Evidence Of Other Man's Semen Admissible In Sexual Assault Case

Bobby Perry was found guilty of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)). He was sentenced to 8 years with an 85% parole ineligibility period under the No Early Release Act (N.E.R.A., N.J.S.A. 2C:43-7.2(a)) for the aggravated sexual assault and 4 years imprisonment for the aggravated assault. Additionally, Megan's Law (N.J.S.A. 2C:7-1 to -23) was applicable and Perry was sentenced to parole supervision for life. Perry and the victim were drinking together at his residence when he became angry with her and punched her in the mouth and told her to "sit on him". One of the Defendant's roommates returned from a party and he let the victim go. The victim said nothing while the roommate was in the room for some time. After the roommate left the room, the Defendant took the victim downstairs and tried to anally penetrate her, which she resisted, then performed oral sex on her before again trying to orally penetrate her. After this activity, the two returned to a room in the house and sat silently looking at her for some time. The Defendant then asked the victim what she was going to say happened to her face and she agreed to say that someone else had injured her. The victim later went to Maplewood Police Department, accompanied by her ex-boyfriend Mr. Wilkins, and Sergeant Guglielmo, upon seeing her injuries, called for an ambulance. At the hospital, Detective Fuentes of the Union Township Police Department met with the victim to give a statement. On the way to the police station, the victim showed Detective Fuentes where the attack occurred and identified Perry in a photo array. Officers appeared at the residence with a warrant and used a UV light to search for signs of bodily fluids or evidence of clean-up efforts but found nothing in the basement or bathroom and on a later date, the porch where only a small amount of blood was found on the back of a chair. The blood was later matched to the victim and semen was found in her clothing, however, no DNA found matched the Defendant. The Union County Superior Court Judge hearing State v. Perry denied Defendant's application to admit DNA evidence of another man's semen under the Rape Shield Law (N.J.S.A. 2C:14-7) finding that the presence of another man's semen had no bearing on whether consent was given to the Defendant and found the probative value of the evidence was outweighed by the prejudice referencing State v. Ryan, 157 N.J. Super. 121 (App. Div. 1978). Perry appealed on the basis that the evidence of other semen could indicate the possibility that the victim claimed she was raped to appease Wilkins, with whom she was in an on again, off again relationship. The Rape Shield Law was intended to protect the privacy of the victim while also ensuring defendants receive a fair trial. State v. Garron, 177 N.J. 147 (2003) State v. Budis, 125 N.J. 519 (1991) explained that the Rape Shield Law permits prior sexual history to prove another individual is the source of the semen or to negate force. The NJ Appellate Division determined the evidence of another man's semen in the victims clothes was necessary to put on a full defense as required under State v. Cotto, 182 N.J. 316 (2005). The probative value of the evidence, presented for the limited purpose of proving the victim was assaulted by Wilkins and lied to the police about who assaulted her, outweighed the potential prejudice. The appellate division reversed Perry's conviction and remanded the matter with the instruction that, should the evidence of another's semen be again proffered in the case, the trial court conduct a N.J.R.E. 104 hearing to determine admissibility of the evidence. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's, evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Improper Use Of DNA Evidence Is Reversible Error NJ

Dow was convicted of murder (N.J.S.A. 2C:11-3a(1)-(2)) and possession of a firearm with the unlawful purpose of using it against the person or property of another (N.J.S.A. 2C:39-4a) for shooting and killing her former lover, William Michael Seidle. The victim was shot 3 times in the home he had shared with the defendant. The police recovered no evidence of a murder weapon or any other incriminating evidence when after a search of defendant's residence and storage unit. Another woman Seidle had been seeing received 2 voice messages from a woman with a deep voice and English accent instructing her to leave Seidle alone. Neighbors testified defendant was outside Seidle's home on the morning he was killed and her car was in the driveway the night before. Defendant was suspected of faxing 2 disparaging letters to Seidle's employer within the days leading up to the murder and was identified by the clerk in the printing store from which the faxes were sent. The day after Seidle's death was reported in the news, defendant attempted suicide leaving a lengthy note indicating her suicide attempt was on that date as it was the anniversary of her daughter's death, implicating her former lover in arranging to have Seidle "fixed", accusing Seidle of beating her regularly and failing to indicate knowledge of Seidle's death but he testified to the contrary on behalf of the State. The State used a DNA expert to explain that comparing DNA to DNA found in evidence can either include or exclude them as present or determine them to be the source of the DNA and tying this into a cut on defendant's nose not seen before Seidle's death. The State's expert did acknowledge that the mixture of DNA did not mean that all of the DNA on the fabric was placed there at the same time and defendant had lived with Seidle for some time prior to their break-up just before his murder. In State v. Dow, the NJ appellate court reversed the conviction and remanded for a new trial after finding that the prosecutor's use of the DNA evidence was knowingly mischaracterized and the admission of the defendant's suicide note without adequate evaluation of her statement that the suicide attempt, on the anniversary of her daughter's death, was in any way related to guilt or avoidance of prosecution. If you are facing criminal charges, there may be multiple defenses you have and the prosecution will make every effort to utilize any piece of evidence against you. It is critical that you obtain an experienced criminal defense attorney to represent you immediately. For more information about weapons possession or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Supreme Court Ruling Expands DNA Use In Criminal Cases

DNA obtained by police during arrest for assault charges is not illegal search and seizure and may be used to convict defendant of rape charges. The defendant, in Maryland v. King, was arrested for first and second degree assault charges in 2009 and as a standard part of their booking process, police in Maryland took a DNA sample by way of buccal swab from defendant's cheek. The DNA matched an unsolved rape from 2003 and defendant was charged with the rape. Defendant sought to have the DNA match suppressed as a violation of his fourth Amendment rights against unreasonable search and seizure. Suppression was denied on the basis that a buccal swab from the cheek is an non-intrusive part of the identification process undertaken during booking and is akin to photographing and fingerprinting. Law enforcement has a massive database of DNA evidence. There is likely to be widespread expansion of this practice following the court's decision in King. Justice Antonin Scalia provided a lengthy dissent to the opinion which includes the warning that the decision of the Supreme Court in King will lead to the taking of DNA and entry thereof "into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. Many states already use methods of DNA collection which go well beyond those in King, including: (1) requesting DNA from uncharged suspects or witnesses to 'allow them to prove their innocence'; (2) implicating those who have DNA matches similar to DNA found at a crime scene in order to see if they will provide information about a family member's actual participation; (3) obtaining DNA samples from going through a person's trash; and (4) filing felony charges to get defendants to trade DNA for a 'lesser sentence' as part of a negotiated plea. In the event you are arrested, it is critical that your rights are upheld throughout the police investigation and procedures. If you have been charged with robbery, burglary, gun or other weapons charges, drug distribution or possession, rape of other sex crimes, conspiracy or any other criminal offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession, distribution or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.