July 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-08-01574.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2007
Before Judges Lintner, S.L. Reisner and Seltzer.
Tried to a jury, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). The judge merged counts two and three into count one and imposed a sixteen-year custodial term subject to the parole ineligibility period required by N.J.S.A. 2C:43-7.2a and the mandatory extended parole supervision required by N.J.S.A. 2C:43-7.2c. Appropriate monetary penalties were also imposed. Defendant appeals from the convictions and from the sentence imposed; the State cross-appeals from the merger of count three into count one. We affirm defendant's conviction but remand for resentence.
The State produced testimony from H.M. that, at the time of the incident involved, she lived in a one bedroom apartment with her then five-year-old daughter, C.M., who had been born on December 4, 1997. H.M. slept on a bed in the living room and C.M. slept in the bedroom. Defendant and H.M. met over the internet in December 2002. The relationship progressed to a point that defendant visited with H.M. on March 11, 2003, and lived in the apartment with H.M. and C.M. from that date through April 23, 2003. H.M. planned to move from New Jersey with her daughter to Alabama where she intended to live with defendant and his parents. Nevertheless, defendant was not left alone with C.M. until March 23, 2003. On that occasion, H.M. had been invited to a birthday party for a friend's husband and defendant agreed to stay with C.M., who could not attend because alcoholic beverages were being served.
For reasons not relevant to this appeal, on May 15, 2003, plaintiff drove to the Keansburg Police Station. She was accompanied by her friend Ruth*fn1 and C.M. Ruth and C.M. remained in the car while H.M. went into the police station. When she returned, H.M. ultimately testified, Ruth "slipped me a piece of paper and it said, [defendant] did something to [C.M.]." The matter was not pursued until they arrived at H.M.'s house. C.M. described what happened in the following testimony:
Q: Tell me what happened in your house after you got back in from talking to Ruth.
A: After we went inside, Ruthie told [C.M.] that she needed to tell me what she told Ruthie. And at first she really didn't say a lot. She just said that he kissed her on the mouth. And that he stuck his fingers in her private.
Q: Okay. Now, did she know her body parts at that time, if you know?
Q: Okay. What did she refer to her vaginal area?
A: Her private.
Q: Did she use that term when she spoke?
A: Sometimes she'd say her private, sometimes she'd say her peeshy. Depended on her.
Q: Those were her two words for it, for that area?
Q: All right, now did she say this in front of Ruth?
Q: What was your reaction to that?
A: I was very upset.
Q: How was [C.M.]?
A: She was crying.
Q: Crying. Now, do you know if Ruth stayed, what happened with Ruth?
A: She had left approximately 20 minutes after all that took place.
Q: Okay. When she left, did you further speak to your daughter about what had happened?
A: Yes, I did.
Q: Could you tell us what your conversation was with her?
A: I asked her, I said, . . . where were you and what were you doing, and she said, we were laying on the bed watching movie. And he leaned over and kissed me. And pulled down my underwear and stuck his fingers in my private.
Q: Now, was that more detail than you expected? Was that more detail than the first time in front of Ruth?
A: Yes, it was.
H.M. reported the conversation to the police department on May 16, 2003, and on May 17, 2003, brought C.M. to the prosecutor's office where a video-taped interview was conducted. That interview was played before the jury and admitted into evidence. Ruth testified and described the events which led to C.M.'s revelation to her and reported C.M. saying that defendant had "kissed me on the lips" and "touche[d] her in her privates." C.M. also testified. Although the testimony was halting, she ultimately testified that on the day of the party attended by H.M., defendant touched her "in the private."
Defendant produced Sergeant Dennis Valle, the first officer to receive H.M.'s complaint. Valle testified that information given to him by H.M. initially did not include details that she provided at trial respecting a conversation she claimed to have had with defendant. He also contradicted her assertion that the police had advised her to seek medical attention for C.M. On cross-examination, Valle was asked, "did [H.M.] tell you that her daughter didn't tell about what happened because . . . [defendant] had told her that if she told her mommy anything, he would hurt her?" After an objection was overruled, Valle confirmed that H.M. had, in fact, reported this to him.
Defendant also sought to produce testimony from Ronald Talley. The jury had learned that H.M.'s mother was adamantly opposed to H.M.'s plan to move to Alabama and had obtained an order temporarily restraining H.M. from taking C.M. with her. Defendant proffered that Talley would testify to a conversation with H.M. in which H.M. denied Talley's assertion that H.M. had "set up" defendant but added, "that was my mother's doing." Nevertheless, at a N.J.R.E. 104(a) hearing conducted to confirm the proffer, Talley was asked "Did you have a conversation with [H.M.] on the streets of Keansburg where you said to her, I hear you set up [defendant]?" to which he responded, "No." He indicated further that "I'm not going to incriminate myself," apparently because the conversation with H.M. was drug related. Given that answer and several other unsuccessful attempts to pursue the subject, the court refused to permit further questioning.
Later that day, defendant requested that the hearing be reconvened and Talley be recalled. The basis for the request is not clear in the record. Counsel advised the judge that "I knew that Mr. Talley was going to need to speak to [his attorney] regarding this. He says that he, what I told you he was going to say, he (Inaudible) to speak to [his attorney] (Inaudible) conversation." The judge refused to reopen the hearing, ruling in part that the proffered testimony was not relevant in the absence of proof that the "setup" was linked "to the allegations against this defendant in this criminal trial."
Defendant testified and denied the allegations of the complaint. On cross-examination, the prosecution attempted to impeach defendant's testimony by proof of a 2002 conviction in Florida for what was asserted to be a third-degree offense of possession of a controlled dangerous substance. See N.J.R.E. 609. The judge conducted a N.J.R.E. 104(a) hearing to determine if the conviction was for a crime and if defendant had been represented by counsel. The judge had before him a February 22, 2002, "Order of Probation," which included a "Judgment of Guilt" demonstrating a conviction. The judge rejected defendant's claim that he was uncounseled and that the evidential material before him was insufficient to find a conviction for a crime, that is to say an offense punishable by more than six months in jail. See In re N.A., 218 N.J. Super. 547, 549 (App. Div. 1987).
On appeal, defendant presents the following arguments for our consideration:
C.M.'S STATEMENTS TO [RUTH], H.M. AND DETECTIVE PAGLINO CONSTITUTED INADMISSIBLE HEARSAY TESTIMONY. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10.
A. Sixth Amendment Violation
B. Violations of Hearsay Rule and State Constitution
DETECTIVE PAGLINO'S VIDEOTAPED INTERVIEW OF C.M. WAS INSUFFICIENTLY INTELLIGIBLE TO BE ADMITTED.
INADMISSIBLE HEARSAY CONTAINING PREJUDICIAL INCLUDED HEARSAY WAS ADMITTED, IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM.
DEFENDANT'S PRIOR CONVICTION WAS ERRONEOUSLY ADMITTED BECAUSE IT WAS NOT SUFFICIENTLY PROVEN.
THE COURT ABUSED ITS DISCRETION IN CURTAILING THE CROSS-EXAMINATION OF RONALD TALLEY AND REFUSING TO RE-OPEN A RULE 104 HEARING AS TO THE ADMISSIBILITY OF TALLEY'S TESTIMONY.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
DEFENDANT'S 16 YEAR SENTENCE, WHICH EXCEEDED THE THEN-EFFECTIVE PRESUMPTIVE TERM FOR DEFENDANT'S FIRST DEGREE CONVICTION BY ONE YEAR, WAS UNCONSTITUTIONAL.
None of these arguments, with the exception of Point VII, has merit.
Defendant first objects to the admission of C.M.'s out of court statements to H.M., Ruth, and to the prosecutor's office. The statements were admitted pursuant to N.J.R.E. 803(c)(27), which permits evidence of an out-of-court "statement by a child under the age of 12 relating to sexual misconduct committed with or against that child" if certain conditions are met. The only condition questioned here is the requirement that "the court find, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[.]" N.J.R.E. 803(c)(27).
At the conclusion of the mandated hearing, the judge related the evidence he had heard to the factors utilized to determine if the statement was trustworthy as enumerated in State v. D.G., 157 N.J. 112, 125-26 (1999) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 827, 110 S.Ct. 3139, 3150, 3153, 111 L.Ed. 2d 638, 656, 659-60 (1990)). His determination that the statements were trustworthy should not be disturbed in the absence of a clear error of judgment. State v. Brown, 170 N.J. 138, 147 (2001); State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). The judge's thorough analysis was supported by substantial evidence in the record and we have no warrant to disturb his ruling. State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). Defendant's claims to the contrary do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant next argues that that the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), prohibits the utilization of a testimonial hearsay statement unless the declarant was available and subject to cross-examination at the time the statement was made. That position ignores the language of Crawford explaining "that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59 n.9, 124 S.Ct. at 1369 n.9, 158 L.Ed. 2d at 197 n.9. Here, C.M. testified. The Confrontation Clause, therefore, does not bar the hearsay statements, which were otherwise admissible pursuant to N.J.R.E. 803(c)(27).
Nor does C.M.'s limited recall of the events described in her hearsay statements or the degree of her responsiveness to cross-examination affect the analysis. Hearsay statements made, for example, by a witness who, while testifying, could not recall or explain the basis for the statement remain admissible because "[t]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed. 2d 951, 957 (1988) (quotations omitted). We need not decide if the complete inability of a child witness to recall the incidents described in a hearsay statement would present either constitutional objections or present a possible bar to the use of N.J.R.E. 803 (c)(27)*fn2 because C.M. did testify to the incident giving rise to the charge against defendant. Accordingly, no Confrontation Clause issues were implicated and we have no warrant, as we have explained, to disturb the judge's findings that the conditions for admission under the Tender Years Exception, N.J.R.E. 803(c)(27), were met.
We summarily reject defendant's claim that the videotape was so inaudible and unintelligible that admission was an abuse of the judge's discretion. See State v. Driver, 38 N.J. 255, 287-88 (1962). Our independent review convinces us that the material aspects of the tape were clear and those minor portions that were unintelligible were not at all critical. The judge's decision to admit it was not an abuse of his discretion.
We reach the same conclusion respecting the judge's decision to admit Valle's recitation of the information he had received from H.M. when he took the initial complaint. That testimony was elicited to rebut a defense suggestion that H.M. had been less than forthright in her reporting and was meant to demonstrate that H.M. had indeed provided substantial relevant information. The evidence of H.M.'s statement was not elicited to prove the truth of the statement; it was offered only to prove the statement was made. Since it was not offered to prove the truth of the statement, it was not hearsay. See N.J.R.E. 801(c) (defining hearsay as an extra-judicial statement offered for "the truth of the matter asserted"); State v. Long, 173 N.J. 138, 152 (2002) (noting that no hearsay exception is necessary for the admission of a statement "not offered for the truth of the matter asserted"); State v. Humanik, 199 N.J. Super. 283, 306 (App. Div.) (describing out-of-court statements not offered for the truth of the statement as "verbal acts" rather than hearsay statements), certif. denied, 101 N.J. 266 (1985).
Moreover, even if the testimony was objectionable, its admission cannot be harmful. The material would certainly have been admissible if offered directly by H.M. pursuant to N.J.R.E. 803(c)(27) and, in any event, did not have a clear capacity "of producing an unjust result." R. 2:10-2.
Nor do we believe the judge abused his discretion in declining to reconvene the N.J.R.E. 104(a) hearing to explore again the testimony available from Talley. N.J.R.E. 611(a) vests discretion in the trial court to control the interrogation of witnesses so as to avoid needless consumption of time. In the absence of some concrete basis on which to believe Talley would provide relevant evidence, the judge was well within his discretion in ruling as he did. We reject as unsupported by the record any suggestion that the judge failed to provide adequate time for the defense to explore Talley's knowledge. To the contrary, the judge provided more than ample time and exhibited patience in the face of a witness who was clearly reluctant to testify.
Similarly, we reject as without merit defendant's claim that his Florida conviction should not have been admitted. Proof of that conviction may be made by "any evidence . . . that reasonably satisfies the court that the defendant was convicted." N.J.S.A. 2C:44-4d. Because the evidence was submitted to demonstrate the admissibility of the conviction, it was not subject to the rules of evidence. N.J.R.E. 104(a). The documents evidenced a conviction for a third-degree offense of attempted possession of a controlled dangerous substance which is punishable by imprisonment of more than six months. FLA. STAT. § 775.082(3)(d) (2002). There was more than ample proof of the conviction.
Moreover, the record does not support defendant's claim that he was unrepresented in Florida. He had the burden to prove he was not counseled. State v. H.G.G., 202 N.J. Super. 267, 281-82 (App. Div. 1985). Not only did he fail to meet that burden, but the record supports the judge's finding that he was represented.
We turn next to the cross-appeals respecting sentence. The State concedes that the imposition of a sixteen-year term, which exceeded the then presumptive term for first-degree crimes, may not be sustained in light of State v. Natale, 184 N.J. 458 (2005). Since the sentence must be reconsidered, we decline to address defendant's assertion that the sentence originally imposed was excessive.
Finally, we consider the State's cross-appeal respecting the merger of the count three conviction of second-degree endangering into the count one conviction of first-degree aggravated sexual assault. We agree with the State that merger of a conviction of second-degree endangering with a conviction of first-degree aggravated sexual assault, even if based on the same conduct, is prohibited. State v. Miller, 108 N.J. 112, 118-19 (1987). Defendant argues that merger of third-degree endangering into a sexual assault is appropriate. Again, we agree. State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992). The difficulty, of course, is that defendant was convicted of second-degree, not third-degree, endangering.
The difference between the two degrees of endangering is that the greater crime requires proof that defendant had "a legal duty for the care of [the] child or [had] assumed responsibility for the care of [the] child," while the lesser degree does not. N.J.S.A. 2C:24-4a. Defendant argues now for the first time that he neither had a legal duty to care for C.M. nor assumed responsibility for her care and that the jury's contrary finding was unsupported by the evidence. That claim, made for the first time, was not the subject of a motion for a new trial and may not be considered here. R. 2:10-1. In any event, we find the argument without merit.
The State produced evidence that defendant resided with C.M. and H.M. for a six-week period in a tiny apartment; that during this period, defendant and C.M. watched television together, went to the beach, ate dinner together, and went shopping; and that defendant and C.M.'s mother intended to marry. This would permit a reasonable jury to infer that defendant "assumed a general and ongoing responsibility for the care of the child." State v. Galloway, 133 N.J. 631, 661 (1993).
Moreover, defendant testified that he was comfortable telling C.M. to "listen to her mother and behave, basically" because "[H.M.] asked me to help her discipline [C.M.]." Given the liberal view taken to determine the sufficiency of the evidence to support a conviction, see State v. Reyes, 50 N.J. 454, 458-59 (1967), we are satisfied that the merger of the second-degree endangering into the sexual assault was inappropriate. On resentence, the judge shall sentence separately on counts one and three.
Defendant's convictions are affirmed; the merger of the convictions on counts one and three is reversed; and the matter is remanded for resentencing.