April 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN M. WHITTINGTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-07-0929.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Wefing, Parker and Lyons.
Defendant Kevin M. Whittington appeals from a judgment of conviction entered on June 18, 2004 after a jury found him guilty of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to a term of ten years and subjected to the requirements of Megan's Law. We affirm.
D.H. alleged that in the summer of 1997, when he was eleven years old, defendant sexually abused him. Defendant was a junior pastor at a church and hosted sleepovers for young boys, inviting them to sleep in his bed. D.H. alleged that while he was sleeping in defendant's bed, defendant made sexual overtures to him and masturbated him through his boxers until he climaxed. The child was embarrassed and insisted that he had wet his pants. Defendant washed the child's underwear and told him that if he ever told anyone about the incident, defendant would say that D.H. "was coming on to him."
D.H. did not report this incident until April 2001, when he and his mother went to the Trenton Police Department. After the report was made, Detective Robin Gittens asked defendant to come to the Trenton Police Department to speak with her. Gittens read defendant his Miranda rights*fn1 and advised him that he was a suspect in an investigation of sexual abuse. Defendant proceeded with the interview, indicating that he had numerous sleepovers with boys who attended the church and allowed them to sleep in his bed. He told Gittens that D.H. wet the bed and awakened defendant by "humping" his buttocks. Gittens did not have defendant sign a statement at the time because he did not make a "full confession." Defendant subsequently retained an attorney and invoked his right to silence.
At trial, defendant's testimony differed from the statement reported by Gittens. Defendant claimed he did not report the incident because he did not want to damage the child's relationship with his mother.
In this appeal, defendant argues:
THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE RIGHTS BY EXCLUDING EVIDENCE REGARDING D.H.'S SEXUAL ORIENTATION. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 10
THE DEFENDANT WAS PREJUDICED BY IMPROPER TESTIMONY BY DETECTIVE GITTENS THAT HE WAS LYING ABOUT THE INCIDENT, THEREBY DENYING HIM A FAIR TRIAL, REQUIRING REVERSAL. (Not Raised Below)
THE PROSECUTOR'S EXAMINATION OF GITTENS, WHICH FOCUSED ON WHY GITTENS DID NOT TAKE A FORMAL STATEMENT FROM DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
Prior to trial, defendant moved to admit evidence regarding D.H.'s knowledge that he was a homosexual at the time of trial, although he was unsure of his sexual orientation at the time of the incident. D.H. was eleven at the time of the incident, fifteen when he reported it and eighteen at the time of trial. Defendant argues that the trial court erred when it excluded this evidence under the rape shield statute, N.J.S.A. 2C:14-7, and claims that his constitutional rights of confrontation and due process were violated by the court's excluding the evidence.
"The right to confront and cross-examine accusing witnesses is 'among the minimum essentials of a fair trial.'" State v. Budis, 125 N.J. 519, 531 (1991) (quoting Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973)). The right is not absolute, however, and must yield to competing State interests such as fairness and reliability. Ibid. "[T]rial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice . . . or only marginally relevant [evidence].'" Id. at 32 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986)). The trial court must closely examine the competing interests between the State and the accused's rights to confront a witness. Ibid.
Pursuant to the rape shield statute, N.J.S.A. 2C:14-7, a victim's prior sexual conduct is inadmissible unless it is relevant, material and its probative value substantially outweighs its prejudicial effect. In sexual assault cases, "evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it . . . except as provided in this section." N.J.S.A. 2C:14-7(a). "Sexual conduct" is defined, in pertinent part, as "any conduct or behavior relating to sexual activities . . . reflected in . . . life style." N.J.S.A. 2C:14-7(f).
The statute was enacted "to protect rape victims from excessive cross-examination, thereby encouraging them to report the abuse." Budis, supra, 125 N.J. at 529. The statute safeguards against the "improper use of evidence of the victim's prior sexual experience." Ibid. "By ensuring that juries will not base their verdicts on prejudice against the victim, the statutes enhance the reliability of the criminal justice system." Ibid.
The court must conduct a two-part analysis to ascertain whether evidence of prior sexual conduct is admissible. Id. at 532. First, the court must determine "whether the evidence was relevant to the defense." Ibid. If so, the court must then determine "whether its probative value outweighs its prejudicial effect." Ibid.; accord, State v. Cuni, 159 N.J. 584, 600 (1999). The probative value of the prior sexual acts "depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense." Id. at 533. In assessing the prejudicial effect, the court should consider "the likely trauma to the child and the degree to which admission of the evidence will invade the child's privacy." Ibid. "The proper balance of relevance and prejudicial effect depends on the facts of each case." Ibid.
Here, defendant asserts that evidence of D.H.'s alleged homosexuality provides proof of his "motiv[ation] to bring false allegations against defendant" and supports the defense that it was D.H., not defendant, who initiated the encounter. The State submits that D.H.'s alleged sexual orientation constituted his lifestyle, and as such was properly precluded pursuant to N.J.S.A. 2C:14-7(f).
Prior to trial, the court conducted a hearing to determine whether evidence of D.H.'s sexual orientation would be precluded under the rape shield statute. The court concluded that it would "follow the rape shield statute, and any reference that would be made to . . . [D.H.'s] sexual conduct would be limited to anything that occurred that evening, that being the date of the offense." The court, however, did not allow a discussion of the victim's lifestyle.
During the trial, defense counsel began questioning D.H. on events that took place at the church. The following questions led to the State's objection:
Q: Why did you start to stay at [Defendant's] house?
A: Well, it wasn't my idea. It was more like the pastor's idea for, like, single -- well, not necessarily single mothers, but just to have the mothers take time out from their kids when the father wasn't around.
They would have [defendant] to hang with as male role model.
Q: Okay. During your time at the church, did the pastor ever have you walk around the church saying things?
The prosecution objected to the line of questioning and the following colloquy took place at sidebar.
[DEFENSE COUNSEL]: Judge, this witness was -there was a concern in the church this witness was developing into a young adult that was homosexual, and there was efforts [sic] made to . . . adjust that.
[PROSECUTOR]: This is exactly the issue we addressed in the rape shield argument. And the Court made a ruling that the question would be limited to whether or not this victim was actually homosexual . . . on the actual night of the incident, the date in question. The questions of this nature are not only irrelevant, but they've already been broached.
[DEFENSE COUNSEL]: It absolutely is related to his motive. It's our position that this boy made movements on [defendant], and then in his panic, as a preemptive strike, he lodged these complaints against [defendant].
THE COURT: Preemptive strike four years later?
[DEFENSE COUNSEL]: Absolutely.
THE COURT: We're not going here. I already have ruled on this, and I'm not going to permit it.
[DEFENSE COUNSEL]: I will be allowed, consistent with the Court's ruling, to ask him if he was a homosexual on the night he stayed with [defendant]?
[PROSECUTOR]: I don't see how it is relevant.
[DEFENSE COUNSEL]: You just said that was the Court's ruling.
THE COURT: That doesn't go as to whether or not this child was the aggressor on the night in question.
[DEFENSE COUNSEL]: But it does go to address the concerns he might have that this story [came] out when he was 12 years old. Maybe it doesn't matter to him now, he's out of the closet now. But back then he wasn't, and the social stigma attached to it.
THE COURT: I'm sustaining the objections. Okay?
[DEFENSE COUNSEL]: So we're not going to be allowed to broach that at all?
THE COURT: For the record. Absolutely.
Defendant argues that the rape shield statute does not apply because the evidence was proffered to establish D.H.'s motivation to bring false allegations and to establish that D.H. was the aggressor. As the trial court noted, however, the evidence of D.H.'s sexual orientation was not relevant to the allegations. Under the statute, relevant evidence is defined as either evidence material to proving the source of semen, pregnancy or disease, or as evidence that the victim freely and affirmatively permitted the alleged sexual behavior. N.J.S.A. 2C:14-7(c) and (d). Here, the question of whether D.H. was the aggressor is not a relevant factor in the sexual assault of an eleven year-old boy, pursuant to N.J.S.A. 2C:14-2(b), or in endangering the welfare of a child, under N.J.S.A. 2C:24-4(a). Even if the boy were an acknowledged homosexual at age eleven, the evidence had no probative value in proving who initiated the sexual activity.
Defendant next contends that he was prejudiced when Detective Gittens testified on rebuttal that she did not take a formal statement from defendant because "[h]e wasn't giving a full confession." Defendant maintains that Gittens's testimony implied he was lying during the initial interview. Defendant argues that even though his trial counsel did not object to the questioning, Gittens's testimony was a comment on defendant's credibility resulting in a denial of his right to a fair trial.
On direct examination, defendant testified that during his initial interview Gittens told him she would question him and all of the children who had attended the sleepover in a group interview at a later date. Defendant claims that Gittens told him she believed the victim was lying about the events that took place on the night of the sleepover.
In response to defendant's testimony, the State re-called the detective as a rebuttal witness. She testified that she did not tell defendant she would interview witnesses in a group because that was not proper procedure. Moreover, she did not tell defendant she thought D.H. was lying and would not have asked defendant to come in for questioning if she had believed the victim was lying.
"Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses." State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). The determination of what is proper rebuttal evidence and whether it should be admitted is within the discretion of the trial court. State v. Balles, 47 N.J. 331, 343 (1966). The trial court's decision to allow rebuttal evidence "will not be disturbed in the absence of gross abuse." Ibid. (quoting State v. DeRocco, 53 N.J. Super. 316, 323 (App. Div. 1959)).
Defendant further argues that Gittens's testimony that she did not take a formal statement because he did not make a "full confession" demonstrates a bias toward him and impugnes his credibility. Defendant's reliance on State v. Frisby, 174 N.J. 583 (2002), and State v. Hightower, 120 N.J. 378 (1990), in support of this argument is misplaced.
In Frisby, the Court considered whether police officers' testimony recounting out-of-court statements of non-testifying witnesses was hearsay -- not whether the officers' testimony inferred defendant's guilt. 174 N.J. at 591-92. Id. at 592. In Hightower, the Court was also considering a hearsay error in a police officer's testimony. 120 N.J. at 410.
Here, the detective responded to a question on cross-examination as to why a formal statement was not taken. Once defendant opened the door by asking the question, the detective's response was properly admitted.
Defendant next argues that the prosecutor's questioning of Detective Gittens elicited an improper inference that defendant should not be believed because he invoked his constitutional right to silence. He maintains that this "deprived him of his constitutional rights to due process of law and a fair trial."
There is no question that the privilege against self-incrimination is an "integral thread in the fabric of New Jersey common-law" and a fundamental right protected by the Fifth Amendment. State v. Hartley, 103 N.J. 252, 286 (1986); State v. Johnson, 120 N.J. 263, 296 (1990); State v. Deatore, 70 N.J. 100, 109 (1976). "[W]hen a defendant expressly refuse[s] to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept, and no comment thereon may be made to the jury." Deatore, supra, 70 N.J. at 115 (citations omitted).
Gittens testified on rebuttal cross-examination that a formal statement was not taken from defendant during the first interview because he did not make a "full confession;" she did take notes of their conversation but did not think a formal statement was necessary. On re-direct, the prosecutor clarified Gittens's testimony by asking her why she never took a formal statement. She responded by stating the opportunity did not arise because defendant returned to the police department with an attorney who advised him not to speak.
The State submits that it was proper to question Gittens on why no statement was taken from defendant after defendant opened the door to Gittens's testimony on defendant's invocation of his right to silence on cross-examination. "The 'opening the door doctrine' is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible." State v. James, 144 N.J. 538, 554 (1996). Otherwise irrelevant or inadmissible evidence is admissible to respond to "(1) admissible evidence that generates an issue; or (2) inadmissible evidence admitted by the court over objection." Ibid. The "opening the door" doctrine "allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid.
This rule has its limitations, however. "[E]vidence is still subject to exclusion where a court finds that the probative value of the otherwise inadmissible responsive evidence 'is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury . . . ." Ibid. (Quoting N.J.R.E. 403).
In State v. Jenkins, we considered whether the defendant's opening of the door to his post-arrest silence justified the prosecutor's reference to it during summation. 299 N.J. Super. 61, 65-66 (App. Div. 1997). On direct examination, the defendant was asked whether the two arresting officers ever asked for his version of the story. Id. at 65. The defendant responded by saying no, and that the officers did not hear what he had to say. Ibid. During summation, defense counsel remarked that the defendant was never allowed to provide an explanation of his presence at the crime scene. Id. at 66. The prosecutor then commented during closing argument that the defendant "never once trie[d] to explain until he [was] here in front of you [the jury]." Ibid. We found that defendant's testimony and defense counsel's remarks in summation raised the issue of defendant's post-arrest silence. Id. at 69. As such, "the prosecutor had a right, if not a duty, in the presentation of the State's case to comment on defendant's post-arrest silence and to offer the State's version as to why defendant was silent." Ibid. Here, too, defendant opened the door and the State properly responded.
For the first time on appeal, defendant argues the prosecutor's comments made during the summation violated his right to a fair trial. He contends that the prosecutor "testified" to matters that were not in the record and gave the jury her personal opinions about defendant's guilt and credibility.
Prosecutors are expected to make vigorous and forceful closing arguments and are granted considerable leeway in doing so provided their comments reasonably relate to the evidence presented. 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). The prosecutor's primary duty, however, "is not to obtain convictions but to see that justice is done." Id. at 83 (citing State v. Ramseur, 106 N.J. 123, 320 (1987)). A prosecutor's remarks in summation may serve as a ground for reversal of a criminal conviction only when it is so egregious as to deprive a defendant of a fair trial. Id. at 83.
In determining whether the prosecutor's remarks denied defendant a fair trial, we "must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, 158 N.J. at 83; see Ramseur, supra, 106 N.J. at 322-23. Defense counsel's "failure to object suggests that [he] did not believe the remarks were prejudicial at the time they were made." Id. at 84. Moreover, defendant's failure to object deprived the court of the opportunity to take corrective action. Ibid. Since no objection was made, defendant must demonstrate plain error under R. 2:10-2. Timmendequas, supra, 161 N.J. at 576. We must disregard plain error unless it is "clearly capable of producing an unjust result." State v. Black, 380 N.J. Super. 581, 592 (App. Div. 2005); certif. denied, 186 N.J. 244 (2006).
Closing arguments must not exceed the "four corners of the evidence." State v. Reynolds, 41 N.J. 163, 176 (1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed. 2d 1050 (1964) (quoting State v. Lang, 75 N.J.L. 1, 8 (1907)). "The 'four corners' include the evidence and all reasonable inferences drawn therefrom." State v. Loftin, 146 N.J. 295, 347 (1996) (citations omitted).
We have carefully considered the prosecutor's summation in the context of the record and we find that in each instance raised by defendant, the prosecutor drew from the evidence presented and fairly responded to defense counsel's arguments.