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State v. Cuni6/14/1999
Argued September 29, 1998
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 303 N.J. Super. 584 (1997).
In this case, defendant was convicted of the sexual assault of a mentally defective person. At trial, defendant attempted to introduce evidence of the victim's past sexual experiences through the cross-examination of the State's expert psychologist. The purpose of that evidence, according to defendant, was to demonstrate that the victim had the capacity to consent to sexual relations despite her mental condition. The trial court ruled that defendant could not elicit the evidence.
The issue posed by this appeal is whether, in a sexual assault case in which the State claims the victim lacked the mental capacity to withhold consent to sexual acts, the New Jersey Rape Shield Law, N.J.S.A. 2C:14-7, may be applied to exclude evidence of past sexual conduct that is offered to show that the victim had the mental capacity to consent to sexual contact. If such evidence is excluded, we also address whether that exclusion violates the defendant's constitutional right to confront witnesses.
I.
Defendant, Azem Cuni, was indicted and tried for first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3); second degree sexual assault, contrary to N.J.S.A. 2C:14-2c(1) and (2); third degree burglary, contrary to N.J.S.A. 2C:18-2; and fourth degree criminal trespass, contrary to N.J.S.A. 2C:18-3. At the Conclusion of trial, the jury returned guilty verdicts on all counts. The court thereafter merged the burglary charge and the sexual assault charge under N.J.S.A. 2C:14-2c(1) into the aggravated sexual assault charge, sentenced defendant to an aggregate term of twelve years in prison, and imposed appropriate penalties.
Defendant appealed his convictions. The Appellate Division reversed the convictions for aggravated sexual assault and burglary. 303 N.J. Super. 584 (1997). The court found that the trial court erred by not instructing the jury that, in order to convict defendant of burglary and aggravated sexual assault based on that burglary, defendant had to have entered the victim's house with the intention to engage in sexual penetration without her consent. Id. at 598; 604. Because the failure to so instruct was "capable of producing an unjust result," the court reversed both the aggravated sexual assault and the burglary convictions. Id. at 603-04. The court affirmed the other convictions, finding no reversible error in defendant's remaining contentions. Id. at 610-11. Judge Pressler Dissented on the ground that defendant's two sexual assault convictions should also be reversed because evidence of the victim's two past sexual experiences were excluded under the Rape Shield Law, violating defendant's right to confrontation. Id. at 611-13.
Defendant appealed the Appellate Division's decision as of right based on the Dissent, pursuant to R. 2:2-1(a)(2). Defendant also petitioned for certification on two additional issues. The Court denied that petition. 152 N.J. 12 (1997).
II.
In 1992, the victim, T.O., was thirty years old and lived with her younger sister and mother in a house in Jefferson Township. T.O. had been tested as being in the borderline range for being mentally deficient.
One afternoon in late October 1992, T.O. ordered a sandwich from a local pizzeria for home delivery. Defendant soon thereafter arrived at T.O.'s door with her order. Because T.O. did not possess a key to the locked front door, T.O. opened a window in order to retrieve her sandwich. Defendant bent down and kissed T.O. through the window, using his tongue. T.O. testified t
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