety minutes. On cross-examination, Joseph

testified he was not completely asleep. He remembered hearing

footsteps and believed it was defendant coming into the room to

check on him. However, his head was turned away from the door and

he could not say definitively if they were defendant's footsteps

or Jean's.

While defendant was treating Joanne and Joseph, Jean

temporarily left the residence/medical office to purchase

household items at a local Pathmark. Witnesses disagreed on the

precise amount of time it took Jean to complete this task and

return home. According to defendant, Jean was gone for

approximately twenty-five minutes. A Pathmark receipt reveals

Jean's checkout time was 3:21 p.m.

At 3:14 p.m., Jean received a telephone call from her

paternal uncle "Nick." He told Jean that he was on his way to her

22 A-3551-12T3
home with his wife and his mother. Nick testified Jean told him

she was paying for groceries at Pathmark at the time. She

nevertheless told him to "come right over" because Pathmark was

"only about a quarter of a mile away from her house." Nick called

Jean when he arrived to ask her about the best way to enter the

house with his mother, who was suffering from Alzheimer's disease.

Although Jean did not initially answer the phone, she called him

back at 3:42 p.m. and let them in through the garage.

Nick testified that the door to exam room two was closed.

Although the door to Joseph's exam room was slightly ajar, it was

not to the point where he could see inside. Nick saw defendant

using the computer in his office when they arrived. They spoke

to him briefly and then walked to the kitchen without him. Nick

described defendant's demeanor as normal. Nick and his family were

in defendant's house for slightly more than one hour.

Joseph did not hear Jean return from Pathmark. Nor did he

hear Nick and Nick's mother arrive and walk past his exam room.

Joseph testified that he joined his uncle, aunt, and grandmother

in the kitchen when defendant woke him sometime after 4 p.m.

Defendant joined them in the kitchen soon thereafter. In response

to Joseph's question, defendant said Joanne was still asleep.

Joseph testified his back felt much better when he woke up.

He did not experience drowsiness, nausea, or any other side effects

23 A-3551-12T3
from the medication. Shortly before leaving at approximately 4:20

p.m., Joseph saw defendant playing a computer game in his office.

On cross-examination, Joseph stated defendant appeared to be

speaking and acting normally. Joseph telephoned Jean later that

evening to thank defendant for his treatment. In the course of

this conversation, Joseph learned that Joanne was still sleeping.

Defendant called Paul Ditri as an expert witness in the field

of "information technology and the analysis and discovery of

content." In response to the prosecutor's questioning, Ditri

agreed that his purpose "was to try to find any indication to

infer that . . . defendant was on his computer as opposed to

somewhere else in his home or medical office on November 25th[,]

. . . 2006." Toward that end, Ditri reviewed data on the hard

drives the prosecutor had seized from defendant's residence/office

in December 2006. Through this forensic approach, Ditri tried to

determine whether defendant created or altered any files on his

laptop on the date of the alleged assault. He concluded that at

8:48 a.m., 3:44 p.m., and 4:07 p.m., someone had saved data in a

strategy game called "Sid Meier's Alpha Centauri." Ditri further

concluded that an undefined "action" occurred at 5:31 p.m. Ditri

was unable to reach a definitive conclusion on the cause of this

event. "It could have been a close. It could have been an auto

save. It could have been another . . . save of a file that we

24 A-3551-12T3
might not see here because it was played after this date, but

there was some other action done at that time." According to

Ditri, a final update occurred on the laptop at 6:43 p.m. Ditri

opined that at the times indicated, someone had to be physically

present in front of the laptop. He acknowledged that the events

involved only the striking of a computer button. These events

could not pinpoint defendant's whereabouts or activities at other

times on Saturday, November 25, 2006.

II

Fresh-Complaint Evidence

Joanne woke up feeling groggy at approximately 11 a.m. on

Sunday, November 26, 2006. She called Ana M., one of her closest

friends and a person to whom she spoke every day. Ana M. was

forty-five years old and had known Joanne for ten years when the

trial began in 2012. She referred to Joanne as "her best friend."

At Joanne's request, Ana agreed to go to breakfast. Joanne was

quiet in the car, which, according to Ana, was unusual for her.

Joanne testified she ordered her favorite dish, but did not eat

any of it and felt "disturbed." When the prosecutor asked her to

elaborate, Joanne stated: "I knew that something bad had happened

the day before, and I think I was having a very difficult time

coping with it."

Ana testified that after breakfast, she "kept asking [Joanne]

25 A-3551-12T3
what was wrong . . . and [Joanne] started crying[.]" When asked

if she remembered Joanne's "exact words," Ana stated: "That she

believed she was raped." When the prosecutor asked Ana if Joanne

identified her assailant, Ana responded: "Jimmy." Ana testified

that she did not know who "Jimmy" was at the time. Ana also

testified that Joanne did not describe the details of the alleged

assault. When the prosecutor asked Ana why she did not ask Joanne

"for details" of what defendant did to her, Ana simply responded:

"I don't know." The conversation took place in the car and lasted

about twenty minutes. Ana testified that she took Joanne home,

stayed with her for a few hours, and suggested that she tell "a

family member" about her allegations.

The State also called Cristina P., another of Joanne's close

friends. Cristina testified that she called Joanne and left a

voicemail on Saturday, November 25, 2006. Joanne returned

Cristina's call late Saturday night; she told her "she went into

the office, and Jimmy gave her a muscle relaxer because she had

back pains again, and . . . she fell asleep." Cristina described

Joanne's demeanor during the conversation as "very tired, sleepy,

[and] groggy." When asked if Joanne said anything to her about

the treatment she received from defendant, Cristina testified:

She said she wasn't feeling right; she had a
bad feeling. . . . I asked her, ["W]ere you
alone with him[?"] . . . [S]he said, ["N]o,

26 A-3551-12T3
 my sister was there,["] and I said,
["O]kay.["] I didn't want to ask any more
questions[.]

Q. When she said she had a bad feeling, was
it your understanding that she was talking
about . . . her back feeling badly or something
else?

A. [I] [w]asn't sure. I didn't ask too many
questions.

Q. But why did you ask . . . [if] her sister
[was] there?

A. Because I wanted to know if she was alone
with him.

Joanne did not recall speaking with Cristina on Saturday, November

25, 2006.

Joanne woke up feeling "distraught" at 1 a.m. on Monday,

November 27, 2006. She no longer felt the effects of the

medication. "I started to get visions, and everything started to

become so much . . . clearer to me. I started to remember things."

Unable to go back to sleep, Joanne woke Mark sometime between 5

and 6 a.m. and asked him to come to bed with her.8 Joanne testified

she was "very upset and crying a lot." At this time, she told

Mark that she had been sexually assaulted.

Joanne testified that Mark became "visibly upset, but he was

8
Joanne explained that Mark slept on the sofa "because he has bad
sleeping habits."

27 A-3551-12T3
a lot more calm than what [she] would have thought." He told her

she needed to get help, and he advised her to contact the Rape

Crisis Center in Westfield. Joanne told Mark that she did not

call the police at that time because she "wanted to forget about

it" and "didn't want to accept it."

Joanne telephoned the Rape Crisis Center and spoke to a

counselor who convinced her to go to the hospital. At the

counselor's request, Joanne brought her underwear. When she

arrived at the hospital, Registered Nurse (RN) Thelma Keiser9

conducted a sexual assault examination. By this time, however,

Joanne had already showered and performed other bodily functions.

Nurse Keiser was the first person to whom Joanne described the

specific details of the alleged assault. The description of the

assault Nurse Keiser read into the record from her report is

consistent with Joanne's testimony.

Nurse Keiser testified that the physical gynecological

examination she performed did not reveal any injuries or dried

secretions.10 Therefore, she did not find objective physical

9
Nurse Keiser had been an RN since 1951, and was trained to conduct
sexual assault examinations in 2003. According to her testimony,
she had performed approximately thirty of these evaluations
annually since 2003.
10
As Nurse Keiser explained: "A dried secretion is evidence of
body fluids shown up by what we call a black light, and if you see

28 A-3551-12T3
evidence to corroborate Joanne's allegations of sexual assault.

However, Nurse Keiser testified it is rare to find evidence of

physical injury under these circumstances.

Mark testified that Joanne seemed "out of it" when she

returned to the apartment on Saturday, November 25, 2006. Joanne

informed Mark that she was previously unable to call because

defendant had given her pain killers and a muscle relaxer, and she

had been "trying to sleep it off." According to Mark, Joanne did

not say anything to him about the alleged sexual assault the next

day, Sunday, November 26, 2006. Rather, she revealed her

allegations when they awoke at 7 a.m. on Monday, November 27,

2006. Mark and Joanne ended their romantic relationship in

February 2007. He stated Joanne had never abused alcohol or taken

illicit drugs while they were romantically involved, and to the

best of his knowledge, she had never before accused anyone of

sexual molestation.

The State also called Joanne's brother and father to provide

fresh-complaint testimony. We will describe their testimony when

we address the family's intervention.

that, you take a swab and dampen it and rub that area." In this
context, bodily fluids can be semen, blood, and/or saliva.

29 A-3551-12T3
 III

A

Family Intervention

Joanne called her father after the hospital examination and

told him she wanted to speak to her parents together. According

to her father, "Marco," Joanne sounded upset on the phone; he

detected a sense of urgency in her voice. Joanne met with her

parents at a public park. In an effort to refresh his recollection,

the prosecutor confronted Marco with two statements he had given

eight years earlier.11 The prosecutor asked Marco: "[H]ave you

said in the past, back in December of '06, that [Joanne's] exact

words were, 'Daddy, I was drugged, and I was raped?'" Marco

responded: "Yes."

On the afternoon of November 27, 2006, Marco called Joseph

and Jean to his home and told them of Joanne's allegations against

defendant. Joanne told her family members that during the time

defendant was sexually assaulting her, she heard the sounds of

photographs being taken. When the prosecutor asked Joanne to

elaborate on what was discussed during the family meeting, defense

counsel immediately objected. The prosecutor ultimately withdrew

11
Marco gave the first statement to defendant's attorney on
December 21, 2006; he gave the second statement to a police
detective on December 29, 2006.

30 A-3551-12T3
the question at the end of a sidebar conference with the court.

The prosecutor opted to establish the family's agreed-upon

course of action by asking Joanne the following leading questions:

Q. At the end of this meeting, was it
understood that no one in your family was
going to confront the defendant about your
allegations?

A. That is correct.

Q. At the end of this meeting, was it decided
that your father and your sister were going
to try to get some answers regarding what
happened on Saturday?

A. That is correct.

Joanne was scheduled to work at defendant's medical office

on Monday, November 27, 2006, but she

"called in sick." Her sister Jean took the message. Joanne did

not return to work thereafter and has not had any contact with

defendant since Saturday, November 25, 2006. Assisted by her

father and brother, Jean moved out of defendant's residence without

his knowledge the following week. By December 2, 2006, Jean had

moved out all of her belongings and had relocated to Joseph's

house.

As agreed upon at the family meeting, Marco wanted to

determine whether there was any physical evidence to corroborate

Joanne's allegations against defendant. The prosecutor addressed

this issue while eliciting Marco's direct testimony.

31 A-3551-12T3
Q. [W]hat did you instruct [Jean] to do during
that family meeting? What was your concern?

A. My concern [was] that if there [was] any
proof of anything, I wanted to save it for the
authorit[ies.] I wanted to grab whatever . .
. possible to prove that there was or was not
anything that had happened[.]

Q. So what was your instruction to [Jean]?

A. To get whatever [was] in that room in the
part of the house where, according to
[Joanne], it took place. I want[ed] the
garbage. I want[ed] anything else that [was]
in that room[.]

THE COURT: In which room?

. . . .

A. The treatment room. . . . Where [Joanne]
was.

THE COURT: And you told her to get what in
that room?

A. I wanted the garbage, the gar[b]age pail
or anything that could be – that had been used
in that room in that moment.

Q. Did you tell her to look for the camera?

A. Camera is one, yes.

Q. Did you tell her to look for the underwear
or clothes, anything that –

A. That's correct.

Q. – that could shed light on the situation?

A. That's correct.

[(Emphasis added).]

32 A-3551-12T3
 Marco made clear that at the time, no family member suggested

that Joanne report the incident to the police. Marco also

instructed the family not to confront defendant with Joanne's

allegations. When asked why he took this approach, Marco stated:

A. Because I want[ed] to play safe. I want[ed]
to see how things develop[ed].

Q. Did you want time to conduct your own
investigation?

A. I wanted time. No, I want[ed] time for
[Joanne] to come up with the truth.

Q. Well, you've never said that before; is
that right?

A. No, I'm saying that right now.

At trial, Jean's parents continued to express reservations

about the veracity of Joanne's allegations. Both parents testified

that Joanne said she had "doubts" about what actually happened and

believed defendant may not have penetrated her at all. The

following exchange during cross-examination illustrates this

point.

Q. Would you agree with me that the reason
that you wanted to have this investigation to
determine if there was any truth to this was
because [Joanne] was saying things that were
confusing to you?

A. Very much indeed.

Q. And was saying things that you considered
inconsistent?

33 A-3551-12T3
 A. Definitely.

Q. At any time after November 27th, [2006],
did you ever hear [Joanne] say, either to you
or in your presence, that there was no
penetration in the events that occurred on
November 25th[,] [2006]?

A. Yes, many times.

"Gail," Joanne's mother, testified as a witness for the

defense. She corroborated her husband's testimony concerning the

inconsistent nature of Joanne's allegations. In particular, Gail

testified about a conversation she had with Joanne on Monday,

November 27, 2006. Before we recite Gail's testimony, we note the

record reflects that Gail became emotionally distraught when she

first attempted to testify about Joanne's inconsistencies. Her

emotional state prompted the trial judge to take a ten-minute

recess to permit Gail to regain her composure. The prosecutor did

not object nor request that the judge give the jury any curative

instructions.

The following exchange occurred when the trial resumed.

Q. [Gail], you were at a point where you were
telling us that you sat down in front of
[Joanne].

A. Yes. My knees [were] touching her knees
and I put my –

THE COURT: Louder, please.

34 A-3551-12T3
 A. I put my hand on her lap and I says to her
[Joanne], can I ask you a few questions and
she said yes. So I said did Jimmy touch your
face[?] She said no. Did he put his penis
in your mouth[?]. She said no. How about
your chest? Did he touch you in your chest[?]
No. How about your stomach? No. How about
he put his penis in your stomach and rub it?
No. I said how about down there in your first
hole that he put his finger inside of you[?]
No. How about his penis? Did he put it inside
of you[?] She said no. How about hole in the
back? Did he put his penis inside of you[?]
No. How about his fingers? No. And I look
at her and says [Joanne], he didn't do
anything to you. He didn't put his penis
inside of you in any way. He didn't touch
you. That's not rape. She said no.

Nevertheless, neither Marco nor Gail informed the prosecutor

or defense counsel about Joanne's alleged recantations, doubts,

or inconsistencies. On redirect, Marco acknowledged he spoke with

defendant's prior counsel for about an hour and a half on December

21, 2006, never mentioning that his daughter had expressed doubts

about what defendant allegedly did to her. Marco also failed to

mention Joanne's doubts in a statement he gave to law enforcement

investigators on December 29, 2006.

On December 21, 2006, Gail gave a tape-recorded statement

during a forty-five-minute interview with defense counsel. She

also met with defense counsel in 2009, but she consistently refused

to speak to law enforcement investigators. According to Gail,

Joanne told her several times that she believed the incident may

35 A-3551-12T3
have been a bad dream. However, when asked whether she thought

Joanne believed in the truth of her own allegations, Gail

responded: "Yes." Gail testified that she has ceased all contact

with Joanne because Joanne would not drop the charges against

defendant.

B

Items Collected by the Family

In the days following the family meeting, Marco took

possession of certain items that proved to be a significant part

of the State's case. First, Joanne gave Marco the bra she had

been wearing on the day of the incident; this item was packaged

in a paper bag. Then, acting on instructions he received from

Jean, Joseph took possession of a towel and a pair of shorts, each

packaged in separate Ziploc bags. Jean, who was residing at her

brother's house at this time, removed these items from defendant's

house without defendant's knowledge or consent. Joseph did not

remember where the items were located in the house when he picked

them up.

Marco testified that Jean gave him the towel and the pair of

shorts, as well as a camera. Marco intended to keep the items

exactly as Jean gave them to him. He believed the shorts were the

ones Joanne had been wearing at the time of the incident; he was

also aware Jean had already washed them by the time he took

36 A-3551-12T3
possession. Marco did not know where Jean found the towel.

Acting on Jean's direction, Joseph took the PalmPilot from

defendant's office. Marco testified that he and Jean took

defendant's PalmPilot to a company called "Disk Doctors" in an

effort to determine whether defendant used the device to take

pictures of Joanne. The State called Asim Qureshy, a Disk Doctors

former employee. Qureshy testified that Disk Doctors investigated

defendant's PalmPilot in November 2006 and failed to uncover any

photographs depicting nudity or sexual content.12

IV

Law Enforcement Investigation

Detective Judd Levenson of the Springfield Police Department

was one of the lead law enforcement investigators assigned to the

case. In addition to taking Joanne's statement, Detective Levenson

took statements from several of Joanne's friends and family members

(excluding Gail and Jean).13 On December 14, 2006, Levenson

12
It is undisputed that Disk Doctors "was unable to recover any
data that corroborated Joanne's version of the events." Mauti,
supra, 208 N.J. at 527.
13
In December 2006 and April 2007, Jean was compelled to testify
before the grand jury that indicted defendant because she was not
yet married to him. Jean invoked the marital privilege under
N.J.R.E. 501(2) on October 29, 2007, the day after she married
defendant. She thereafter successfully defended her right not to
testify against her husband before this court, Mauti, supra, 416
N.J. Super. at 181, and the Supreme Court, supra, 208 N.J. at 523.

37 A-3551-12T3
executed a search warrant of defendant's home and medical office

to determine the presence of and possibly seize: (1) "cameras or

any type of electronic device that could take a photo image, store

a photo image, [or] view a photo image," (2) "narcotic substances

that could cause a person to become unconscious, semi-conscious,

or in any way immobilize a person," (3) medical records relating

to Joanne, and (4) "any evidence related to a sexual assault."

The law enforcement agents who executed the warrant were instructed

to photograph all of the identified narcotics in the office and

to "seize anything that was packaged in an unlabeled container or

bottle or . . . anything found that was in a different person's

name or prescribed by a different doctor."

At the time Levenson executed the search warrant, the police

had not yet received the results of Joanne's physical evaluation

showing the presence of chloral hydrate in her system. Levenson

thus merely photographed all of the drugs on the premises,

including a box of chloral hydrate cuplets he found in a cabinet

in exam room three and a bottle containing chloral hydrate syrup.

The search did not uncover any medical records documenting the

treatments Joanne received in 2006.

At the time of their search, law enforcement investigators

were also unaware that Marco and/or Jean were in possession of

items they deemed relevant to this case. On December 21, 2006,

38 A-3551-12T3
one week after the search of defendant's property, Jean and Marco

voluntarily turned over the PalmPilot and its memory card, but

withheld the shorts, the towel, and the bra. On December 22,

2006, Levenson obtained and executed a warrant to search Marco's

home. While the investigators were executing the search warrant,

Marco produced a tool box containing a bra wrapped in a paper bag

and two gallon-sized Ziploc bags containing the shorts and the

towel.

Although the bag containing the towel was unopened, Levenson

noticed an "off-white colored type of staining." Levenson

testified he noticed "the same color and the same type of

terrycloth towels" in a drawer of a nightstand in the master

bedroom of defendant's residence. Defendant testified "it was

just our practice that when [Jean] was having her period we would

not have intercourse but we would still be intimate[.]" According

to defendant, the towel seized during the search would have had

his semen on it as a result of this practice.

The police did not find any "terrycloth towels or any types

of towels that could be laundered in a washing machine" in the

medical side of the building. All of the towels on the medical

side of the building "were either regular rolls of white paper

towels or some type of . . . flimsy cloth material that you can

just use and throw away." Tests later confirmed that defendant's

39 A-3551-12T3
semen was on the towel. However, there was no evidence of female

DNA on the towel.

Stipulations

In early March 2007, the Union County Prosecutor's Office

received a toxicology report showing that Joanne's November 27,

2006 urine sample tested positive for Ephedrine and Phenetol

(Tramadol). The report was prepared by the New Jersey State Police

Laboratory, Analytical Biochemistry Laboratory, Inc., and the

Federal Bureau of Investigations (FBI) Laboratory for Forensic

Examinations. The State and defendant stipulated before the jury

that the New Jersey State Police did not screen Joanne's urine

sample for the presence of chloral hydrate. Defense counsel also

stipulated to the authenticity and accuracy of the sexual assault

evaluation.

The State and defendant further stipulated before the jury

that on August 14, 2007, Analytical Biochemistry, Inc. screened

Joanne's urine sample for the presence of zolpidem (Ambien) and

chloral hydrate. The sample tested negative for zolpidem

metabolics and positive for chloral hydrate metabolics. The

parties stipulated that no substance other than chloral hydrate

can break down into chloral hydrate metabolics.

The State and defendant further stipulated that on January

29, 2009, the FBI screened Joanne's urine sample and found it

40 A-3551-12T3
positive for the presence of chloral hydrate metabolics. In the

interest of completeness, we note that defendant also stipulated

to the authenticity and accuracy of the State Police's evaluations

concerning the bra, towel, and shorts seized on December 22, 2006.

No petroleum-based products were found on these items. Defendant's

semen was found on the towel.

V

Against this record, defendant now raises the following

arguments.

POINT I

INTRODUCTION OF THE TESTIMONY ABOUT THE TOWEL
AND ITS DNA EVIDENCE WAS ERROR BECAUSE IT
VIOLATED THE CONFRONTATION CLAUSE; WAS
INADMISSIBLE HEARSAY; LACKED ANY FOUNDATION;
AND ANY PROBATIVE VALUE WAS FAR OUTWEIGHED BY
THE UNFAIR PREJUDICE.

A. The Nature of the Evidence.

B. The Prosecution Used the Towel
To Corroborate [Joanne's]
Allegations.

C. The Trial Court's Erroneous
Ruling.

D. Mauti's Constitutional Right
to Confront [Jean's] Incriminating
Statement Was Violated.

E. The Testimony of [Marco] and
[Joseph] Regarding [Jean] Bringing
the Towel to Her Father Was
Inadmissible Assertive Conduct
Hearsay.

41 A-3551-12T3
 F. Beyond the Confrontation and
Hearsay Issues, It Was Error to
Admit the Towel Because It Lacked
Foundation and Was Not Relevant.

G. The Admission of the DNA
Evidence Compounded the Prejudice.

POINT II

IT WAS ERROR TO PERMIT THE INTRODUCTION OF
HEARSAY EVIDENCE UNDER THE FRESH COMPLAINT
DOCTRINE.

POINT III

IT WAS ERROR TO PERMIT THE INTRODUCTION OF
ADDITIONAL HEARSAY EVIDENCE AND EXHIBITS
(WITHOUT OBJECTION) THAT BOLSTERED THE
CREDIBILITY OF THE COMPLAINANT.

POINT IV

IN A CASE OF FIRST IMPRESSION, THE TRIAL COURT
ERRONEOUSLY ADMITTED A LETTER SUBMITTED TO THE
STATE BY HIS COUNSEL AS MAUTI'S STATEMENT.

A. The Letter and The State's Use
of It.

B. The Judge's Ruling.

C. The Letter is Barred by
N.J.R.E. 410.

D. The Letter Should Have Been
Barred by N.J.R.E. 403.

POINT V

IT WAS ERROR TO ADMIT EVIDENCE OF UNRELATED
ALLEGED INCIDENTS OF SEXUAL INTEREST.

a. The Laser Treatment Interaction.

42 A-3551-12T3
 b. The Peeping Allegations.

c. Overwhelming Prejudice.

We begin our analysis by determining the admissibility of the

towel containing defendant's semen. This court reviews "the trial

court's evidentiary rulings for abuse of discretion." State v.

Gorthy, 226 N.J. 516, 539 (2016). Thus, "trial courts are granted

broad discretion in making decisions regarding evidentiary

matters, such as whether a piece of evidence is relevant . . . and

whether a particular hearsay statement is admissible under an

appropriate exception[.]" State v. Scharf, 225 N.J. 547, 572

(2016) (citations omitted). We will reverse an evidentiary ruling

only if it "was so wide off the mark that a manifest denial of

justice resulted." Griffin v. City of E. Orange, 225 N.J. 400,

413 (2016) (citations omitted).

After reviewing the extensive record developed before the

trial court on this issue, we are satisfied the court abused its

discretion in admitting the towel. The court's decision denied

defendant's right to a fair trial and resulted in a manifest denial

of justice. See State v. Perry, 225 N.J. 222, 235 (2016)

(explaining that the right to a fair trial encompasses a criminal

defendant's right to confront the witnesses against him).

43 A-3551-12T3
 NONVERBAL CONDUCT HEARSAY

Among the items Jean retrieved in response to her father's

nebulous request "to grab whatever . . . possible to prove that .

. . anything . . . had happened" was a towel stained with

defendant's semen. The trial judge made the following findings

in support of his decision to deny defendant's motion to exclude

the towel:

[Jean] lived in the house on a regular
basis[;] she was the office manager who was
in the office on a regular basis[;] and she
was engaged to the defendant and living with
him as a significant other at that point in
time.

It's a fair inference that she knows what's
in the house, [and] what the various towels,
linens and other things in the house . . .
[are] . . . used for. It's also a fair
inference that she knew what was in the
office, [and] how the office was run[.] And I
think it's also a fair inference that she knew
about the sexual relations between her and the
defendant.

Based on those . . . fair inferences, and in
response to what [Marco] asked her to bring,
she . . . brought him this towel[.]

Under these circumstances, defendant argues: (1) Jean's

behavior was nonverbal conduct under N.J.R.E. 801(a)(2); (2) the

towel was irrelevant under N.J.R.E. 401 because it was not linked

to any specific aspect of the alleged sexual assault; and (3) the

DNA evidence found on the towel should have been excluded under

44 A-3551-12T3
N.J.R.E. 403 because its prejudicial nature far outweighed its

probative value. The State argues the record supports the trial

court's findings and subsequent legal decision to admit the towel

into evidence. We conclude the towel should have been excluded

because it constituted inadmissible hearsay and was not relevant

to any disputed factual issue.

N.J.R.E. 801(c) defines hearsay as a "statement, other than

one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted."

(Emphasis added). N.J.R.E. 801(a) defines a statement as "(1) an

oral or written assertion or (2) nonverbal conduct of a person if

the person intends it as an assertion." (Emphasis added). Our

Supreme Court held that a physician engaged in "nonverbal conduct,"

as that term is used in N.J.R.E. 801(a)(2), when the physician

altered a patient's medical records to conceal malfeasance:

The alteration of [the plaintiff's] medical
records constituted a verbal act . . . by [the
defendant] tantamount to a statement that was
evidential against him under the rule.14 That
is "no more than an application of the general
proposition that the behavior of a litigant
with respect to relevant evidence may permit
an inference that his behavior was prompted
by a conscious appreciation that the evidence
would or might be hurtful to . . . his

14
The Court was referring to N.J.R.E. 803(b), which provides "a
statement made by a party opponent may be offered against him or
her in evidence." Rosenblit, supra, 166 N.J. at 409 (citing
N.J.R.E. 803(b)).

45 A-3551-12T3
 position." . . . A jury could infer from [the
defendant's] behavior that he believed that
[the plaintiff's] medical records would
prejudice his position in the litigation.
That belief could be significant to a jury
faced with expert evidence in equipoise.

[Rosenblit v. Zimmerman, 166 N.J. 391, 409
(2001) (citations omitted).]

Here, Jean's nonverbal conduct should have been excluded as

inadmissible hearsay under N.J.R.E. 802(a)(2). The trial judge's

findings illustrate the prejudice associated with admitting a non-

testifying witness's nonverbal conduct. The judge found the jury

was free to infer the towel had a direct evidential connection to

Joanne's allegations, based only upon Jean's familiarity with

defendant's personal and professional conduct. The jury was also

free to infer that Jean selected the towel to forge a connection

between the DNA evidence contained therein and the charges in this

case, despite the absence of any evidence supporting such a

connection. Without Jean's testimony to provide a proper

evidential context, the admission of her nonverbal conduct

permitted the jury to speculate about her motives and criteria for

selection of the towel, thereby imbuing the towel with a probative

value wholly unsupported by competent evidence.

The Confrontation Clause of the Federal and State

Constitutions guarantee defendant's right to confront the

witnesses against him. U.S. Const. amend. VI; N.J. Const. art. I,

46 A-3551-12T3
¶ 10. "The right of confrontation 'bars admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity

for cross examination.'" State v. Gibson, 219 N.J. 227, 240 (2014)

(quoting Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266,

2273, 165 L. Ed. 2d 224, 236 (2006)). Because Jean's nonverbal

conduct constituted testimonial evidence, the trial court violated

defendant's right under the Confrontation Clause by admitting this

evidence. State v. Basil, 202 N.J. 570, 591 (2010) (citing

Crawford v. Washington, 541 U.S. 36, 50–53, 68, 124 S. Ct. 1354,

1363–65, 1374, 158 L. Ed. 2d 177, 192—94, 203 (2004)).

The prosecutor's decision to emphasize Jean's nonverbal

conduct as a key part of the State's case significantly exacerbated

the prejudice this hearsay evidence caused, thus undermining

defendant's right to a fair trial. The following remarks from the

prosecutor's summation illustrate this point:

If [Jean] thought there was absolutely no
possibility that this defendant could commit
these crimes[,] she wouldn't be running around
putting shorts, . . . semen-stained towels,
and PalmPilots in Ziploc bags and moving
[every one] of her belongings out of his
house.

. . . .

There was DNA evidence involved in this case
and the towel was it.

47 A-3551-12T3
 . . . .

What we . . . know is that [defendant's] semen
is on this towel and we know that this is the
type of towel that he uses when he's looking
to ejaculate or clean up after sex.

We know this towel is available to him in his
bedroom located right next to his office[.]

. . . .

It makes no sense[.] . . . [I]f [Jean] was
involved in any way with the defendant's semen
getting on the towel[,] there would be no need
for her to take it. She would know it ha[d]
nothing to do with the sexual assault.

So now we consider, well, maybe she was taking
it as a DNA sample. Really? It makes no
sense that [Jean] took this towel for a DNA
sample. If you believe that, then you also
have to believe that in the midst of being
convinced that this defendant raped her
sister[,] she engaged in a sexual act with
him.15

She couldn't wait to get herself out of that
house and far away. I suggest to you that the
furthest thing from her mind was wanting to
engage in any type of intimate act with the
defendant[.] [P]lus isn't it common knowledge

15
The prosecutor's exhortation to the jury also undermined the
public policy underpinning the spousal privilege codified in
N.J.R.E. 501(2). Jean has a right not to be compelled to testify
as a witness against her spouse. This rule of evidence is intended
to protect the institution of marriage as a matter of public
policy. As our Supreme Court noted in Mauti I, "the spousal
privilege is intended to protect the sanctity and tranquility of
marriage from the negative consequences which are 'presumed to
attend the compelled condemnation of one spouse by another in a
criminal proceeding.'" Mauti, supra, 208 N.J. at 534 (quoting
State v. Baluch, 341 N.J. Super. 141, 171 (App. Div.), certif.
denied, 170 N.J. 89 (2001)).

48 A-3551-12T3
 that if you need a DNA sample, [you] grab a
toothbrush, . . . a razor, [or] . . . a
hairbrush?

The prosecutor improperly urged the jury to speculate on

Jean's state of mind and to infer a sinister purpose from her

nonverbal conduct, thereby exploiting defendant's inability to

refute the implications attributable to a non-testifying witness.

This approach took full advantage of the inherent prejudice

associated with hearsay evidence. Defense counsel also argued the

prosecutor exceeded the scope of the trial court's original ruling

when she stated that Jean's decision to take the towel, shorts,

and PalmPilot suggested "a state of mind that [Jean] had about

whether or not there was an opportunity to commit this sexual

assault."16 The trial judge agreed and gave the jury the following

cautionary instruction:

[T]here has been a comment by the prosecutor
that from the evidence you may infer that
[Jean's] actions caused her to believe that
there was a window of opportunity to commit
the offense.

I hereby instruct you that you may not
consider such an inference as to whether
[Jean] believed there was a window of
opportunity or not to commit the crime.

16
We make clear defense counsel preserved for the record all of
his earlier objections to the admissibility of this evidence.

49 A-3551-12T3
 This curative instruction was insufficient to counteract the

prejudice caused by the admission of this hearsay evidence.

Defendant also argues the towel should have been excluded

because it was not relevant to any disputed issue. We agree.

N.J.R.E. 401 defines relevant evidence as "evidence having a

tendency in reason to prove or disprove any fact of consequence

to the determination of the action." The Supreme Court has made

clear that "the primary focus in determining the relevance of

evidence is whether there is a 'logical connection between the

proffered evidence and a fact in issue.'" State v. Willis, 225

N.J. 85, 98 (2016) (quoting State v. Covell, 157 N.J. 554, 565

(1999)).

Here, the State failed to present any evidence linking the

towel to the sexual assault described by Joanne. None of the

witnesses who testified for the State had personal knowledge about

how defendant's semen came to be on the towel; nor did they explain

how the towel was connected to the sexual assault. Joanne's

testimony did not mention defendant ejaculating or using a towel

to wipe or contain his semen. Indeed, the prosecutor conceded

this point in her summation to the jury.

We hold that the trial court erred in admitting the towel

into evidence because Jean's retrieval of the towel in response

to her father's request constituted nonverbal testimonial hearsay.

50 A-3551-12T3
The admission of this hearsay evidence violated defendant's right

to a fair trial. Gibson, supra, 219 N.J. at 241–42. Accepting

the veracity of Joanne's testimony arguendo, we also hold the DNA

evidence contained in the towel was not relevant and thus should

have been excluded under N.J.R.E. 401. In light of these legal

conclusions, defendant's argument concerning N.J.R.E. 403 is moot.

FRESH-COMPLAINT DOCTRINE

We next consider defendant's argument concerning the misuse

of fresh-complaint testimony. Justice Garabaldi, the first woman

to sit as an Associate Justice on the New Jersey Supreme Court,

explained the evolution of the fresh-complaint doctrine in State

v. Hill, 121 N.J. 150 (1990). Writing for a unanimous Court,

Justice Garabaldi stated:

The fresh-complaint doctrine evolved as a
response to the common-law requirement of "hue
and cry." Victims of violent crimes were
expected to cry out immediately and alert
their neighbors that they had been violently
assaulted. The neighbors could then initiate
a collective search for the aggressor. The
"hue and cry" also served to dispel any
suspicion that the victim had been somehow
involved or complicit in the crime[.]

[Id. at 157.]

Justice Garabaldi conducted a thorough, scholarly review of

the doctrine's sexist origins, which perpetuated the myth that a

woman who has been sexually assaulted will "naturally" report the

51 A-3551-12T3
incident in a timely fashion; and for those who failed to do so,

"the only rational explanation was that she had not really been

raped." Id. at 160. Justice Garabaldi noted that by the time

Hill was decided in 1990, these legally misguided, morally

offensive notions of a woman's typical reaction to sexual violence

had been mostly discredited. Id. at 162. Those courts and

commentators who continue to adhere to the fresh-complaint

doctrine "often based their continued adherence to the rule on

intuitive, pseudo-Freudian analysis of the ways a 'normal' woman

would react to sex and to rape." Ibid.

Despite these misgivings, the Court in Hill ultimately

"conclude[d] that women victims are better served by the

continuance of the fresh-complaint doctrine than by its

elimination. The present rule as designed neutralizes jurors'

negative inferences concerning the woman's silence after having

been raped." Id. at 170. However, the Court expressly warned

against extracting an accusation from an alleged victim of sexual

assault through coercion. Ibid. The Court thus charged the trial

court with the responsibility "to examine all the circumstances

of the questioning to determine whether the line between coercive

and benign questioning has been crossed." Ibid.

In Hill, the Court also empowered the trial court with the

discretion to determine when fresh-complaint testimony should be

52 A-3551-12T3
excluded as duplicative:

We have traditionally left it in the hands of
the trial court to decide whether to limit or
exclude witnesses. See State v. Mucci, 25
N.J. 423, 433 (1957) ("The question of
limiting witnesses calls for the exercise of
sound discretion in the context of the
circumstances of the particular case. There
can be no doubt as to the power of the trial
judge to restrict the number of
witnesses[.]"). It would usurp the trial
court's discretion to establish a blanket
policy restricting testimony that fully
qualifies for admissibility under the fresh-
complaint rule but is duplicative or
prejudicial.

. . . .

There may be instances in which the trial
court may find no prejudice from duplicative
fresh-complaint testimony. That may occur
when the victim complained at various times
to different people, or when so much other
evidence exists that duplicative testimony is
unlikely to tip the scales. Yet, in close
cases in which the victim's complaint has
already been once established and it appears
that repeated fresh-complaint testimony would
leave the jury with the impression that the
State has gathered a greater number of
witnesses than the defense, the trial court
may properly exercise its discretion and
exclude the testimony.

[Id. at 169–70.]

As our Supreme Court recently reaffirmed and explained, the

fresh-complaint doctrine:

allows the admission of evidence of a victim's
complaint of sexual abuse, otherwise
inadmissible as hearsay, to negate the

53 A-3551-12T3
 inference that the victim's initial silence
or delay indicates that the charge is
fabricated. . . . In order to qualify as fresh-
complaint evidence, the victim's statement
must have been made spontaneously and
voluntarily, within a reasonable time after
the alleged assault, to a person the victim
would ordinarily turn to for support.

. . . .

Only the facts that are minimally necessary
to identify the subject matter of the
complaint should be admitted; the fresh-
complaint testimony is not to be used "to
corroborate the victim's allegations
concerning the crime."

[R.K., supra, 220 N.J. at 455–56 (citations
omitted).]

Defendant argues the trial judge erred in allowing the State

to present fresh-complaint testimony from five witnesses, to wit,

Marco, Joseph, Ana M., Cristina P., and Mark. Defendant argues

the fresh-complaint testimony of these five witnesses was

impermissibly cumulative and improperly bolstered Joanne's

credibility. Defendant emphasizes that he never challenged

Joanne's credibility based on her failure to report the alleged

sexual assault in a timely manner. His defense was predicated on

the effects the medication had on Joanne's perception and

recollection of what occurred on November 25, 2006.

At the charge conference conducted pursuant to Rule 1:8-7(b),

the trial judge decided, sua sponte, not to give the jury any

54 A-3551-12T3
instructions on fresh-complaint testimony. The judge provided the

following explanation in support of his ruling:

[W]hile there were some witnesses in this case
that you could characterize as fresh[-]
complaint witness[es][,] my inclination is
that the fresh[-]complaint charge should not
be given here for the following reasons.
Usually[,] a fresh[-]complaint witness is
someone whose testimony would not be
admissible otherwise and is only being
admitted . . . to rebut the inference that the
jury might make that someone who was sexually
assaulted wouldn't disclose to someone who's
close to them in a reasonable period of time.

Now, in this case, there [were] a number of
early disclosures [such as to a] friend, [to
a] boyfriend, [or to] family members, and the
jury has heard all that. But that evidence
is also relevant to a whole lot of other
things, like motive, memory, quality of
memory, prior consistent [statements][,] or
[prior] inconsistent statements. And . . .
that evidence was coming in anyway, even if
there was no fresh[-] complaint doctrine.

. . . .

PROSECUTOR: I agree with your assessment, Your
Honor. We . . . have no objections to taking
that out.

DEFENSE COUNSEL: Originally our objection to
the offer that fresh[-]complaint testimony
should come in was that the rule only allows
for it to negate the inference that the
[complaining witness] failed to report it.

. . . .

[W]e said that there was no need for fresh[-
]complaint witnesses because we felt that the
. . . defense would never assert that she

55 A-3551-12T3
 failed to promptly report to people that she
would be expected to report to. So I don't
think anything has changed. Our feeling from
the beginning was that this is a not a fresh[-
]complaint issue.

. . . .

THE COURT: Do you think the fresh[-]complaint
charge [should be] given?

DEFENSE COUNSEL: . . . [W]e do not need it in
this case at this point.

In its letter-brief, the State contends, without citation to

the record,17 that "defense counsel withdrew his objections to the

admission of the [f]resh[-][c]omplaint testimony." Consequently,

even if we were to conclude that the admission of the testimony

was error, such error cannot serve as a basis for reversal on

appeal. The State relies on the invited-error doctrine, which is

"intended to 'prevent defendants from manipulating the system' and

will apply 'when a defendant in some way has led the court into

error' while pursuing a tactical advantage that does not work as

planned." State v. Williams, 219 N.J. 89, 100 (2014) (quoting

State v. A.R., 213 N.J. 542, 561-62 (2013), cert. denied, sub nom.

Williams v. New Jersey, ____ U.S. ____, 135 S. Ct. 1537, 191 L.

Ed. 2d 565 (2015)).

17
It is the parties' "responsibility to refer us to specific parts
of the record to support their argument." Spinks v. Township of
Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008), certif. denied,
197 N.J. 476 (2009).

56 A-3551-12T3
 The State's characterization of defendant's position with

respect to the admissibility of fresh-complaint testimony is not

supported by the record. To the contrary, defense counsel

strenuously advocated against the admission of fresh-complaint

testimony in pre-trial motions. Thus, defense counsel's legal

position at the charge conference remained analytically

consistent. We conclude the trial judge abused his discretionary

authority when he permitted five witnesses to provide fresh-

complaint testimony. The cumulative effect of these witnesses'

testimony improperly bolstered Joanne's credibility. The trial

judge's failure to instruct the jury on how to consider this fresh-

complaint testimony significantly exacerbated the prejudice caused

by this threshold error.

We first address defense counsel's position at the charge

conference. The State argues defense counsel's acquiescence to

the judge's decision not to instruct the jury on fresh-complaint

testimony during the charge conference precludes defendant from

raising this issue on appeal under the invited error doctrine.

The State's position is inconsistent with the Supreme Court's

holding in State v. Jenkins, 178 N.J. 347 (2004).

In Jenkins, the defendant was tried before a jury on the

charge of murder and related offenses. Id. at 355–56. At the

charge conference, the defense counsel argued to the trial court

57 A-3551-12T3
"against instructing the jury on lesser-included offenses

pertaining to homicide, preferring to gamble with an all-or-

nothing approach on the murder charge." Id. at 356. The jury

found the defendant guilty of murder. Id. at 357. Among the

issues raised on direct appeal to this court, the defendant

"reversed positions" and "notwithstanding his request at trial,"

argued the trial court "erred in failing to instruct [the jury]

on lesser-included offenses of reckless manslaughter and

aggravated manslaughter." Ibid. We agreed and vacated the

defendant's convictions. Ibid. (citing State v. Jenkins, 356 N.J.

Super. 413, 431 (App. Div. 2003)).

On appeal to the Supreme Court, the State argued "that the

doctrine of invited error precludes a defendant from taking a

position at trial and then, after embracing that approach to his

ultimate disadvantage, changing course on appeal and alleging

error." Id. at 358. The Court framed the legal question as

follows: "We first must determine if the error was, in fact,

'invited.' Specifically, we focus on whether a defendant invites

error merely by advocating an erroneous approach or, instead,

whether the court actually must rely on the defendant's position

in reaching a result." Ibid.

The Court began its analysis by noting that, historically,

the doctrine of invited error has been used in cases in which a

58 A-3551-12T3
defendant has beseeched the trial court to adopt a particular

legal position and then repudiates that same position when the

outcome of the trial was unfavorable. Ibid. (citations omitted).

"Thus, when a defendant asks the court to take his proffered

approach and the court does so, we have held that relief will not

be forthcoming on a claim of error by that defendant." Ibid. Up

to that point, the Jenkins Court noted it had characterized the

doctrine of invited error "as error that defense counsel has

'induced.'" Id. at 359 (quoting State v. Corsaro, 107 N.J. 339,

346 (1987)). "However, we have not decided whether actual reliance

by the court is necessary to trigger the doctrine." Ibid.

(emphasis added).

After reviewing the similarities between the doctrine of

invited error and its civil law analog, the doctrine of judicial

estoppel, the Jenkins Court reached the following conclusion:

The evil to be avoided is untoward control of
the system, leading to inconsistent results.
Central to that concern is the principle that
a litigant should not be allowed to mislead
courts by having one tribunal rely on his or
her initial position while a subsequent body
is led in a different direction. Thus, it
follows that "[t]o be estopped a party must
have convinced the court to accept its
position in the earlier litigation." Kimball
Int'l, Inc. v. Northfield Metal Prods., 334
N.J. Super. 596, 606-07 (App. Div. 2000).

The criminal analog of invited error also is
designed to prevent defendants from

59 A-3551-12T3
 manipulating the system. Therefore, the
invited-error doctrine, like its civil-law
counterpart, is implicated only when a
defendant in some way has led the court into
error. Conversely, when there is no evidence
that the court in any way relied on a
defendant's position, it cannot be said that
a defendant has manipulated the system. Some
measure of reliance by the court is necessary
for the invited-error doctrine to come into
play.

[Jenkins, supra, 178 N.J. at 359 (emphasis
added).]

Applying these principles to the salient facts in Jenkins,

the Court affirmed our decision to reverse the defendant's

conviction based on the trial court's failure to instruct the jury

to consider lesser-included offenses of the charge of murder. Id.

at 364. The Supreme Court quoted the trial judge's analysis in

Jenkins to show that despite the pleas from the prosecutor

reminding the court it had an "independent duty to make that

determination irrespective of [the] defendant's position, the

court agreed with [the] defendant." Id. at 360. Thus, the

Supreme Court concluded that the trial court's comments made clear:

that the court arrived at the decision not to
instruct on lesser-included offenses
independently of any invitation or
encouragement by defendant. As such, the
doctrine of invited error does not apply.
However, because defendant did not object to
the lack of such an instruction, we will
review the decision not to instruct on lesser-
included offenses under a plain-error
standard.

60 A-3551-12T3
 [Ibid. (emphasis added).]

Returning to the facts of this case, the record here is clear

that defense counsel did not request the trial judge not to

instruct the jury on how to consider fresh-complaint testimony.

The trial judge made this decision sua sponte.18 Furthermore,

unlike the position adopted by the prosecutor in Jenkins, here the

prosecutor equally acquiesced to the trial judge's decision. In

this light, even applying a plain error standard of review under

Rule 2:10-2, we are satisfied the trial court's failure to instruct

the jury on how to consider this evidence had the capacity to lead

to an unjust result.

Once a trial court decides to admit fresh-complaint

testimony, it must instruct the jury on how to consider this

evidence. The trial court's failure to charge the jury on fresh-

complaint testimony is sufficient to raise a reasonable doubt as

to the reliability of the verdict. Jenkins, supra, 178 N.J. at

361. Thus, even if we were to conclude that the trial judge did

not abuse his discretionary authority in allowing five witnesses

to provide fresh-complaint testimony, the court's failure to

18
Although not raised by the parties, we are compelled to note
that the trial judge decided, sua sponte, to reverse his pretrial
ruling concerning the nature of this testimony in the course of
conducting the charge conference required by Rule 1:8-7(b).

61 A-3551-12T3
instruct the jury on how to consider this evidence constituted an

independent basis to reverse defendant's conviction.

Analysis of this issue is grounded in State v. Bethune, 121

N.J. 137 (1990), which was also authored by Justice Garabaldi and

released simultaneously with Hill. The analytical framework

established by Justice Garabaldi in Bethune was reaffirmed by the

Court in R.K.:

Only the facts that are minimally necessary
to identify the subject matter of the
complaint should be admitted; the fresh-
complaint testimony is not to be used "to
corroborate the victim's allegations
concerning the crime." [Bethune, supra, 121
N.J.] at 146; see also State v. W.B., 205 N.J.
588, 617 (2011) ("A witness may testify only
to the general nature of the complaint, and
unnecessary details of what happened should
not be repeated."). Therefore, the trial
court is required to charge the jury that
fresh-complaint testimony is not to be
considered as substantive evidence of guilt,
or as bolstering the credibility of the
victim; it may only be considered for the
limited purpose of confirming that a complaint
was made. Bethune, supra, 121 N.J. at 147-
48; State v. P.H., 178 N.J. 378, 393 (2004)
(asserting that Bethune "required" courts to
give limiting instruction).

[R.K., supra, 220 N.J. at 456 (emphasis
added).]

The model jury charge on fresh-complaint testimony the

Supreme Court approved on February 5, 2007, scrupulously adheres

to Bethune's holding:

62 A-3551-12T3
 A fresh-complaint is not evidence that the
sexual offense actually occurred, or that
(name) is credible. It merely
serves to negate any inference that because
of (his/her) assumed silence, the offense did
not occur. It does not strengthen (his/her)
credibility. It does not prove the underlying
truth of the sexual offense. A fresh-
complaint only dispels any negative inference
that might be made from (his/her) assumed
silence.19

On November 18, 2009, the trial judge conducted an N.J.R.E.

104 evidentiary hearing to determine the admissibility of fresh-

complaint testimony from three witnesses the State planned to call

at trial: Joanne's best friend Ana, her former boyfriend Mark, and

her father Marco. At the conclusion of the testimonial part of

the hearing, the prosecutor argued "this evidence is admissible

to . . . negate any inference that the victim remained silent[,]

[a]nd to show the jury that she . . . complained to who[m] you

would expect her to complain[.]"

The prosecutor argued the record developed at the N.J.R.E.

104 hearing satisfied the three principal issues the Supreme Court

identified in Hill: (1) the testimony was not obtained through

coercive measures; (2) the witnesses were Joanne's confidants; and

(3) Joanne came forward and shared her experience with these three

19
Model Jury Charges (Criminal), Fresh Complaint (Feb. 2007),
http://www.judiciary.state.nj.us/criminal/charges/non2c011.pdf.

63 A-3551-12T3
witnesses in a timely fashion. Finally, the prosecutor noted it

was within the trial court's discretion to determine whether the

testimony was unduly duplicative.

In opposing the State's application, defense counsel

emphasized that "the cumulative effect [results] in some level of

corroboration." However, defense counsel expected the prejudice

would be mitigated by the court's instructions to the jury on how

to properly consider this testimony. Defense counsel nevertheless

asked the court to exercise its discretion and reduce the number

of witnesses who would testify in this capacity. The court

rejected defendant's application to reduce the number of witnesses

and ruled that Ana, Mark, and Marco would be allowed to testify

under the fresh-complaint doctrine at trial. Without elaboration,

the judge stated that he did not find these three witnesses to be

"cumulative or inappropriate" under Hill.

Under these circumstances, we conclude the trial judge abused

his discretion when he permitted the State to call five fresh-

complaint witnesses at trial. These five witnesses described

Joanne's demeanor at the time she disclosed the incident. They

were all questioned by the prosecutor in a manner that required

them to elaborate on the steps they took to assist Joanne in

dealing with this traumatic situation. The cumulative effect of

these factors had the capacity to influence the jury's assessment

64 A-3551-12T3
of Joanne's credibility. The judge's failure to provide the jury

with clear instructions on the how to consider this evidence not

only exacerbated this prejudice, but constituted an independent

basis for finding reversible error.

LETTER FROM DEFENSE COUNSEL

On May 14, 2007, the attorney who represented defendant before

the trial court sent a letter to one of the Assistant Prosecutors20

who tried the case. In the prefatory part of the letter, defense

counsel stated:

As you know, this firm represents Dr. James
Mauti with respect to your investigation into
allegations made by [Joanne]. You have asked
that I provide you with information concerning
the medications which were given to [Joanne]
in the course of her treatment by Dr. Mauti.
In this correspondence I will specifically
identify the medications and dosages that were
administered and will also provide you with
information which should be considered by your
office in evaluating the allegations made and
what action against my client you may be
considering.

Let me first say that I understand your duty
to protect the public and to prosecute
wrongdoing where found. I also understand
that it is important to give consideration to
the allegations of an alleged victim and to
conduct such investigation as is necessary to

20
The Assistant Prosecutor named in this letter was one of two
prosecutors who represented the State at trial. We infer she was
the lead prosecutor because she gave the opening statement,
presented the testimony of the complaining witness, represented
the State at the charge conference, and delivered the summation
to the jury.

65 A-3551-12T3
 evaluate the claims of wrongdoing that are
brought to your attention. However, you have
indicated to me that you may very well proceed
to charge my client with criminal offenses
without first seeking an indictment. I ask
that you consider the impact of that action
before settling on that course of action.

Dr. Mauti is a licensed medical doctor whose
reputation in the community and whose license
to practice medicine will be materially
affected by any public charge that you bring
against him, particularly one which is
unsubstantiated and uncorroborated.
Consequently, since allegations of wrongdoing
against him are untrue, I ask that before you
proceed to present any charges that you
consider the background information provided
in the following sections. The facts and
opinions which I will detail herein provide
important, exculpatory information that,
pursuant to State v. Hogan, 144 N.J. 216
(1996), must be presented to the grand jury
before you consider any bringing [sic] charges
against Dr. Mauti.

[(Emphasis added).]

From this point forward, the letter is divided into four

numbered sections, each describing the topic or issue addressed

therein. Section 1 is entitled "[Joanne's] Recent Treatment

History;" Section 2 is entitled "The Known Side-Effects of the

Medications [Joanne] Received;" Section 3 is denoted with the name

of Joanne's older brother, whom we have identified here as Joseph;

and Section 4 is entitled "The Medicines Seized Pursuant to the

Search Warrant." In support of the topic denoted under Section

2, defense counsel offered the opinion of a physician, as well as

66 A-3551-12T3
that of an alleged toxicology expert. Both of these individuals

are credentialed in New York State. Counsel attached copies of

reports authored by these individuals.21 Counsel urged the

Assistant Prosecutor to consider the contents of the two expert

reports, as well as the relevant comments and warnings included

in the Physician's Desk Reference, and argued that "distorted

perceptions of reality are a potential effect of such drugs in

certain patients."

Defense counsel's description of "the medications and

dosages" defendant administered to Joanne is at the heart of one

of the critical issues raised in this appeal. In the interest

of clarity, we will recite the relevant parts of this Section of

the letter verbatim.

Section 1 [Joanne's] Recent Treatment History.

[Joanne] was seen as a patient on November 21,
2006. She was seen for complaints of lower
back pain subsequent to excessive heavy
housework. [Joanne] reported with no
significant past medical history and no known
allergies to medications. After obtaining her
medical history, Dr. Mauti examined her lower
back, which included a neurological
examination, muscle strength testing, range of
motion, and straight leg testing. Dr. Mauti
concluded she was suffering from lower back
strain and spasms. During the office visit,
[Joanne] also complained of signs and symptoms
consistent with rhinitis/sinusitis. Dr. Mauti
treated her back condition with osteopathic

21
Neither one of these experts testified at trial.

67 A-3551-12T3
 manipulation of the lower back and by ordering
Tizanidine (4 mg. by mouth, twice per day),
Ultracet (37 5/325 mg. by mouth, one or two
as needed for pain), Prednisone (40 mg. by
mouth for three days, then gradually decreased
to 30 mg., 20 mg., and 10 mg.), and Tussafed
HCG syrup (liquid) (10 ml. as needed).

The next treatment event occurred on Thanksgiving Day,

Thursday, November 23, 2006. Counsel stated Joanne came to

defendant "complaining of undiminished back pain and continued

rhinitis/sinusitis." Defendant "treated her with a continuation

of her medicines and a TENS application (a portable electronic

stimulation device intended to relieve the spasm by exhausting the

muscle[)]. . . . Treatment for her rhinitis/sinusitis consisted

of her continued use of Tussafed HCG, as needed." Defendant also

gave her a TENS unit "for home use."

Counsel stated that defendant next treated Joanne on November

24, 2006. Her physical complaints were the same: back pain and

rhinitis/sinusitis. Counsel stated defendant provided the same

treatment he had "ordered on November 21, 2006[.]"

According to counsel,

[Joanne] was next seen on November 25, 2006.
On that day, she complained of continued but
severe back pain and spasms. She described
her pain level as 10 out of 10 with pain in
the left lower back, radiating to left
buttocks and left leg. She continued to
complain of rhinitis/sinusitis. On that date,
[Joanne] received Tizanidine (4 mg. by mouth),
Ultracet (37.5/325 mg. by mouth), Prednisone

68 A-3551-12T3
 (20 mg. by mouth), and Tussafed HCG syrup
(liquid) (approximately 10 ml.). Next, hot
wet heat packs were applied every 20 minutes
to her lower back. After approximately one
hour, Dr. Mauti injected 6 cc's of Marcaine
and 2 cc's of Depromedrol into [Joanne's]
lower back (left side) at TAILS, L51S 1. By
the end of her treatment, her pain decreased
to 5 or 6 out of 10. At approximately 4:30
p.m., [Joanne] received Tizanidine (4 mg. by
mouth) and Ultracet (37.5/325 mg. by mouth).

Three years before the start of the trial, the State sought

a judicial declaration that defense counsel's description of the

medical treatment defendant provided to Joanne be admitted as an

adopted admission by defendant under N.J.R.E. 803(b)(3).

Specifically, the State sought to compare and contrast defense

counsel's description of the medications defendant administered

to Joanne with the findings of the forensic analyst reflected in

the March 2007 toxicology report of Joanne's urine.

The prosecutor wanted the jury to find that defendant

purposefully omitted chloral hydrate from the detailed list of

medications defense counsel claimed defendant administered to

Joanne because it revealed a "consciousness of guilt." The

following excerpt from the prosecutor's summation illustrates this

point:

[T]he whole theory in the letter was side
effects that caused . . . hallucination, and
dreaming and he didn't think of the chloral
hydrate that he administered to [Joanne], yet
now all throughout the trial the defense is

69 A-3551-12T3
 the additive effect of the chloral hydrate
caused hallucinations and dreaming.

What does that tell you about his
consciousness of guilt when back in December
[2009] he left it out? He purposefully left
it out. What does that tell you about
credibility?

The May 14th [2009] treatment history
submitted, detailed down to the fact that he
gave her cough syrup, yet no mention of the
potent hypnotic sedative, no indication of
[Joanne] passing out from the injection.

As he did before the trial judge, defendant argues in this

appeal that the State should have been barred from using any

statements of fact contained in defense counsel's letter because

they were made as part of "plea negotiations" under N.J.R.E. 410.

Defendant argues the letter falls within the purview of "plea

negotiations" because it was intended: (1) to dissuade the

prosecutor from pursuing an indictment; and (2) to provide

exculpatory material that counsel believed the prosecutor was

obligated to present to the grand jury under State v. Hogan, 144

N.J. 216 (1996).

On November 18, 2009, the trial court conducted an N.J.R.E.

104 hearing at which the defense attorney who authored the letter

and the Assistant Prosecutor who received it testified. Based on

the evidence presented at this hearing, the trial judge issued a

written opinion in which he made factual findings and explained

70 A-3551-12T3
the legal basis for allowing the State to admit a redacted version

of defense counsel's letter as an adopted admission by defendant

under N.J.R.E. 803(b)(3).

The judge noted that at the time defense counsel sent this

letter to the prosecutor: (1) defendant had not been charged with

a crime; (2) the State did not ask for the letter; (3) the State

had not extended a plea offer to defendant; (4) defendant had not

offered to plead guilty to any particular offense; and (5) defense

counsel wrote the letter "to demand that the State present the

letter and attachments to the grand jury in accordance with [Hogan]

and to convince the State not to charge [d]efendant with any

crime."

With these findings as backdrop, the trial judge noted that

no court in this State has addressed the question of determining

the scope of plea negotiations under N.J.R.E. 410, which provides:

Except as otherwise provided in this rule,
evidence of a plea of guilty which was later
withdrawn, of any statement made in the course
of that plea proceeding, and of any statement
made during plea negotiations when either no
guilty plea resulted or a guilty plea was
later withdrawn, is not admissible in any
civil or criminal proceeding against the
person who made the plea or statement or who
was the subject of the plea negotiations.
However, such a statement is admissible (1)
in any proceeding in which another statement
made in the course of the same plea or plea
discussions has been introduced and the
statement should in fairness be considered

71 A-3551-12T3
 contemporaneously with it, or (2) in a
criminal proceeding for perjury, false
statement, or other similar offense, if the
statement was made by the defendant under
oath, on the record, and in the presence of
counsel.

[(Emphasis added).]

In State v. Brabham, 413 N.J. Super. 196, 198 (App. Div.),

certif. denied, 203 N.J. 440 (2010), we held that inculpatory

statements made by the defendant during a meeting with the

Assistant Prosecutor constituted "plea negotiations" under

N.J.R.E. 410. We expressly relied on the following factual

findings made by the trial court:

[T]he presence of law enforcement officers at
a meeting with defendant did not just happen
but occurred because the meeting was
orchestrated by defendant; defendant wanted to
"run the show" and was "basically
orchestrating what [was] going to happen"; he
said "what he want[ed] to say"; and "[h]e
wanted to orchestrate a deal . . . where
everything was combined."

[Id. at 208.]

We held these facts "do not permit any conclusion other than

that defendant believed he was attending the meeting he wanted to

have -- a meeting to negotiate a global plea agreement resolving

multiple burglaries committed in various counties." Ibid.

(emphasis added). Thus, we employed a fact-sensitive approach in

Brabham to determine whether the defendant's belief that he engaged

72 A-3551-12T3
in plea negotiations was supported by the trial court's factual

findings.

More recently in State v. Williams, 444 N.J. Super. 603, 607

(App. Div. 2016), the prosecutor sought to use a statement the

defendant had given during plea negotiations to impeach her

credibility at trial. We were asked to determine whether a

defendant could waive the protections afforded by N.J.R.E. 410.

Id. at 606. We held a defendant can waive the protections under

N.J.R.E. 410, but remanded for the trial court to determine in a

hearing whether the defendant knowingly and voluntarily "waived

that protection by agreeing her statement could be used against

her at trial." Ibid.

Our analysis in Williams was guided by "'the source rule of

N.J.R.E. 410,' namely the Federal Rule." Id. at 611 (citing State

v. Malik-Ismail, 292 N.J. Super. 590, 597 (App. Div. 1996)). The

question of whether a defendant could waive the protections

afforded by Fed. R. Evid. 410 was answered by the United States

Supreme Court in United States v. Mezzanatto, 513 U.S. 196, 197,

115 S. Ct. 797, 800, 130 L. Ed. 2d 697, 702 (1995). As we

particularly noted in Williams, the Court in Mezzanatto determined

that the "admission of plea statements for impeachment purposes

enhances the truth-seeking function of trials and will result in

more accurate verdicts." Williams, supra, 444 N.J. Super. at 612

73 A-3551-12T3
(quoting Mezzanatto, supra, 513 U.S. at 204, 115 S. Ct. at 803,

130 L. Ed. 2d at 706).

We have not had occasion to consider what constitutes "plea

negotiations" under N.J.R.E. 410 since our decision in Brabham.

In fact, the analytical parameters for determining what

constitutes "plea negotiations" have not been discussed in a

published opinion by any court in the State. Thus, although the

fact-sensitive approach we used in Brabham remains appropriate,

it is not enough to answer the question before us. As the trial

judge did here, we will follow the analytical approach we applied

in Williams and Malik-Ismail and address the matter by reviewing

how the federal courts have dealt with this issue.

In United States v. Edelmann, a jury convicted the defendant

of two counts of mail fraud, 18 U.S.C.A. § 1341; two counts of

wire fraud, 18 U.S.C.A. § 1343; and one count of money laundering,

18 U.S.C.A. § 1957. 458 F.3d 791, 798 (8th Cir. 2006). On appeal,

defendant argued, inter alia, "the district court erred in refusing

to suppress her incriminating statements[.]" Id. at 799. The

Eighth Circuit noted that at the time the defendant made the

incriminating statements "the government had not filed formal

charges against [her], indicted her, filed an information against

her, arraigned her, or instigated a preliminary hearing[.]" Id.

at 804.

74 A-3551-12T3
 Against these facts, the Eighth Circuit noted that "[t]he

plain language of [Rule] 410 excludes 'only those statements which

are made in the course of plea discussions.'" Ibid. (quoting

United States v. Hare, 49 F.3d 447, 450 (8th Cir. 1995)). Thus,

"[s]tatements voluntarily offered either before any plea

negotiation has begun or after a plea agreement has been reached

cannot be considered statements made 'in the course of plea

discussions' within the meaning of the exclusionary rules." Ibid.

(quoting Hare, supra, 49 F.3d at 450).

The Edelmann court reaffirmed its prior decision, which

listed the following factors to consider in determining whether a

statement falls within the scope of plea negotiations under Federal

Rule 410:

(1) no specific plea offer was made;

(2) no deadline to plead was imposed;

(3) no offer to drop specific charges was
made;

(4) no discussion of sentencing guidelines for
the purpose of negotiating a plea occurred --
only generalized discussion to give the
suspect an accurate appraisal of his situation
occurred; and

(5) no defense attorney was retained to assist
in the formal plea bargaining process.

[Ibid. (quoting United States v. Morgan, 91
F.3d 1193, 1196 (8th Cir. 1996)).]

75 A-3551-12T3
 The Fifth Circuit Court of Appeals also provided an approach

to this issue in United States v. Robertson, 582 F.2d 1356, 1366

(5th Cir. 1978). Under this two-tiered approach, a court must

"determine, first, whether the accused exhibited an actual

subjective expectation to negotiate a plea at the time of the

discussion, and, second, whether the accused's expectation was

reasonable given the totality of the objective circumstances."

Ibid.

In Robertson, Drug Enforcement Administration (DEA) agents

arrested defendant, another man, and two women when "various

chemicals and laboratory equipment allegedly used in the

preparation and manufacture of methamphetamine" were found in

their residence. Id. at 1359. Shortly after the arrest, the two

men had a conversation with DEA agents in the parking lot of the

residence in which they "admitted their own complicity in order

to exonerate the women." Id. at 1370.

In an en banc decision, the Fifth Circuit in Robertson held

that "[s]uch a request, without more, does not transform a

confession into a plea negotiation." Id. at 1368. "[The

defendants] did not offer to plead guilty. They did not even

contemplate pleading guilty." Id. at 1370. However, the Fifth

Circuit did not find the absence of an offer to plead guilty to

76 A-3551-12T3
be dispositive in determining whether the defendants' conversation

with the DEA agents constituted plea negotiations.

However, even assuming [a]rguendo, that there
was bargaining and a government concession,
the quintessential [q]uid of a plea
negotiation [q]uid pro quo was missing. The
only concession which [the two men] offered,
and the only concession which the government
received then, was a confession. [The two
men] did not contemplate entering a plea of
guilty in order to obtain the release of the
women. A bargained confession, without more,
is not a plea negotiation. Our emphasis will
be on this aspect of the plea negotiation
process; we focus on what [the two men] were
contemplating conceding during the parking lot
conversation.

[Id. at 1369.]

The Ninth Circuit Court of Appeals has followed the Fifth

Circuit's two-tier approach in Robertson. See, e.g., United States

v. Pantohan, 602 F.2d 855, 857 (9th Cir. 1979) (The defendant's

"statements were not made during plea negotiations" where he was

not under arrest when he made them, there was no promise by the

government "other than to tell the United States Attorney of the

cooperation," and there was no plea offer or plea bargaining.).

The Second Circuit Court of Appeals and district courts within

that circuit have employed a similar analysis. See United States

v. Levy, 578 F.2d 896, 900-01 (2d Cir. 1978); United States v.

Stern, 313 F. Supp. 2d 155, 168 (S.D.N.Y. 2003); United States v.

77 A-3551-12T3
Fronk, 173 F.R.D. 59, 67 (W.D.N.Y. 1997); United States v. Mannino,

551 F. Supp. 13, 18 (S.D.N.Y. 1982).

We are satisfied the two-tier approach followed by the Fifth

Circuit in Robertson is consistent with both the reasonable

expectations inherent in the plain language of N.J.R.E. 410 and

the interest of justice. Here, the trial judge conducted an

N.J.R.E. 104 hearing at which both defense counsel, as the author

of the letter, and the Assistant Prosecutor, as its intended

recipient, testified about their respective expectations. This

approach is consistent with the fact-sensitive nature of the

analysis required to reach a sustainable decision in this type of

case.

Based on the testimonial evidence presented at this N.J.R.E.

104 hearing and the contents of the letter itself, the judge

applied the two-tier approach in Robertson and found defendant had

not met his burden of demonstrating "that this statement was made

in the course of plea negotiation." However, in an implicit

request for guidance from this court, the trial judge alternatively

found "that the State had met its burden of proving that . . .

[defense counsel's] letter was not sent out in the course of plea

negotiation." Thus, by providing an alternative burden-of-proof

analysis, the judge wisely placed the question of which party

should bear the burden of proof squarely before this court.

78 A-3551-12T3
 The trial judge cited United States v. Washington, 614 F.

Supp. 144 (E.D. Pa. 1985), in support of placing the burden on the

State. In Washington, Judge Norma L. Shapiro noted that since

the Fifth Circuit decided Robertson, the definition of "plea

discussions" under Federal Rule 11(e)(6) was broadened to include

"any statement made in the course of plea discussions." Id. at

150. Judge Shapiro thus concluded the government should bear the

burden of proving a statement made by a defendant to a prosecutor

concerning a possible resolution of pending criminal charges falls

outside the inadmissibility protection of Fed. R. Evid. 410.

A rule of presumed inadmissibility in the
absence of an express Government disclaimer
protects defendants whether with or without
counsel from self-incriminating statements
arguably "involuntary" because made in the
misguided belief that they were given in
exchange for possible Government concessions.

[Id. at 151.]

We are persuaded by Judge Shapiro's reasoning that the State

should bear the burden of proving defense counsel's letter did not

constitute plea negotiations under N.J.R.E. 410. Placing the

burden of proof on the State is consistent with our Supreme Court's

long-standing policy favoring plea bargaining. Our Supreme Court

has recognized plea bargaining as an indispensable, long-

established, and ubiquitous means of reaching an honorable and

just resolution of criminal cases. "[T]here is nothing unholy in

79 A-3551-12T3
honest plea bargaining between the prosecutor and defendant and

his attorney in criminal cases. At times, it is decidedly in the

public interest, for otherwise, on occasion the guilty would

probably go free." State v. Taylor, 49 N.J. 440, 455 (1967). "The

prosecutor and defense attorney may engage in discussions relating

to pleas and sentences and shall engage in discussions about such

matters as will promote a fair and expeditious disposition of the

case[.]" R. 3:9-3(a) (emphasis added).

Most recently, the Court reaffirmed its endorsement of plea

bargaining as an indispensable part of our criminal justice system:

Plea bargaining has become an important and
now indispensable commonplace of our criminal
justice system. It "is a legitimate, accepted
practice in the administration of criminal
justice [and the] system rests on the
advantages both sides receive from it; and it
depends on the good faith of both parties in
carrying out the agreement struck—provided it
is reasoned, fair, and approved by the trial
court."

[State v. Hess, 207 N.J. 123, 178 (2011)
(quoting State v. Slater, 198 N.J. 145, 161
(2009)).]

N.J.R.E. 410 declares inadmissible a statement made by

defendant "during plea negotiations when either no guilty plea

resulted or a guilty plea was later withdrawn[.]" In our view,

the inadmissibility protection afforded to a defendant under

N.J.R.E. 410 must include all information of a self-incriminating

80 A-3551-12T3
nature that a defendant provides to law enforcement "during plea

negotiations." These negotiations can only occur in an environment

that facilitates the exchange of information and promotes robust

discussions that lead to a fair and just resolution of criminal

charges, whether formally filed or merely contemplated.

We take judicial notice that most cases that are disposed of

via plea bargaining are the product of direct, unambiguous

negotiations between the prosecutor and defense counsel. R. 3:9-

1(d). However, "plea negotiations" can take place anywhere and

at any time. In fact, because plea negotiations can also take

place between the prosecutor and a self-represented defendant, we

have held that "as a matter of State law, any statement given in

exchange for a prosecutor's promise of sentence during

[uncounseled] plea negotiations on an indictable offense is

inadmissible." State v. Watford, 261 N.J. Super. 151, 153 (App.

Div. 1992).

Although the facts the trial judge found controlling here are

not a common occurrence, they have revealed a fault-line in our

legal landscape which requires our attention. We are satisfied

the trial judge correctly held that defense counsel's May 14, 2007

letter to the prosecutor did not constitute plea negotiations

under N.J.R.E. 410. Consequently, the trial court properly

admitted the letter as an exception to the hearsay rule under

81 A-3551-12T3
N.J.R.E. 803(b)(3), which provides: "A statement offered against

a party which is . . . a statement by a person authorized by the

party to make a statement concerning the subject[.]"

Applying the two-tier approach in Robertson we conclude the

trial judge did not abuse his discretion in admitting a redacted

version of the letter under N.J.R.E. 803(b)(3). The record

supports the judge's finding that defendant did not exhibit "an

actual subjective expectation to negotiate a plea" at the time

defense counsel sent the May 14, 2007 letter to the prosecutor,

thus satisfying the first tier under Robertson, supra, 582 F.2d

at 1366. As the following excerpt from the letter illustrates,

defense counsel's expressed intent was to dissuade the prosecutor

from bringing any criminal charges against defendant:

I ask that before you proceed to present any
charges that you consider the background
information provided in the following
sections. The facts and opinions which I will
detail herein provide important, exculpatory
information that, pursuant to State v. Hogan,
144 N.J. 216 (1996), must be presented to the
grand jury before you consider any bringing
[sic] charges against Dr. Mauti.

The second tier under Robertson required the trial judge to

find that defendant's expectation of confidentiality under

N.J.R.E. 410 "was reasonable given the totality of the objective

circumstances." Ibid. An objective review of the contents of the

letter supports the trial judge's conclusion that defense counsel

82 A-3551-12T3
intended to prevent, not mitigate, criminal prosecution. The

letter presented defendant's treatment history of Joanne to

undermine her credibility and provide a medical basis to question

her recollection of what transpired on November 25, 2006. The two

expert reports attached to the letter were intended to convince

the prosecutor she was legally bound to present this evidence to

the grand jury under Hogan.22

Defense counsel's strategic decision to present this

information to avoid the filing of formal criminal charges carried

with it the inherent risk that any inaccuracy or omission could

be used against defendant. The omission of chloral hydrate from

the detailed and ostensibly complete list of medications defendant

provided to Joanne was properly used by the prosecutor to impeach

defendant's credibility and as substantive evidence under N.J.R.E.

803(b)(3).

We conclude our analysis with the following point of caution

concerning adoptive admissions in the form of statements made by

defense counsel. As much as possible, such adoptive admissions

should be tailored to avoid attributing the statement to defense

22
"In order to perform that vital protective function, the grand
jury cannot be denied access to evidence that is credible,
material, and so clearly exculpatory as to induce a rational grand
juror to conclude that the State has not made out a prima facie
case against the accused." Hogan, supra, 144 N.J. at 236.

83 A-3551-12T3
counsel. While defense counsel in these circumstances will have

communicated the statement, the statement is admitted as an

adoptive admission against the defendant. Thus, the distinction

between defendant and his defense counsel should be protected as

much as possible. In most circumstances, such statements can be

tailored or redacted so that the jury is not informed that the

statement came from defense counsel. Such tailoring is

particularly important when defense counsel remains as counsel

during the trial. Here, for example, if the excerpt from the

letter is used at a re-trial, the letter should be redacted so

that it does not reflect that it came from defense counsel. The

jury can be told simply that the statements in the letter are

attributable to defendant.

VI

SUMMARY AND CONCLUSION

We reverse the trial court's decision to admit into evidence

a towel stained with defendant's semen. Under the circumstances,

the towel should have been excluded as nonverbal conduct under

N.J.R.E. 801(a)(2). The towel was also irrelevant under N.J.R.E.

401 because it was not linked to any specific aspect of the alleged

sexual assault.

We also conclude the trial court erred in permitting the

State to call a total of five witnesses to provide fresh-complaint

84 A-3551-12T3
testimony. The cumulative effect of these witnesses' testimony

had the capacity to unduly bolster the credibility of the

complaining witness. The trial judge compounded this error by

sua sponte deciding at the charge conference not to instruct the

jury on how to consider and apply the fresh-complaint testimony.

Finally, we affirm the trial judge's decision to admit a

letter written by defense counsel as an adopted admission by

defendant under N.J.R.E. 803(b)(3). Consequently, we reject

defendant's argument that the letter should have been excluded as

"plea negotiations" under N.J.R.E. 410. As a matter of first

impression, we adopt the two-tier approach established by the

Fifth Circuit Court of Appeals in Robertson, supra, 582 F.2d at

1366, to determine when communications between a defendant and a

prosecutor falls within the purview of plea negotiations under

N.J.R.E. 410. We also hold the State has the burden of proof when

an inculpatory statement is challenged as inadmissible under

N.J.R.E. 410.

We reverse defendant's conviction and remand the matter for

a new trial. Defendant's remaining arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded. We do not retain jurisdiction.

85 A-3551-12T3