On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-12-01335.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Parker, R. B. Coleman and Lyons.
Defendant M.M. appeals from a judgment of conviction entered on December 16, 2005, following a jury verdict that found defendant guilty of three counts contained in a six-count indictment. The jury found defendant not guilty of counts one, two and three. Those counts allege that between December 1, 1999 and January 1, 2002, defendant had committed certain acts upon J.M., a minor less than the age of thirteen, that constituted first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The jury found defendant guilty of the charges contained in counts four, five and six of the indictment, as amended. Those counts related to acts allegedly committed by M.M. against J.M. in 2003 that constituted first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count four), second degree sexual assault, N.J.S.A. 2C:14-2(b) (count five); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six).
For the conviction on count four, the court sentenced defendant to a term of sixteen years in state prison. Counts five and six were merged, and on count six, defendant was sentenced to four years in state prison, consecutive to the term imposed for count four. The sentence is subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the conditions of Megan's Law, N.J.S.A. 2C:7-1 to 11 and N.J.S.A. 2C:43-6.4. The aggregate prison term imposed is twenty years, eighty-five percent of which defendant must serve to become eligible for parole, or a mandatory minimum of thirteen years seven months and six days. In addition, defendant must serve a five-year term of parole supervision upon completion of the sentence of incarceration. See N.J.S.A. 2C:43-7.2(c).
Because we agree with defendant that the deliberations of the reconstituted jury were tainted by the failure to remove from the jury room a chart created by the original jury and because the presumptive prejudice of such taint cannot be dispelled, we reverse and remand for a new trial.
The following procedural and factual history is relevant to the issues raised on appeal. On June 25, 2003, following the end of the school term, defendant's wife, Mrs. M., began baby-sitting J.M. and her brother. She had previously babysat J.M.'s brother in 2001. In addition to that baby-sitting relationship, J.M.'s mother, B.M., had prior involvement with defendant in some financial transactions. Defendant was also pastor of the family's church congregation. In connection with certain of the investment programs in which B.M. participated at the invitation of defendant, B.M. lost a significant amount of money. Nonetheless, she denies that she harbored any animosity or ill will toward defendant or that she had any motive to retaliate against him.
In general, B.M. testified that she would drop J.M. off at defendant's home and J.M.'s father would pick her up later in the day. According to B.M., on Friday, June 27, 2003, J.M. told her "Mommy, I want to tell you something," but B.M. dismissed the child, saying she was busy. Throughout that weekend, the mother did not make any inquiry of the child, and J.M. did not further communicate the substance of what she had wanted to tell her mother. On Monday, June 30, when the mother tried to drop J.M. off at the home of the babysitter, J.M. was very upset. She was crying. She stated her displeasure. B.M. testified she forced J.M. to go in because she had to go to work. The next day, when she got home from work, B.M. took J.M. to Burger King so they could talk. It was then that J.M. told her mother for the first time that defendant, whom she called pastor, did something to her. J.M. told her mother that defendant had put his hands inside her pants and touched her vagina and her buttocks. This, she said, happened in the pastor's office.
As a result of J.M.'s disclosure, B.M. and her husband went to defendant's home to confront him. According to B.M., defendant said "she's a child, she's lying." However, according to defendant's wife, J.M.'s parents only spoke with her and she told them "No, this is impossible. I been here with the children since morning." She insists they did not speak with defendant. In any event, on July 2, 2003, B.M. reported to the Elizabeth Police Department that defendant had molested her daughter, who was not yet seven-years-old. Defendant was arrested on July 6.
On July 8, Detective Michael Triarsi of the Union County Prosecutor's Office conducted a videotaped interview of J.M. regarding her allegations against defendant. J.M. elaborated, stating [Defendant] called me into his office and um, he, put his hands in my pants and I didn't like it so, when, when when he was finished I, I went down to um, um, watch T.V. and um, my brother was playing and um I was scared that he touched me and I wanted to go home and um, ah, ah a long time ago my, I said I don't want to go to my aunt's house and um, um, so um, my mom, I thought she find a new babysitter but she did. It was my aunt, she had to baby-sit me.
Using anatomically correct dolls, J.M. demonstrated how defendant placed one hand inside the front and one hand inside the back of her pants, and "rubbed her." At one point, J.M. told the interviewer that defendant's finger touched inside her.
On December 24, 2003, a Union County Grand Jury returned a six-count indictment charging defendant with sex related offenses against J.M. when J.M. was less than thirteen-years-old. As already noted, the conduct charged in counts one, two and three of the indictment allegedly occurred between December 1, 1999 and January 1, 2002. The conduct charged in counts four, five and six was alleged to have taken place between June 25, 2003 and July 1, 2003 in the original indictment. However, prior to the start of the trial, the State amended the indictment, narrowing the timeframe alleged in counts four, five and six to assert that those incidents of sexual assault took place between June 25 and June 27, 2003.
The trial took place on August 4, 9, 10, 11, 12, and 15, 2005. At the close of the State's case on August 10, the State moved to re-amend the indictment to expand the timeframe of counts four, five and six to encompass the dates June 25 through June 30, 2003. Over defendant's objection, the judge allowed the re-amendment.
Defendant testified on his own behalf. He explained that he left home very early each day to go to work (normally at about 6:00 a.m. or 6:30 a.m.), and he denied that he was ever home contemporaneous to J.M. in late June 2003. He testified that he did not even know that his wife was baby-sitting J.M. and J.M.'s brother before July 1, the date when B.M. and her husband came and made the sexual assault accusation. Defendant recalled that J.M.'s parents came to his home and spoke with his wife, accusing him of having "touched [J.M.] the wrong way." He testified "[t]hey were speaking with my wife, I heard what they were saying. I was in my office. I came out. But they were so upset that I couldn't speak to them."
Defendant denied that he touched or penetrated J.M. with his hand or finger, and he denied the further claim that he had long ago "put his weiner in [her] mouth." Defendant testified that on June 25 and 26, 2003, he was working at the church trying to finish with the building so that they could move in. Affidavits of fellow workers averring that on June 25 and June 26, 2003, defendant was at the church working in anticipation of an inspection were stipulated into evidence. Time sheets evidencing the ...