January 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAIME S. CAMERON, A/K/A JAMIE S. CAMERON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-11-1467.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges R. B. Coleman and Lyons.
Following a bench trial, defendant Jaime S. Cameron was convicted of peering into windows or other openings of dwelling places (peering), a crime of the fourth-degree, N.J.S.A. 2C:18-3(c). The trial court sentenced defendant to three years probation. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Defendant lives in the same Kendall Courts apartment complex in North Brunswick as both K.I., the victim, and B.U., her friend. K.I. was thirteen at the time of the incident, and fourteen at the time of trial. On the afternoon of September 15, 2005, K.I. and B.U. were with several friends when they observed defendant. He "walked over" and "was just circling around scratching his head." Neither K.I. nor B.U. knew defendant, but they had previously observed him walking around the complex.
According to K.I.'s testimony, defendant approached the group and told K.I. to come to his house in an hour. This scared the children, who ran over to B.U.'s house. K.I. stayed at B.U.'s house for hours because she was afraid to return home, as no one was there. K.I., accompanied by another friend, eventually walked home.
After returning home, K.I., looking out the living room window, saw defendant circling around her house in the dark for about five minutes. Then, at about 5:30 p.m., K.I. observed defendant attempting to enter her house through the window in her mother's bedroom. In response, K.I. left her house and ran to B.U.'s home.
From B.U.'s home, K.I. called her father to report what had happened. When K.I.'s mother came home from work, K.I. told her that defendant attempted to enter their home. Specifically, K.I. told her mother "[t]hat there was a man around the complex stalking me."
On September 16, 2005, K.I.'s mother called the police to report defendant's conduct. Both girls gave written statements to police officers detailing the events of the evening. B.U. told police that K.I. went to B.U.'s house because defendant was attempting to get into her window. B.U. also stated that defendant attempted to initiate sexual contact with her that evening, but later admitted at trial that her mother instructed her to include this in the report. B.U. did not personally witness defendant breaking into K.I.'s home. When the police came to arrest defendant, K.I. testified she saw defendant pull out a knife on her father and that he was screaming. The police report made no mention of either of these assertions.
Defendant was indicted and charged with third-degree burglary, contrary to N.J.S.A. 2C:18-2. On February 10, 2006, the court conducted a pre-trial conference in this matter. At that time, defendant's counsel requested a bench trial. The trial court conducted a voir dire of defendant with respect to this request and also questioned one of defendant's relatives regarding the waiver of a jury trial. The trial court then granted defendant's request to waive a jury trial and set a trial date.
The trial took place on February 23 and 24, 2006. At the trial, K.I. and B.U. testified. Counsel concurred that the court should consider, in addition to the third-degree burglary charge, the lesser included offenses of criminal trespass under N.J.S.A. 2C:18-3(b), and peering into windows of other openings of dwelling places contrary to N.J.S.A. 2C:18-3(c). Defense counsel also sought a sequestration order, which the court granted at the opening of the trial.
On the first day of trial, B.U. testified. On the second day of trial before K.I. testified, the prosecutor advised the court he had forgotten to tell B.U. not to talk to K.I. about the case and that B.U. had telephoned K.I. after her testimony, contrary to the sequestration order. The prosecutor proferred that there was no specific discussion of testimony but basically how the courtroom operated and how B.U. felt about what happened. Defense counsel's position was that "I think it is probably a good idea to proceed at this point." The court concurred, and K.I. then testified.
Following the closing of the State's case, the court inquired on the record of defendant if he wished to waive his right to testify, which he did. The court then proceeded to hear summations. Following the summations, the trial court acquitted defendant of third-degree burglary, but found defendant guilty of fourth-degree peering into windows or other openings of dwelling places contrary to N.J.S.A. 2C:18-3(c). At the sentencing, the trial court imposed a three-year probation sentence. This appeal ensued.
On appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR A BENCH TRIAL BECAUSE THE DEFENDANT'S WAIVER OF JURY TRIAL WAS NOT KNOWING AND VOLUNTARY.
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S WITNESS TO TESTIFY AFTER THE PROSECUTOR CLEARLY VIOLATED A SEQUESTRATION ORDER.
THE TRIAL COURT ERRED IN ENTERING A GUILTY VERDICT BECAUSE THE EVIDENCE WAS NOT SUFFICIENT FOR A FINDING OF GUILT BEYOND A REASONABLE DOUBT.
THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT BECAUSE THE SENTENCE WAS EXCESSIVE.
We will address each point seriatim. Defendant asserts he did not knowingly and voluntarily waive his right to a jury trial. Defendant's argument, however, points to the court's voir dire of defendant on February 24, 2006, at which time the court questioned defendant about whether he wished to waive his right to remain silent and then testify. Defendant's counsel ignores the February 10, 2006, transcript in which defendant requested a bench trial and the court conducted a thorough voir dire of defendant, as well as a member of his family concerning his request to waive a trial by jury.
Both the Federal and State Constitutions grant a criminal defendant the right to a public jury trial with an impartial panel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Mazza, 330 N.J. Super. 467, 470 (App. Div. 2000). If the defendant so chooses, he may waive this right, but that waiver must "be knowing and intelligent." State v. Jackson, 272 N.J. Super. 543, 550 (App. Div. 1994), certif. den., 142 N.J. 450 (1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2053, 36 L.Ed. 2d 854, 868-69 (1973)). When considering the validity of a waiver, the court should consider the totality of the circumstances. Ibid. (citing State v. Koedatich, 112 N.J. 225, 328 (1988)).
Procedurally, "[c]riminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial."
R. 1:8-1(a). A lack of a written waiver is not a fatal defect, however, as long as defendant waived the jury trial in open court and had a clear understanding of the proceedings. State v. Paolino, 110 N.J. Super. 284, 286 (App. Div.), certif. den., 57 N.J. 127 (1970); Pressler, Current N.J. Court Rules, comment 1.2 on R. 1:8-1 (2008). Defendant's verbal waiver may not represent mere acquiescence on his behalf; his verbalization must consist of an express and understanding waiver. State v. Wyman, 232 N.J. Super. 565, 568 (App. Div. 1989).
In this case, the trial judge conducted a thorough inquiry in open court after defendant's counsel requested a bench trial. The court explained to defendant that he had a right to a jury trial. The judge asked defendant if he wanted a "judge trial" instead. Defendant answered affirmatively. The trial judge asked him once again to confirm this answer, and defendant again responded that he wanted a bench trial. Due to defendant's history of care by mental health professionals, the trial judge went so far as to question defendant's relative in open court. The relative acknowledged that defendant wished to have a bench trial. We also note defendant had recently been tried by a jury in the same county on a different charge. This further supports his understanding of a jury trial and his knowing waiver.
Defendant argues that the trial court erred in allowing the prosecutor's witness to testify after the prosecutor clearly acknowledged there was a violation of a sequestration order. Defendant claims that because one of the two State witnesses violated a sequestration order, the court should have granted a mistrial or taken some other disciplinary action against the State. Where a court has entered a sequestration order, and that order has been violated, the rule is "that in the absence of prejudice to defendant, such a violation does not constitute reversible error." State v. Tillman, 122 N.J. Super. 137, 140 (App. Div.) (citing State v. Smith, 55 N.J. 476, 485 (1969), certif. den., 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed. 2d 256 (1970)), certif. den., 62 N.J. 428 (1973). In considering a remedy for a violation, "fault on the part of the State may be a factor to be considered." Tillman, supra, 122 N.J. at 140.
When such a situation arises, the trial judge should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of such violation. He should thereupon determine what remedial action is required, if any, in the light of all the circumstances. In the extraordinary case 'where it appears there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated' (and consequently prejudice cannot be dissipated by other remedial action), the court may grant a mistrial. Under extraordinary circumstances also, the exact nature of which we need not determine here, consideration may be given to the alternative possibility of excluding the testimony of the offending witness. [Id. at 143 (citations omitted) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824)).]
The state admitted to the sequestration violation in open court, and defense counsel thought it best to proceed and placed no objection on the record. Because defense counsel did not contest K.I.'s testimony, we must review the sequestration violation for plain error. See R. 2:10-2.
There is no showing defendant suffered prejudice as a result of the violation. In Tillman, supra, this court granted a new trial on the basis of a sequestration order violation. 122 N.J. Super. at 144. The State's witness, there, spoke to the prosecutor, a testifying victim, an arresting officer, and two other persons during a lunch recess. In those conversations, witness admitted to discussing facts of the case as well as defense counsel's morning cross-examination of him. Id. at 141. This sort of behavior is in stark contrast to defendant's situation. A scared young girl spoke to her friend after the first day of trial. She inquired about how the court functioned, and what she could expect to have to do the next day. There was no evidence that they discussed facts or trial strategy. Furthermore, both witnesses' testimony regarding defendant's attempt to enter K.I.'s house closely followed the contents of the police reports. Defense counsel had a fair opportunity to cross-examine both witnesses on any inconsistencies. Certainly, the seriousness of the violation did not approach that in Tillman. The case before the court did not display the extraordinary circumstances necessary to warrant the extreme remedy of mistrial.
Defendant also argues that the trial court committed error in entering a guilty verdict because the evidence was not sufficient for a finding of guilt beyond a reasonable doubt. Although initially charged with third-degree burglary, N.J.S.A. 2C:18-2, the trial judge found defendant guilty of fourth-degree peering. A person may be found guilty of this crime if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed. [N.J.S.A. 2C:18-3(c).]
This statute "requires that the prohibited 'peering into' be from a location outside, and into, the 'window or other opening of a dwelling or other structure adapted for overnight accommodation[.]'" State v. Burke, 362 N.J. Super. 55, 60 (App. Div.) (quoting N.J.S.A. 2C:18-3(c)), certif. den., 178 N.J. 374 (2003). It is important to note that a defendant need not enter the home to be convicted of this fourth degree offense. Ibid.
On a review of a trial court's decision, we are limited to "determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Castagna, 387 N.J. Super. 598, 604 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), certif. den., 188 N.J. 577 (2006). In order to reverse, we must be convinced that the trial court's ruling was "clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." State v. Johnson, 42 N.J. 146, 162 (1964). With this standard in mind, the trial judge was within his discretion to find defendant guilty of fourth-degree peering.
The record consisted entirely of testimony from the two State witnesses. K.I. testified that she observed defendant circling around her house in the dark. She also saw defendant attempting to climb into her mother's bedroom window, though she never actually witnessed defendant enter the residence. Defendant did not have permission to peer into the window, and did so nonetheless. The trial judge evaluated the credibility of the two witnesses. He found that "[a]lthough there was some, and it was very good cross-examination by [defense counsel] also as well as direct-examination by the State, I do find her testimony with regard to seeing him at the mother's window credible, and as result I find him guilty of peering." There was sufficient credible evidence to support the judge's determination.
Finally, defendant argues that the sentence was excessive. In particular, defendant argues that the term of probation is excessive because "there is no risk of him committing a similar offense when taking his criminal history into account." When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990). This court may, however, modify the sentence if it was clearly mistaken or if its imposition was a clear abuse of discretion. State v. Roth, 95 N.J. 334, 363-64 (1984).
Abiding by the presumption against incarceration for fourth-degree offenses, the trial court did not sentence defendant to imprisonment. Instead, the court sentenced defendant to three years probation. Once a judge decides to impose a sentence of probation, N.J.S.A. 2C:45-2(a) controls the calculation of the term:
When the court has suspended imposition of sentence or has sentenced a defendant to be placed on probation, the period of suspension shall be fixed by the court at not to exceed the maximum term which could have been imposed or more than 5 years whichever is lesser. The period of probation shall be fixed by the court at not less than 1 year nor more than 5 years.
A probationary sentence shall be for a period of one to five years and a person convicted on an offense carrying a statutory maximum of less than five years can, nevertheless, be placed on probation for up to five years. State v. Dove, 202 N.J. Super. 540, 542 (Law Div. 1985).
To arrive at the three-year probationary term, the sentencing judge weighed the applicable aggravating and mitigating factors. Defendant had a simple assault and a disorderly conviction on his record from 2002 and 2005 respectively, but the judge still found that incarceration was not warranted because the judge found defendant would respond positively to probation. The judge found the aggravating and mitigating factors to be in equipoise. The trial court's apparent agreement with the prosecutor that defendant should receive a "longer than usual probationary sentence" and "should be under fairly strict supervision" to protect the community is well-founded after a careful review of the record and presentence report. The sentence is neither excessive, nor an abuse of discretion.
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