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State v. V.E.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
V.E., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-10-0966.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 14, 2007.

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On October 15, 2003, a Cumberland County Grand Jury charged defendant, V.E., with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One), and second-degree sexual assault,

N.J.S.A. 2C:14-2b (Count Two). Prior to trial, defendant's motions for an in camera review of the victim's psychiatric record was denied on April 23, 2004. That same day, the motion judge conducted a Rape Shield Hearing, N.J.S.A. 2C:14-7a, following which he excluded evidence of the victim's sexual history and her sexually transmitted disease.

On September 21, 2004, prior to jury selection, the trial judge denied defendant's request that he be permitted to attend sidebar conferences during the voir dire process or, alternatively, utilize an electronic listening device which would allow him to hear what was being discussed at sidebar. On September 22, after a Miranda*fn1 hearing, the judge denied defendant's motion to suppress statements he gave to the police. Following a three-day trial, a jury acquitted defendant on the first-count charge but convicted him on the second-count charge of second-degree sexual assault. Defendant's motion for a new trial was denied on November 18, 2004, and on December 17, 2004, the trial judge imposed a six-year term of incarceration with a mandatory 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.

At the time of the offense, J.E., defendant's daughter, was twelve years old and living with her mother, R.E., her three teenage sisters, and defendant in a four-bedroom duplex apartment in Bridgeton. At approximately five or six o'clock on June 4, 2003, J.E. arrived home and noticed a small tick just behind her left knee. She removed the tick and then showered. According to J.E., at no point did she ask either defendant or R.E. to check her further for ticks.

J.E. related that defendant went upstairs and "asked to see the jeans that the tick was on." J.E. showed him the jeans she had been wearing. J.E. was not yet dressed at that point and although she asked defendant to leave, he did not. J.E. then went to the other upstairs bathroom and changed into a bra, underwear, loose-fitting shorts, and a shirt. According to J.E., when she re-entered her bedroom, defendant told her that he needed to check her for ticks to see if there were any more on her "because it would be embarrassing for a doctor to do it, and he would rather do it." Defendant then locked the bedroom door and asked J.E. to lie sideways on her bed with her feet hanging off the side from the knees down.

J.E. stated that defendant knelt down and touched her "vagina area . . . [f]irst with his finger because he said he was feeling around to see if any ticks were in my vagina area, which I knew there were not." J.E. testified that defendant then "put his tongue into [her] vagina area" for ten to twelve seconds. Thereafter, defendant got up and told J.E. that she "was beautiful and [she] was growing up and [she] needed to experience some things. And it was [their] little secret, don't tell anybody."

Meanwhile, R.E. had called defendant from downstairs "a couple of times" and defendant responded by stating that he would "be down there in a minute." J.E. testified that just as defendant was about to leave the bedroom he lifted up her shirt because "[h]e said he wanted to check [her] breasts for ticks." J.E. related that defendant "lifted both the shirt and the bra up . . . [and] kissed both of [her] breasts instead of checking." He then gave her two dollars "and said that he was going to give . . . some more money the next day." Defendant left the bedroom but re-entered after approximately two seconds to tell J.E., "[d]on't tell . . . mom."

J.E. testified that she discussed the incident over the phone with her friend, J.C., who told her "to tell somebody because it could happen again." J.C. knew J.E. for about two years "[t]hrough school and stuff." J.C. confirmed the phone call and testified that J.E. told him that "her father was . . . feeling on her, trying to touch on her . . . [and] I told her to talk to her mother about it." On cross-examination, J.C. stated that he was not sure of the date that J.E. called him,*fn2 and further claimed that J.E. told him that her father "was trying to touch all areas of her body with his hands," and "that she felt he was trying to have sex with her."

On June 5, 2003, J.E. reported the incident to her mother, R.E., who called defendant at his brother's house and asked him about J.E.'s allegations. R.E. testified that J.E. and defendant "had a good relationship. They did everything together. They fished together and if he was down at his brother's, she would ride her bike and go down there where he was at. They had a perfect relationship." R.E. confirmed that on the evening of June 4, 2003, J.E. told both R.E. and defendant that she had removed a tick from her inner thigh, at which point defendant "checked her to make sure that the head or the legs wasn't embedded inside of her skin, like ticks do."

J.E. then went upstairs and took a shower. While R.E. was on the telephone, defendant went upstairs. After about a half hour, R.E. called upstairs for defendant and defendant responded that he would "be down in a minute." R.E. testified that she called twice for her husband.

According to R.E., defendant told her that "he was getting his work clothes out for the next day, and he was getting [J.E.] to iron them. He gave her a couple dollars to iron his pants. And that -- now that I remember that, he was checking her -- the dirty clothes that was in the hamper after she found a tick to see if any ticks was in her clothes." R.E. did not see J.E. for the rest of the evening.

The next day, after J.E. returned from school, she told R.E. "that her dad did something sexual to her, and was [R.E.] going to put him out." R.E. testified that when she asked J.E. to explain what she meant, J.E. did not respond. R.E. called defendant at his brother's house. She was angry and said, "[h]ow could you do something like that to my -- our daughter." She asked him to come home so they could "get everything straight." After waiting approximately an hour to an hour and a half for defendant to arrive home, R.E. called the police.

R.E. talked to defendant a few weeks later. She testified that he told her that he did check J.E. and that "[h]e just said he took . . . the ball of his finger and checked her . . .

[a]round her private area." On cross-examination, R.E. related that she has had Crohn's disease for over ten years, which has left her with a very weak immune system. R.E. also confirmed that she was aware that a tick bite could make her very ill because she had suffered from Lyme disease in the past. According to R.E., after defendant left the house in June 2003, J.E. got into trouble by skipping school, not obeying R.E, staying out past curfew, and sneaking people into the house that R.E. did not approve of. R.E. testified that J.E. "has a problem with authority figure[s]." When asked about J.E.'s ability to tell the truth, R.E. stated that she "caught her [daughter] in some lies, but no more than the normal kid would lie to their parents so they can get away with it."

J.E. conceded that she does not always follow the rules of her house and that she sometimes lies. However, she denied disobeying her mother, skipping school and sneaking people up to her room after her father left the house.

Sergeant James Battavio of the Bridgeton Police Department picked defendant up and transported him to City Hall. After escorting defendant to an investigation room, Battavio read him his Miranda rights. At trial, Battavio identified the Miranda warning card that set forth the warnings read to defendant, the date and time, defendant's signature, Battavio's signature as the advising officer, and the signature of Detective Chris Ward, the witnessing officer.

Detective Ward testified that, after witnessing defendant's waiver of his Miranda rights, he conducted a brief interview with J.E. Following that interview, Ward contacted the Division of Youth and Family Services (DYFS) and advised Battavio that he wanted to talk to defendant. Detective Ward conducted a taped interview with defendant, which was played for the jury during the trial.

According to the taped interview, J.E. "was complaining about a tick" and asked defendant "to check her for any more ticks." Defendant first checked her in the downstairs living room but did not see any ticks. After J.E. went upstairs, defendant looked through her clothes for more ticks. J.E. then "asked [defendant] to check her body again for ticks." According to defendant, he would have much preferred her mother to do it, but she was . . . my wife . . . she's sick [a]nd unable to do it, but . . . she didn't want to get no tick on her. So I proceeded . . . upstairs in the bedroom to look for ticks on her in her private areas.

And so that is what I was doing. I was looking for ticks. She asked me . . . she said it felt like it was up in her crotch area. And that's what I did, I looked and I know she's a female, I looked in her crotch area. I used my hand to look and . . . for ticks around her surrounding areas. And what they said I done with my tongue I did not lick her. I use my finger and I moved her clitoris to look for the ticks in that areas which she could not see for herself without having someone else look their self.

And . . . that's what I . . . I done. And I did not do anything that I think was maybe not appropriate for me being a man, but I did not do anything . . . I wish my wife would have done it herself, because she would have got up and looked for the ticks herself.

Defendant admitted that he "lifted up [J.E.'s] breast to check underneath of her breast for any ticks. Cause I told her, ticks . . . secrete there self [sic] underneath the moisture." Defendant admitted that he told J.E. not to say anything about him checking her for ticks "[b]ecause I thought it was unappropriate [sic] for me to check her. . . . [T]here was the other thing with my other daughter that . . . she had a boyfriend with an infestation of . . . crabs that I had to help them with cause my wife was in the hospital and I had to use that there to help them get rid of the infestation of that there." When asked which daughter he was referring to, defendant stated that he meant J.E.

In response to Ward's question whether defendant gave J.E. two dollars after the incident, defendant claimed that he gave her the money to iron his pants. Defendant also stated that he had a beer and "some liquor . . . maybe not even a shot" just before the incident, but that he "was not drunk."

Ward described defendant as being "very cooperative, talkative. It sounded like he wanted to talk about this whole incident." Although Ward smelled alcohol on defendant's breath, he did not observe anything unusual with defendant's eyes, there was nothing abnormal about the way he walked, and he seemed responsive to the questions that were asked. Ward was of the opinion that defendant was not intoxicated at the time of the interview.

On cross-examination, Ward stated that during his brief interview with J.E., J.E. told him that defendant "was sucking on her breast." When confronted with her statement to Ward and her statement on direct examination that defendant "kissed" her breasts, J.E. claimed that "it was like both."

Defendant presented Daniel Shrader, who was a police officer with the Bridgeton Police Department on June 5, 2003, and interviewed J.E. Shrader testified that J.E. used the words "touching" and "licking" to describe the type of contact defendant had with her breasts. J.E., however, did not remember using those words.

Defendant also elicited testimony from Investigator Heather McManus who was employed by the Cumberland County Prosecutor's Office in 2003 and spoke with J.E. on July 10, 2003. According to McManus, J.E. "stated that she wanted to clear something up that had been said that night. . . . She stated that her mother had told the police the night of the incident that [defendant] had sucked her breasts when he had actually kissed her breasts. And because they were all upset at that time that the terminology got mixed up." On cross-examination, McManus stated that she has investigated hundreds of sexual assault cases and that when victims are brought back "to clarify some issues or facts of the case, there are things that get brought out that might not have been brought out initially because it's so traumatic for someone to go through this."

Investigator Alexis Sheftall from the Cumberland County Prosecutor's Office spoke with J.E. on July 2, 2003. Sheftall stated that when she spoke with J.E., J.E. told her that defendant "gave her $2 to iron a pair of jeans." J.E. could not remember telling this to Investigator Sheftall.

Margaret Chandler also testified on behalf of defendant. She stated that she lives across the street from defendant's family, has known defendant since he was two years old, and has known J.E. since she was born. Chandler related that defendant had a reputation for being a truthful person, while J.E. had a reputation for being untruthful. Rodney Walker, a friend of defendant, testified that he has known defendant his entire life and that defendant is a truthful person.

Finally, J.P., J.E.'s maternal grandfather, testified that J.E. was an untruthful person. He further stated that defendant "really loves his kids and is a good provider for them," as well as a truthful person. At the conclusion of the testimony, the State and defense stipulated "that on October 24th, 2003, [J.E.] visited Dr. Patty Vitale . . . M.D., and during that examination, [J.E.] told Dr. Vitale that [defendant] . . . '[l]ifted my shirt and licked my breasts.'"

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO CONDUCT AN IN CAMERA INSPECTION OF THE ALLEGED VICTIM'S PSYCHIATRIC RECORDS.

POINT II

THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE EXCLUSION OF HIGHLY RELEVANT AND PROBATIVE EVIDENCE DURING CROSS-EXAMINATION OF THE ALLEGED VICTIM.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S EXCLUSION OF DEFENSE EVIDENCE THAT THE ALLEGED VICTIM HAD MADE FALSE ALLEGATIONS AGAINST HER MOTHER.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF SEXUAL ASSAULT. (Not Raised Below.)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN A STATE'S WITNESS RENDERED HIGHLY PREJUDICIAL TESTIMONY BASED ON SPECULATION AND CONJECTURE RATHER THAN PERSONAL OBSERVATIONS.

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT [TO] THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Partially Raised Below.)

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF FRESH COMPLAINT EVIDENCE.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE EXCLUSION OF THE DEFENDANT FROM SIDE BAR DISCUSSIONS DURING JURY VOIR DIRE.

POINT IX

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT X

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD WAIVED HIS MIRANDA RIGHTS.

POINT XI

THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

At the April 2004 pretrial hearing, defendant requested an in camera review of J.E.'s hospital and psychiatric records for a period four or five months after the incident, arguing that J.E.'s credibility was in issue and those records "could also be relevant to her competency to come to [c]court to testify." Defendant conceded that he had no idea what the records would show. The judge denied the request, pointing out that J.E. has an absolute right to privileged information between her and her psychiatrist. There is no question in my mind that the law protects that right and that privilege from that information.

If you were to come forward here and provide some additional information, something else that justified -- that she treated four months later and was hospitalized four months later is just not sufficient in this Court's opinion, not even . . . to the level of an in-camera review.

Her privacy rights would be affected. And unless you come forward with some additional information, I am denying your application for a review of the psychiatric records.

On appeal, defendant again asserts "[t]he purpose of the review was to determine if there was information that would be relevant to J.E.'s credibility and ability to accurately perceive events," in light of the "fundamental contradiction[s] in the accounts of J.E. and R.E." He maintains that "[t]he psychiatric records would have disclosed who was telling the truth."

Defendant correctly points out that neither the physician-patient privilege, N.J.R.E. 506, nor the psychologist-patient privilege, N.J.R.E. 505, is absolute. See State v. L.J.P., 270 N.J. Super. 429, 439 (App. Div. 1994); State v. McBride, 213 N.J. Super. 255, 270 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987). However, "'[t]he party seeking an in camera inspection must advance some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.'" State v. Van Dyke, 361 N.J. Super. 403, 412 (App. Div.) (quoting State v. Harris, 316 N.J. Super. 384, 398 (App. Div. 1998)), certif. denied, 178 N.J. 36 (2003). Nevertheless,

[w]here no statutory or other traditional exceptions to the privilege apply, the court should not order disclosure of therapy records, even for in camera review by the court, without a prima facie showing that the psychologist-patient privilege should be pierced under [the following] tripartite test: (1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source. [Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1997).]

The denial of defendant's request for disclosure of the evidence should be reviewed under an abuse of discretion standard. See State v. Williams, 239 N.J. Super. 620, 626 (App. Div. 1990) (citing State v. Crudup, 176 N.J. Super. 215, 220 (App. Div. 1980)).

The motion judge correctly determined that defendant failed to establish a prima facie showing necessary to pierce either privilege to establish grounds for an in camera review. Indeed, at the motion, defendant conceded that he did not know what treatment was rendered or what the records would show. Defendant failed to establish a legitimate factual predicate for an in camera review. He merely contended that J.E. had been hospitalized four or five months following the incident. He based his request upon intangible general grounds of credibility and unsupported claims of witness competency. J.E. never recanted, cf. L.J.P., supra, 270 N.J. Super. at 441, and her competency was not in issue. Cf. State v. Krivacska, 341 N.J. Super. 1, 35 (App. Div.) (in camera inspection of school records allowed where competency of victims was in issue), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002). Defendant's predicate was no more than "'a desperate grasping at a straw.'" Van Dyke, supra, 361 N.J. Super. at 412 (quoting Harris, supra, 316 N.J. Super. at 398).

At the April motion, defendant sought to introduce evidence that J.E. suffered from a sexually transmitted disease, commonly known as crabs. He argued that "the fact that [J.E.] was sexually active before goes to the fact of her motive to lie because her father was being strict with her." Defendant also maintained that her past sexually transmitted disease was related to his thought process as to why he was checking for ticks. The State pointed out that the defense could ask J.E. whether defendant helped her "with other health issues [she] may have had in the past . . . because health issues is vague enough . . . [so as] not [to] put the thought that it might be sexually related into the minds of the jury." The judge found that her past sexually transmitted disease and prior sexual history were not relevant to the allegations in the case and would invade the victim's privacy rights, contrary to the Rape Shield Law.

On appeal, defendant also asserts that the judge erred in applying the Rape Shield Law because his inquiry was relevant to show that defendant has an "open and involved relationship" with his daughter, and his checking for ticks in J.E.'s "private parts . . . was reasonable and consistent with [his] prior involvement with his daughter's highly personal health life" in light of his wife's non-participation because of Crohn's disease.

The right to confront and cross-examine is "among the minimum essentials of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973); see also State v. P.H., 178 N.J. 378, 389 (2004). Generally, where an examination of the competing interests reveals that its application would severely curtail a defendant's constitutional rights of cross-examination and confrontation, the Rape Shield Law, N.J.S.A. 2C:14-7, must yield. State v. Cuni, 159 N.J. 584, 598 (1999); State v. Budis, 125 N.J. 519, 530-32 (1991); State v. Scherzer, 301 N.J. Super. 363, 417 (App. Div.), certif. denied, 151 N.J. 466 (1997). In deciding whether the right to confrontation should prevail over the exclusionary rule of the Rape Shield Law, a trial court must engage in a two-part analysis and determine whether the evidence is relevant to the defense and, if relevant, whether its probative value outweighs its prejudicial impact. Cuni, supra, 159 N.J. at 600; Budis, supra, 125 N.J. at 532. If the answer to both questions is yes, the evidence may not be excluded under the Rape Shield Law. Ibid. "[O]nly in situations where the relevance and probative worth of . . . sexual experience are clear and substantial should the Rape Shield Law bend to the confrontation rights of the defendant." Cuni, supra, 159 N.J. at 608.

Evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here, the issue focused on defendant's intent, whether his physical contact was for health examination purposes or sexual gratification. Whether or not he had previous involvement with J.E. over health issues could be established without going into the specific nature of J.E.'s prior sex related health problems. Defendant's insistence on introducing J.E.'s sexually transmitted disease rather than general health considerations made it clear that the defense's efforts were aimed at diverting the jury's attention from defendant's behavior to that of the victim. See Budis, supra, 125 N.J. at 534. The judge correctly found that inquiry into J.E.'s sexually transmitted disease was not relevant. Beyond that, the prejudicial impact of such evidence far outweighed any minimal relevancy it might have had.

Defendant next contends that the trial judge violated his due process rights by excluding evidence that J.E. had made false criminal allegations in the past against her mother for assault, without conducting a hearing. During cross-examination of R.E., defense counsel asked: "When was it that [J.E.] tried to file a complaint against you with the Bridgeton Police?" A sidebar conference was held and defense counsel explained that it was his understanding that J.E. filed a complaint against her mother for assault, "lied to the police about what had happened, and that's what I want to get into." Defense counsel argued that the question "goes to her credibility and the fact that she . . . tried to make complaints to use the system against the parents based on her activity that she wants to continue to do without supervision." The trial court would not allow the question, holding:

I think you're violating [N.J.R.E.] 608 . . . when you start going into . . . specific acts or instances to try to prove . . . credibility.

It may not be within the rape shield . . . because it's not a sexual assault charge. But you still have to comply with the other limitations on attacking credibility or character for specific instances of conduct. That's different than saying that she had some kind of behavioral change. And in an effort to afford that to you, I gave you considerable latitude . . . in exploring that.

At the time of trial, N.J.R.E. 608 precluded attacking a witness by introducing evidence of a witness's untruthful character "by specific instances of conduct." In State v. Guenther, 181 N.J. 129, 156 (2004), the Court carved out an exception to the proscription against prior false accusations evidence in (1) "a criminal case that involves the impeachment of a victim-witness whose credibility was the central issue in the case," and (2) cases where "proof of the false accusation [does not] become such a diversion that it overshadows the trial of the charges itself." In deciding whether to allow impeachment of a victim-witness for making false accusations, a trial judge is to initially conduct an admissibility hearing under N.J.R.E. 104, and determine "by a preponderance of the evidence whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false." Guenther, supra, 181 N.J. at 157. The judge must then consider the following five factors when "deciding the issue of admissibility:"

1. whether the credibility of the victim-witness is the central issue in the case;

2. the similarity of the prior false criminal accusation to the crime charged;

3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;

4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and

5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time.

[Ibid.]

Upon determining that the evidence is admissible, the judge may limit "the number of witnesses" and "must ensure that testimony on the subject does not become a second trial, eclipsing the trial of the crimes charged." Ibid.

Although the trial judge erred in failing to conduct an admissibility hearing as required by Guenther, we are satisfied that the error was not "clearly capable of producing an unjust result" and, thus, was harmless beyond a reasonable doubt. R. 2:10-2; State v. Macon, 57 N.J. 325, 338 (1971). Defendant was acquitted of the first count charge of knowingly committing "an act of sexual penetration up[on] J.E." (emphasis omitted). Defendant consistently denied penetration, as charged in the first count, despite J.E.'s allegations to the contrary. Although J.E.'s credibility was a central issue in the first-degree offense, the jury's acquittal of defendant renders any error harmless.

J.E.'s credibility was not a central issue in the second-count charge of "knowingly . . . commit[ting] an act of sexual contact with J.E. . . . for the purpose of sexually arousing or sexually gratifying himself or to humiliate or degrade J.E." (emphasis omitted). Defendant admitted having contact with J.E.'s vaginal area and breasts. Although convicted of the second-degree offense, the central issue was defendant's intent, rather than J.E.'s credibility. Therefore, any evidence of J.E.'s prior false accusation against her mother was not admissible regarding the second-count charge.

Defendant next contends, for the first time on appeal, that the judge committed plain error when he re-instructed the jury, pursuant to its request, on the law of sexual assault. Defendant asserts that the judge's re-instruction, which mirrored the model jury charge, was inadequate to explain defendant's contention that "if [his] intent was to look for ticks through his actions, they had an obligation to acquit him, even if his daughter was humiliated by those actions." During deliberations, the jury requested that the trial judge "clarify and state the criteria that need to be met in order to satisfy the [c]harge of sexual assault." The judge then instructed the jury, as he had done earlier, as to the essential elements which are set forth in the model jury charge.

In the context of a jury charge, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)). The charge must be taken as a whole and the alleged error should not be viewed in isolation. Ibid. "[A]ny finding of plain error depends on an evaluation of the overall strength of the State's case." Ibid. At no time did defendant object to the charge. See Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996) ("The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion.").

Defendant relies heavily on State v. Concepcion, 111 N.J. 373 (1988). He correctly points out that "it is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime. . . . Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Id. at 379. A charge should "provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" Ibid. (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "When a jury requests clarification, the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). However, "[a]n instruction that is appropriate in one case may not be sufficient for another case." Concepcion, supra, 111 N.J. at 379.

Here, contrary to defendant's contention, the judge's reliance on the model jury charge did not mislead or confuse the jury and, thus, did not amount to plain error. Unlike the charge in Concepcion, the instructions here did not focus on the law and facts as presented by the State without relating the alternative different factual contentions of defendant. Moreover, "the facts were not so complex or confusing as to require an intricate discussion in the charge." State v. Morton, 155 N.J. 383, 422 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, l49 L.Ed. 2d 306 (2001); see also State v. Maldonado, 137 N.J. 536, 576 (1994) ("[W]hen a discrepancy exists in the facts both the State and the defendant are entitled to a charge that is consistent with its version of the facts.").

We are satisfied that the jury charge adequately and clearly conveyed the elements of the offense to be proven by the State beyond a reasonable doubt and gave the jury full latitude to apply the law to the facts as they found them. See Maldonado, supra, 137 N.J. at 577-78. Moreover, the jury's question was "direct and simple to answer," and it was proper for the trial court to "simply repeat the appropriate portion of the instructions." State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994); cf. State v. Savage, 172 N.J. 374, 393-95 (2002). We see no reason to intervene.

During direct examination of R.E., the State asked whether she would have checked J.E. for ticks if defendant had asked her to. R.E. responded, "Yes." Defense counsel objected and the trial court sustained the objection "because it is speculative" and directed the jury to disregard the answer and not consider it as evidence. The State then asked R.E., "But you would have checked [J.E.]?" and R.E. responded, "Yes." Despite defense counsel's objection, the judge allowed the question because "[i]t was a different question . . . . It was generalized, 'Would you have checked her for ticks?' I'll allow her to answer it."

On appeal, defendant contends that the question was improper, calling for speculation and conjecture, and thus reversible error. We disagree. In our view, under N.J.R.E. 701, a mother is competent to give a lay opinion as to how she would react to the medical needs of a daughter. Moreover, defendant's statement to the police that R.E. "would not get up to check" J.E., that she "was . . . sick [a]nd unable to do it," and "didn't want to get no tick on her" implied that he was the only person who could check J.E. for ticks because R.E.'s illness prevented her from doing so. As such, even if otherwise inadmissible, the evidence was appropriate to rebut defendant's assertion that R.E. would not check J.E. for ticks due to her compromised immune system. See State v. James, 144 N.J. 538, 554 (1996). Consequently, the trial judge's allowance of the challenged evidence over defendant's objection was not an abuse of discretion.

Defendant next asserts that the prosecutor's closing arguments, which were not objected to, amount to plain error warranting reversal. The applicable principles are well settled. In reviewing alleged prosecutorial misconduct, we consider: (1) whether defense counsel objected in a timely and proper fashion to the remarks; (2) whether the offending remarks were withdrawn promptly; and (3) whether the court gave the jury curative instructions. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Where, as here, the defendant's lawyer fails to object at trial, we may legitimately infer that counsel did not consider the remarks to be inappropriate or prejudicial. State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993). When prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with "whether the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993).

A prosecutor may make comments on the evidence and the inferences that may reasonably be drawn from the proofs. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 156 N.J. 122, 194 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001); State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Farrell, 61 N.J. 99, 103 (1972); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). It is inappropriate, however, for a prosecutor "'to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant,'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. 1980)), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993), or to refer to matters that are not fairly supported by the evidence. State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350 (1953). However, in evaluating a claim of error, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. Setzer, supra, 268 N.J. Super. at 565. It is not unusual to find that criminal cases are tried with some degree of emotion. "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 510-11.

Within this analytical framework, we address defendant's contentions. Defendant asserts that the prosecutor's suggestion to the jury, when responding to defendant's argument concerning J.E.'s motive to lie, that the jury "will see the truth" if it would "see through the smoke that the [d]efendant has put up in front of [it]," amounted to an improper "disparaging" comment. Defendant also maintains that the following remark by the prosecutor improperly interjected his own personal belief about defendant's credibility.

The defendant tells you that when [J.E.] comes back to the room, he locks the door. Again, he wants secrecy. He goes well, I -- I'm worried about the neighbor[hood] kids. I don't even believe that's a believable lie.

The prosecutor's reference to smoke was not a "disparaging" comment, rather, it was an isolated, brief comment that sought to challenge defendant's attempts to attack J.E.'s credibility. See Timmendequas, supra, 161 N.J. at 589-90 (prosecutor's use of phrase "when the smoke clears" not improper because it asked jury to consider the timing of evidence production and credibility of the evidence). Similarly, the comment concerning the veracity of defendant's reason for locking the door did not rise to a personal opinion of defendant's guilt. The comment was directed at the believability and reasonableness of defendant's explanation for locking the door.

Lastly, defendant challenges the following statement by the prosecutor as improperly suggesting that defendant had an obligation to corroborate his account with other witnesses:

This concerned, caring parent who would not ask his wife to check their 12-year old daughter for ticks, that would not ask his two older daughters to check their sister for ticks, what does he do when he leaves? On his taped statement, he says, I go and I ask one of my other daughters to iron my pants. Can't bother the other daughter to check their younger sister's vagina for ticks but got no problem with going after her to iron some pants. Does that make sense? No.

Did anybody, besides the Defendant on his taped statement, say anything like that?

No. Nobody did. You didn't hear anybody else say, he asked me to check. No testimony about that.

Defendant did not object to the comment during closing arguments. Instead, he moved for a mistrial following summations, asserting that the comment concerning the lack of other witnesses was improper. Denying defendant's motion, the judge found that the comment was "limited in extent" and that he could remedy any prejudicial impact with a curative instruction. The judge gave the following instruction to the jury:

The Defendant on trial is presumed to be innocent and unless each and every essential element of an offense charged is proved beyond a reasonable doubt, the Defendant must be found not guilty of that charge. The burden of proving each element of a charge beyond a reasonable doubt rests upon the State and that burden never shifts to the Defendant. The Defendant in a criminal case has no[] obligation or duty to prove his innocence or offer any proof relating to his innocence.

In that regard I note that there may have been a comment . . . by the Prosecutor during the latter stages of his Closing Argument regarding whether . . . or not the Defendant failed to produce certain evidence. The Defendant was not under a burden to produce any evidence in this case. Or under a burden to produce witnesses or testimony. (emphasis added).

We conclude that the judge's instructions were adequate to ameliorate any significant prejudice. See Marshall, supra, 123 N.J. at 161. There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. See State v. Manley, 54 N.J. 259, 270 (1969); see also State v. Reddish, 181 N.J. 553, 644 (2004); State v. Papasavvas, 163 N.J. 565, 614 (2000). We conclude that under those circumstances the State's remarks did not deprive defendant of a fair trial.

Defendant next asserts that the judge erred in permitting fresh complaint evidence because the person J.E. complained to, J.C., was not someone she would ordinarily turn to for support. Defendant does not dispute either the spontaneity or voluntariness of J.E.'s complaint or whether it was made within a reasonable time. After hearing the evidence and considering argument on the issue, the judge made the following findings:

[A]fter hearing [J.C.'s] testimony that [J.E.] had some kind of an ongoing friendship with him for approximately two years prior to the incident; that they had discussed personal matters in the past and she had engaged in a course of discussing with him problems with her dad. This is the person that she reached out to.

He indicated that on other occasions she had called him on the phone to discuss matters that -- that someone of the age then, 12 years old, two years is a relatively long relationship in terms of a friendship. I'm going to permit them to be used for the limited purpose of a fresh complaint here in this matter.

Defendant's assertion that the evidence did not sufficiently establish that J.C. was a person J.E. would ordinarily turn to is belied by the record. J.E. referred to J.C. as "[o]ne of [her] friends." J.C. also indicated that he would consider himself J.E.'s friend. As of the time of the incident, they had known each other for approximately two years. The two became friends through school and due to the fact that J.E.'s uncle lived next door to J.C. According to J.C., J.E. would "be outside and we would have conversations." Although J.C. stated that J.E. did not discuss "personal matters" with him, he did testify that "[s]he had told [him] a couple times that her and her father didn't get along that very well." Indeed, J.C. responded "[y]es" when asked by the judge, "did it seem as though if there was a problem that she would tell you about it?"

The above testimony demonstrated that J.E. and J.C. had a sufficiently close relationship to reasonably conclude that J.E. would turn to J.C. for support and, in fact, had done so in the past. See, e.g., Scherzer, supra, 301 N.J. Super. at 419-20 (a friend of seventeen-year-old mentally retarded victim was permitted to testify about fresh complaint); State v. Kozarski, 143 N.J. Super. 12, 17 (App. Div.) (victim had made fresh complaint to friend and playmate within a day or two of the alleged sexual assault), certif. denied, 71 N.J. 532 (1976). The factual record supports the judge's findings. There was no error.

Next, defendant asserts that he was denied due process by the judge's refusal to allow him to attend sidebar discussions or utilize an electronic hearing device during jury voir dire. The judge ruled:

I don't think that's the accepted custom. I think there are a whole host of issues that would create in terms of security issues, potential Jury intimidation, et cetera. So I'm not going to permit him to be physically present during Voir Dire sidebars for Jury Selection purposes.

With respect to the issue of an electronic hearing device, again, I don't think that's the normal practice in this County. Or typical. I will allow [defense counsel] sufficient time so that he can explain to [defendant] the sum and substance of what the Juror indicates during Voir Dire, particularly in the instance if the Juror is not stricken for cause or excused by the Court and would still be on the . . . Panel at that point so that his client can participate in discussions -- meaningful discussions with regard to the use of peremptory challenges.

That may slow the process down somewhat. We'll have to live with that.

Criminal defendants have the right to confront witnesses against them, which includes the right of presence at every stage of their own trials. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. R. 3:16(b) provides "[t]he defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule." Subsequent to defendant's conviction and sentencing, our Supreme Court rendered its opinion in State v. W.A., 184 N.J. 45 (2005):

If a defendant seeks to be present at sidebar during voir dire he should be accommodated as far as security will allow. That means . . . that unless safety is an issue (in which case the judge should clearly state his or her concerns for the record), a defendant should be physically present at sidebar. In the event that safety issues militate against a defendant's physical presence at a voir dire sidebar, other methods should be employed to guarantee his meaningful participation in the jury selection process [such as a wireless listening device or close-circuit television]. . . .

Another possibility to ensure the defendant's presence and the safety of potential jurors would be a modified use of the struck-jury system. In a struck-jury system, a defendant can remain in his seat during individual voir dire because all but one potential juror would be outside the courtroom. . . .

If all of those methods are unavailable (for example, when there are legitimate security concerns, no electronic means are immediately accessible, and the juror is unwilling to speak in open court), the judge may resort to the lawyer-shuttle system. [Id. at 60-61 (internal citations omitted).]

Recently, the Court decided that W.A. should only be applied prospectively and had no retroactive application. State v. Colbert, ___ N.J. ___ (2007) (slip op. at 12). In Colbert, the judge denied the defendant's request to be present at sidebar, instead directing the defendant's counsel to engage in the lawyer-shuttle system.*fn3 Id. at 2. On appeal, the "defendant argued that, under W.A., the lawyer-shuttle system was inadequate to preserve his right to be present at sidebar conferences." Id. at 7. Noting that W.A. should not be applied retroactively, the New Jersey Supreme Court held:

[S]o long as a defendant who was tried prior to W.A. was afforded an effective opportunity to participate in voir dire (albeit not in strict conformity with the hierarchical procedure set forth in W.A.), his constitutional right of presence was not impaired.

By that measure, we are satisfied that defendant received his constitutional entitlement. He had an unobstructed view of the prospective jurors; consulted with his lawyer after each sidebar; admitted that he was "very actively involved in jury selection," that "not a single juror was selected here without [his] input;" that "he himself chose certain jurors to be selected off the panel or requested other jurors to stay;" and, most importantly, to this day has never asserted that he did not know or understand the substance of what had occurred at sidebar. In other words, defendant was as fully present during voir dire as the Constitution requires and no error occurred. [Id. at 13 (second alteration in original).]

The record reflects that the court waited for defense counsel to consult with defendant when certain jurors were not excused for cause. Like the defendant in Colbert, defendant was given an effective opportunity to participate in voir dire through a lawyer-shuttle system and be "fully present during voir dire" and his constitutional "right of presence" was not violated. Ibid.

Moreover, fifteen out of the thirty-eight potential jurors seated during jury selection participated in a sidebar conference. Of those fifteen, eleven were excused by the court for cause, one was the subject of a peremptory challenge by the State, and the remaining three were peremptorily challenged by defendant, who did not exhaust his peremptory challenges. "[A] defendant's absence from the sidebar examination of a juror who does not deliberate in the case is necessarily harmless." W.A., supra, 184 N.J. at 64. Consequently, under those circumstances, we need not intervene and the failure to follow W.A. was harmless.

Defendant's Point IX and X contentions, that the verdict was against the weight of the evidence and the State failed to prove beyond a reasonable doubt that he voluntarily and knowingly waived his Miranda rights, lack sufficient merit to warrant a further detailed discussion in a written opinion. R. 2:11-3(e)(2). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The judge rendered his factual findings at the Miranda hearing after listening to the taped recording of defendant's statement and crediting the testimony of Sergeant Battavio and Detective Ward that defendant did not exhibit signs of intoxication. He found the testimony from defendant and his brother that defendant was intoxicated not candid or credible. The judge's credibility findings are entitled to our deference. See State v. Locurto, 157 N.J. 463, 474-75 (1999). So too, there was sufficient credible evidence presented in the record to support his findings that defendant was not so intoxicated or under the influence of alcohol that he could not understand and voluntarily waive his Miranda rights. See State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); see also Locurto, supra, 157 N.J. at 474-75; State v. Johnson, 42 N.J. 146, 162 (1964). We perceive no sound basis to disturb the result reached.

At sentencing, the judge found the need to deter defendant and others from violating the law as an aggravating factor, N.J.S.A. 2C:44-1a(9). As mitigating factors, the judge found that defendant had no prior criminal activity, N.J.S.A. 2C:44-1b(7), and that his incarceration would place a hardship upon his family in light of R.E.'s illness, N.J.S.A. 2C:44-1b(11). The judge concluded that "the mitigating factors slightly outweigh[ed] the aggravating factors . . . [b]ut there is a strong presumption of incarceration applicable to a second-degree crime. And it has not been overcome."

Defendant asserts that the six-year sentence was excessive, that the judge abused his discretion in weighing the aggravating and mitigating factors, and he should have received a probationary or the minimum five-year term. After a full consideration of defendant's contention and supporting argument, we are satisfied that the sentence imposed was not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.


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