May 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 trucking runs defendant made on his regular job on June 27 and June 30 were also admitted into evidence and reviewed with co-workers.
On Friday, August 12, 2005, the jury was charged and commenced its deliberations. It deliberated for about six hours without reaching a verdict before being excused for the weekend recess. Before deliberations resumed on the following Monday, one of the jurors asked to be excused due to the death of her father-in-law. The court excused that juror and substituted an alternate who was randomly selected. The judge then directed the reconstituted jury to begin its deliberations anew. Later, that day, the jury returned a verdict, finding defendant not guilty on counts one, two and three, but guilty on counts four, five and six.
Defendant moved for a new trial, and on December 16, 2005, that motion was denied, following which the court proceeded with the sentencing hearing. Defendant has appealed, and we now reverse and remand.
On appeal, defendant raises the following points of argument in his brief:
POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AS J.M.'S TESTIMONY DID NOT SUPPORT A CONVICTION.
POINT II: AGGREGATE ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN THE SPECIFIC CONTEXT OF THIS CHILD SEXUAL ASSAULT CASE RESTING ON THE CREDIBILITY OF THE CHILD.
A. THE TRIAL COURT ERRED BY PERMITTING AMENDMENT OF THE INDICTMENT AT THE CLOSE OF THE STATE'S CASE.
B. THE TRIAL COURT ERRED BY ALLOWING THE STATE'S EXPERT WITNESS TO TESTIFY TO J.M.'S OUTOF-COURT STATEMENT DESCRIBING SEXUAL ABUSE BY DEFENDANT (NOT RAISED BELOW).
C. IMPROPER COMMENTS MADE BY THE PROSECUTOR DURING SUMMATIONS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
D. THE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE ON A PANEL THAT HAD REACHED AN ADVANCED STAGE OF DELIBERATIONS (NOT RAISED BELOW).
At the outset, we note that a trial judge may not set aside the verdict of a jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law. [R. 3:20-1.]
Moreover, on review of a trial court's denial of a motion for a new trial on the ground that the jury verdict is against the weight of the evidence, the trial court's ruling "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; State v. Cook, 179 N.J. 533, 565 (2004). It is the jury's role to reconcile factual inconsistencies and to assess credibility of all witnesses including the credibility of a child who testifies. Where, as here, giving due regard to the ability of the jury to assess credibility, there is evidence in the record which, if accepted, would support the verdict, we will not disturb the trial court's denial of defendant's motion to set aside the verdict on the ground that it is against the weight of evidence. See State v. Perez, 177 N.J. 540, 555 (2003).
Defendant contends that the re-amendment of the indictment at the close of the State's case, over his objection, constituted reversible error. We disagree. The rules governing criminal practice expressly permit the amendment of an indictment or accusation to correct errors in form or description or to charge a lesser-included offense. Thus, Rule 3:7-4 provides:
The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.
The courts of this State have consistently recognized the power of the court to amend an indictment. State v. Stefanelli, 78 N.J. 418, 429 (1979); State v. Witte, 13 N.J. 598, 605-07 (1953); State v. Grothmann, 13 N.J. 90, 94 (1953); State v. Sing Lee, 94 N.J.L. 266, 268 (E & A 1920); State v. Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997); State v. Kuske, 109 N.J. Super. 575, 585-86 (App. Div.), certif. denied, 56 N.J. 246 (1970). However, that power is limited to matters of form, not substance. Grothmann, supra, 13 N.J. at 94.
Where time is not of the essence of the offense laid in the indictment, an amendment altering the time of its alleged commission is permissible, if within the statutory period of limitation, unless thereby a different offense would be charged. The critical inquiry is whether the amendment would charge an offense not presented by the grand jury. [Witte, supra, 13 N.J. at 607; see also State v. Yanetti, 101 N.J.L. 85, 87-88 (E & A 1925) (holding in an indictment for carnal abuse that the averment of the time of commission of the act is formal and not of the essence of the offense; hence, proof from which it may be inferred that the offense was committed on the day named in the indictment, or on any day within the statute of limitations, is sufficient to sustain a conviction).]
Similarly, in Stefanelli, supra, the Court acknowledged that "[w]here . . . time is not crucial either to the defense to or prosecution of a charged offense, an amendment changing or correcting a date is not objectionable." 78 N.J. at 429.
More recently, our Supreme Court observed that "because the precise date on which the offense of sexual assault occurs is not a legal constituent of the crime, the date need not be set forth in the complaint, . . . that is, the 'technical' requirements of the statutory offense do not call for a statement of when the criminal act occurred." State in the Interest of K.A.W., 104 N.J. 112, 120 (1986) (citations omitted). A defendant is merely entitled to receive fair notice of the charge against him. Id. at 121.
The aim is to narrow the time frame of the occurrence as complained of -- if not to the extent of an exact date or dates, then possibly in respect of seasons of the year, or incidents in the victim's life such as a death in the family, or a change in a family member's job routine, or the beginning of the school year or of vacation time or of extracurricular activities. [Id. at 122-23.]
While the State's wait-and-see approach may have had some potential to cause confusion, we do not find it was unfair or impermissible. As the trial court noted, the re-amendment reverted to a timeframe that was encompassed by the original indictment for which defendant would have prepared and as to which he would not have been surprised. By virtue of the pre-trial amendment, the acts described in counts four, five and six of the indictment were alleged to have occurred between June 25 and June 27, 2003, whereas the original indictment had alleged that the acts described in those counts occurred between June 25, 2003 and July 1, 2003. Then, at the close of the State's case in chief, presumably based on J.M.'s testimony on redirect examination when she stated specifically that pastor touched her on June 30, the State moved to re-amend the indictment to expand the timeframe of the sex acts in question to include that date. Defendant objected, arguing he was prejudiced because he had prepared a defense to the three dates in the amended indictment, not those in the original. The court overruled that objection and accepted instead the State's position that because the amended timeframe was within the range of the original indictment, defendant was not prejudiced because he should have been fully prepared and investigated all those dates before the trial. We cannot conclude that the trial court abused its discretion in this regard.
Defendant relies largely on Middleton to support his position that the trial court's exercise of discretion was mistaken. 299 N.J. Super. at 22. In Middleton, the defendant was convicted on two counts of distributing drugs within 1000 feet of school property. Id. at 24. The original indictment alleged that the drug transaction occurred on July 26, 1994. Id. at 26. The complaints and the police report noted that the transaction took place on July 23, 1994, although defendant's identity was not known to the police until July 26. Ibid. Midway through jury selection, the State moved to amend the indictment in order to change the date of the crime from July 26, 1994 to July 23, 1994. Id. at 27. Defense counsel objected generally but the judge allowed the amendment. Ibid. The next morning, defense counsel moved for a continuance so that he could investigate an assertion made by defendant regarding an alibi for July 23, 1994. Ibid. The State joined in defendant's motion because it also wanted an opportunity to investigate the alibi witnesses. Ibid. Nonetheless, the court determined that the trial would proceed promising counsel "every latitude" but no continuance. Id. at 29.
This court reversed and remanded the matter for a new trial. Id. at 35. Writing for the panel, Judge Pressler acknowledged that "the State is ordinarily given leave to amend the date alleged in the indictment where the date is neither of the essence of the offense nor crucial either to the State's case or the defendant's, and defendant is not, therefore, prejudiced." Id. at 34. On the other hand, she noted that "while the date alleged in the indictment was not of the essence of the crime, it was the essence of the defense since defendant claimed to have an alibi for the amended date." Ibid. Under such circumstances, the panel reasoned, "[i]t is fundamental that a defendant may not be deprived of a defense or the opportunity to prepare and present one by reason of the State's late amendment of the indictment." Ibid. Accordingly, the panel concluded that the trial court should have awarded defendant a three-day continuance instead of "requir[ing] a defendant accused of serious crime to prove his defense on the fly while the State keeps changing the ground rules." Id. at 35; see also State v. Bellamy, 329 N.J. Super. 371, 377-78 (App. Div. 2000) (commenting that "[it] is no answer at all to say defendant would have been convicted anyway. He is entitled to a fair opportunity to present his best defense and to engender a reasonable doubt as to his guilt," and "when balancing a short delay in the start of trial against defendant's legitimate ability to present a viable defense, . . . the integrity of the criminal process must prevail over the administrative disruption."); but see State v. Lopez, 276 N.J. Super. 296, 308 (1994) (upholding the lower court's amendment to an indictment because defendant claimed no discernable prejudice).
Here, the State curiously moved to amend the indictment twice within a fairly short time span. Based on the original grand jury indictment, defendant should have anticipated defending the dates June 25 - July 2. Then, prior to the commencement of trial, the State contracted the focus of the case by reason of amending the indictment to allege the period June 25 through June 27. The period was then again expanded at the close of the State's case, to encompass June 30. Certainly, "[k]nowing of the amendment at the beginning rather than at the end of trial places [a] defendant in a better position to meet anything new in the charge." Kuske, supra, 109 N.J. Super. at 585. Yet, defense counsel did not request a continuance or specify any discernible prejudice as a result of the amendment.
When the court questioned defense counsel about his ability to present alibi witnesses for the re-amended indictment, counsel gave the following response:
I would object to the expansion of the indictment to include June 30th. While case law supports the narrowing of indictment dates, the fact is we should be notified of whatever change as early as possible so we can prepare for it.
In this particular instance only during the middle of trial did we receive information we wish the reamend [sic] complaint now to include June 30th days. I believe it violates [M.M.'s] constitutional rights to be able to confront his accuser, to have an idea, clearly identifiable idea when these charges are being leveled against him.
Now, and that did not happen. The prosecutor put in a case, made a tactical decision as to the dates, June 25, 26 and 27. Now because of the testimony of [J.M.] that it may be the 30th to now broaden that, would then require [M.M.] now to defense twenty-four hours of June 30th after trial has already begun, I think places an onerous burden on him where he thinks he has to tap dance around whatever dates the prosecutor has decided. Now, whether it's voluntary nature of the witness come forward, if she said July 1st or even July 2nd, at one point she said it was the day she went to Burger King which would have been July 1st. So now it's almost -- a jury could say well, what about the Burger King date, I believe that maybe it happened on date she went to the Burger King, [M.M.] now in a position where he has to now defend July 1st, and then we're now in the middle of trial. I think it's prejudicial, unduly prejudicial to [M.M.] now to have to explain June 30th or any other date when the prosecution at this time of trial set the dates as being June 25th through June 27th. That's my objection.
Because the re-amended dates were included in the original indictment, the court ruled the defendant would not suffer any prejudice. He had time to research those dates and should have been prepared to proceed on them. That determination is consistent with Rule 3:7-4 and with the cases that permit amendments "so long as this does not result in charging a 'different offense' and 'the defendant will not be prejudiced thereby in his defense on the merits.'" Stefanelli, supra, 78 N.J. at 429 (quoting R. 3:7-4).
Ideally, by the time the jury is sworn and opening statements are delivered, a defendant should know the scope of the charges against which he must defend. The critical issue, however, is whether defendant was surprised or prejudiced by the amendment. Notably, defense counsel never directly asked for an adjournment or continuance, as did counsel in Middleton. Although he vigorously objected to the proposed re-amendment, he did not assert that his opening statement and cross-examination of the State's witnesses would have been altered or that the defense would have been different. Counsel presented evidence to establish alibis for all of the dates included in the amended indictment. He made no proffer that there was additional evidence or that other witnesses could have been assembled regarding June 30. Although the re-amendment may have invited jury confusion and allowed the State to take a wait-and-see attitude toward the proofs, we do not perceive that defense counsel had to so change his defense strategy "on the fly," that defendant was deprived of "a fair opportunity to present his best defense and to engender a reasonable doubt as to his guilt." Bellamy, supra, 329 N.J. Super. at 377.
Defendant next contends the trial court committed a serious error when it reconstituted the jury panel after nearly a full day of deliberation. Rule 1:8-2(d)(1) authorizes the substitution of a juror under certain limited circumstances after deliberations have begun:
[I]f at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged . . . .
Where a juror claims an inability to continue, that inability to function must be personal and unrelated to the juror's interaction with the other jury members. "If a court suspects that the problems with the juror are due to interactions with other jurors, the court should instruct the jury to resume deliberations." State v. Hightower, 146 N.J. 239, 254 (1996) (quoting State v. Valenzuela, 136 N.J. 458, 472-73 (1994); see State v. Jenkins, 365 N.J. Super. 18, 24 (App. Div. 2003).
In this case, the petitioning juror had a valid reason to be excused, and the court properly substituted that juror with an alternate. The juror asked to be excused because her father-in-law died, and the court accepted that she would have been unduly distracted if forced to continue deliberating. An alternate was selected by lot. Then, the court appropriately instructed the newly constituted panel to begin deliberations anew. See State v. Corsaro, 107 N.J. 339, 346 (1987) (stating that when substituting a juror, deliberations must begin anew). There is no indication that, at the time of the substitution, the panel was so entrenched in their views of the evidence that substitution of a new juror was impractical. In short, the court followed the proper procedures, and defendant's point challenging the juror substitution must fail.
On the other hand, we agree with defendant's further argument that the deliberations of the newly constituted jury became tainted by the presence of a chart left in the jury room. The original jury had created or developed a chart apparently fashioned to memorialize certain of their collective thoughts, facts and analyses, and that chart was left in the jury room. Plainly, the chart should have been removed or destroyed prior to the start of deliberations with the new juror.
In defense counsel's argument at the motion for a new trial, he argued that the chart reflects inaccuracies or confusion as to the dates and timing of the offense. We do not reach that issue, and because inquiries into jury deliberations are exceptional, Rule 1:16-1; State v. DiFrisco, 174 N.J. 195, 241 (2002), we will never know what use was actually made of the chart. However, we harbor grave concerns about the presence of any extraneous or unauthorized information about the case in the jury room. Although information on the chart was not extraneous to the original jury, it was, without regard to its accuracy, extraneous to the newly-constituted jury.
"When a jury is exposed to extraneous information after deliberations have begun, a mistrial will almost always be required." Hightower, supra, 146 N.J. at 264 (citing State v. Kociolek, 20 N.J. 92, 96-97 (1955)). "The deliberative process of a jury 'must be insulated from influences that could warp or undermine the jury's . . . ultimate determination.'" Hightower, supra, 146 N.J. at 265 (quoting Corsaro, supra, 107 N.J. at 346). Any irregularity in the deliberative process is presumptively prejudicial. Id. at 267; see also State v. Basit, 378 N.J. Super. 125, 135 (App. Div. 2005) (reversing conviction and observing that where the record failed to disclose whether or not an ex parte communication by the court with the jury was prejudicial, it will be presumed to be so).
Though we cannot gauge the extent to which it may have actually impacted the decision of the newly constituted jury, we have no doubt the chart qualifies as an extraneous source. The mere exposure of the new juror to a deliberative exhibit created by the original jury was fraught with the risk that the new juror's freedom of decision would be unduly influenced. It is supremely difficult to start deliberations anew when the road map to a decision has already been drawn.
Trial courts must be vigilant to insulate the deliberating environment from all unauthorized case-related material. Prior to jury deliberations and throughout the pendency of deliberations, the only material available to the jurors should be court-approved exhibits, documents or notes. Any other material creates an unacceptable risk of distracting, misinforming or misguiding the panel.
Because defense counsel did not object at trial, and the issue is not critical to our disposition of the case, we decline to address defendant's contention that Dr. Linda J. Shaw was permitted to offer inadmissible hearsay that unfairly bolstered the credibility of J.M. See R. 2:10-2 (any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result).
Addressing briefly the other points raised by defendant, we are satisfied that the remarks made by the prosecutor during summation were not so egregious that they would have warranted a reversal. See State v. Wakefield, 190 N.J. 397, 437-38 (2007). His comments were directed to the evidence and to arguments of defense counsel. His use of popular jingles to add color to the comments in summation did not have the effect, in our minds, of diminishing or shifting the State's burden. These points do not warrant further discussion in a written decision. R. 2:11-3(e)(2).
Reversed and remanded for a new trial.