June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 14, 2008
Before Judges Cuff, Lisa and Simonelli.
A jury found defendant R.C. guilty 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 third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three). Defendant was sentenced to a fifteen-year term of imprisonment on Count One, a concurrent five-year term of imprisonment subject to an 85% NERA*fn1 parole ineligibility term on Count Two, and a concurrent four-year term of imprisonment on Count Three. The appropriate assessments and penalties were also imposed.
The victim was defendant's niece, D.R. At the time of the acts giving rise to defendant's conviction, D.R. was seven to nine years old. Defendant's wife is the sister of D.R.'s mother. Both families lived in the same town.
D.R. lived with her mother, stepfather, two sisters and a brother in a small apartment. One evening after her stepfather and siblings had left the dinner table, D.R. disclosed her uncle's actions to her mother. Just before she made her disclosure, D.R. and her mother had been discussing her upcoming First Communion.
E.B., D.R.'s mother, recalled having a conversation with D.R. on October 7, 2002. During their conversation about the upcoming Communion ceremony, D.R. asked E.B. whether she had to say everything because God obviously knew good and bad. Then D.R. asked her mother why defendant turns his head to kiss D.R. on the lips when D.R. wants to kiss him on the cheek. E.B. was concerned, so she asked D.R. additional questions. At this point in the conversation, E.B. testified that D.R. was nervous, frightened, and crying.
E.B. asked D.R. whether defendant had ever touched her private parts and D.R. answered affirmatively. D.R. proceeded to tell her mother that she had something else to tell her, but it was something very ugly, and D.R. wanted to know if E.B. would punish her if she disclosed it. After reassuring D.R. that she would not be punished, D.R. told her that defendant had told her to take down her underpants, that defendant had taken down his pants and asked D.R. to touch his private parts. E.B. testified that she did not want to ask D.R. anything else because her daughter was crying. E.B. told D.R. everything would be all right and she put D.R. to bed.
After this conversation, E.B. told her husband of the conversation with D.R. E.B. called her sister, who came over that night. The next morning E.B. went to D.R.'s school to talk to the counselor, who called the prosecutor.
On cross-examination, E.B. admitted that the Division of Youth and Family Services (DYFS) had investigated the family in the past based on an allegation of neglect. E.B. explained that on several occasions three of her children had not been picked up from school because there had been a miscommunication over who was picking them up. She also vehemently denied having a romantic relationship with defendant at anytime.
D.R. was twelve at the time she testified at trial. She was asked whether there are parts of your body which nobody is supposed to touch, and responded, "Your chest, your private part and your behind." She identified defendant as the man who touched those parts on her. D.R. testified that defendant had touched her private part with his hand and with his private part while she was at her aunt's house.
D.R. testified that she was seven or eight when defendant touched her private part. She related, "I was sleeping. My aunt was at work. It was night, and I was laying on one side of the bed, he was laying on the other, and then -- then that's when it happened. It was night." D.R. testified that this occurred once, but she did not remember whether he touched her over or under her clothes.
D.R. was eight or nine when defendant touched her private with his private. D.R. testified that she had been sleeping on one side of the bed and defendant was sleeping on the other side of the bed. Then D.R. felt defendant moving and then "he turned around and his private part went in mine." D.R. did not know how defendant's private part got into hers and defendant did not say anything to her at this time. She testified that her clothes were "[u]p to my knees." She also stated that it did not feel good.
D.R. described a third incident stating, "I was playing a game on the computer and then he called me, and I went into the room, and his shorts were down." At this time defendant told D.R. to touch his private part, but she refused to do so. D.R. also testified that she did not like it when defendant's lips touched her, which happened sometimes at night when they were sleeping.
Finally, D.R. testified that she told her mother about these incidents after everyone had finished dinner. D.R. testified that she had asked her mother a question and her mother had asked why she was asking that question. D.R. went into the bathroom after that and when she came out she was crying. Her mother wanted to know why she was crying and D.R. proceeded to tell her mother everything. When she was asked why she had not told someone sooner, D.R. responded that she was scared and she thought that it was going to be her fault.
In addition to the testimony of D.R. and her mother, a tape of an interview with a detective from the prosecutor's office was played for the jury. The interview occurred a day after D.R.'s disclosure to her mother. The taped interview was consistent with D.R.'s trial testimony.
The jury also received evidence from three experts. Dr. Julia DeBellis testified that she performed a physical examination of D.R. in December 2002, two months after the initial disclosure. She reported that "the examination results did -- neither confirmed nor denied the possibility of sexual abuse." Patricia Sermabeikian, a clinical social worker, described the Child Sexual Abuse Accommodation Syndrome (CSAAS) for the jury. In doing so, she explained the reasons a child may delay reporting incidents of sexual abuse. Defendant presented the testimony of Dr. Gerald Cooke, a clinical and forensic psychologist. He testified that the features of CSAAS "just simply [do] not discriminate between abused and non-abused children." He also criticized certain aspects of the interview conducted by the prosecutor's detective. Although the detective generally avoided leading questions, he commented that she failed to explore the difference between the truth, a lie, and fantasy.
Defendant did not testify. He waived his right to testify after the judge ruled that the prosecutor could question defendant whether he digitally altered a photograph he would have presented during his testimony. The photograph depicted D.R.'s mother and defendant; it was highly suggestive of a romantic relationship.
On appeal, defendant raises the following arguments:
POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE STATE TO CROSS-EXAMINE HIM REGARDING A PHOTOGRAPH WITHOUT ANY FACTUAL BASIS TO DO SO, THEREBY PREVENTING THE DEFENDANT FROM BEING ABLE TO TESTIFY IN HIS OWN DEFENSE.
POINT II: THE PROSECUTOR SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).
POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY THE VICTIM'S MOTHER INFERENTIALLY DEPICTING HIM AS A CHILD MOLESTER. (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING ENDANGERING THE WELFARE OF A CHILD INTO COUNT I CHARGING AGGRAVATED SEXUAL ASSAULT. (NOT RAISED BELOW).
POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Aside from denying that he sexually assaulted his niece in any way, defendant sought to demonstrate that D.R.'s mother was biased against him. He attempted to establish this bias through a photograph from which the jury could infer that they were romantically involved. Defendant argues that his defense was thwarted and he was denied a fair trial when the trial judge declined to restrict the prosecutor's ability to impeach the authenticity of the photograph.
During the course of his cross-examination of D.R.'s mother, defense counsel inquired whether there had ever been a romantic relationship between defendant and her. D.R.'s mother vehemently denied the existence of any relationship. After the State rested, defendant advised the trial judge and the State that during his direct testimony he intended to offer a digital photograph of D.R.'s mother and him that strongly suggested that a romantic relationship did exist or had existed between the pair. The trial judge ruled that the photograph would be admissible, but the State would be allowed to inquire whether the photograph had been digitally altered.
Relevance is "the hallmark of admissibility." State v. Darby, 174 N.J. 509, 519 (2002). N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." In the context of a criminal prosecution, relevant evidence is evidence that bears directly on the elements of the offense, defenses offered by the defendant, and the interest or bias of any witness. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 401 (2008).
In a criminal case, relevance is also affected by the defendant's constitutional right to present a defense. Ibid. Thus, to demonstrate the relevancy of proffered evidence, the defendant need show only that the evidence has a rational tendency to raise a reasonable doubt about an essential element of the State's case. State v. Fortin, 178 N.J. 540, 591 (2004). Evidence that a witness has a motive to offer testimony that is untrue or that omits critical facts may be relevant. See State v. R.D., 345 N.J. Super. 400, 404-07 (App. Div. 2001) (evidence of bad feelings between the victim's mother and the family of the defendant may have been relevant to the defendant's guilt and admissible to impeach the mother's testimony).
Here, defendant contended that the proffered picture was relevant evidence of a motive to offer false testimony against him. The judge recognized the relevancy of the inquiry and allowed defendant to cross-examine D.R.'s mother about the existence of any romantic relationship between them, and ruled that defendant could refer to the photograph in his direct testimony. See State v. Sugar, 100 N.J. 214, 230 (1995) (the right to cross-examine a witness and test for bias is indispensable in a criminal trial). Stated differently, the trial judge did not preclude defendant from impeaching the credibility of D.R.'s mother. He did rule, however, that the State could inquire whether the photograph had been digitally altered.
When a party seeks to use a document, such as a photograph, to prove an element of an offense or to impeach a witness, the item is subject to authentication. The requirements for authentication are not onerous. The proponent of the item need only adduce "evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. Authentication of a photograph requires testimony that the photograph is an accurate depiction or reproduction of what it purports to represent. State v. Wilson, 135 N.J. 4, 15 (1994).
As is evident, the threshold for authentication of a photograph is low but not so low as to preclude questions about the circumstances of the creation of the exhibit. See State v. Driver, 38 N.J. 255, 287 (1962) (proponent of admission of tape recordings must establish that no changes, additions or deletions have been made). See also Jenkins v. Rainner, 69 N.J. 50, 57 (1976) (noting that a camera may be "an instrument of deception", and an adversary should be given an opportunity to test the validity of the scenes depicted). Here, we discern no error in allowing the prosecutor to inquire about alteration of the photograph. The broad availability and use of digital equipment and features of such equipment that allow users to readily edit their photos provided a sufficient foundation to allow the inquiry proposed by the prosecutor.
Defendant also argues that several of the prosecutor's comments in his summation exceeded the bounds of propriety. Many of the comments to which defendant objects related to defendant's expert. We disagree.
Defendant did not testify. He presented the testimony of one witness, Dr. Cooke, a clinical and forensic psychologist. Dr. Cooke testified about CSAAS. He related that research and experience has demonstrated that certain factors originally identified as indicators of CSAAS are no longer valid. He opined that there is no formula which can definitively identify a child who has been sexually abused or a "well-established cluster of symptoms" that characterizes children who have been sexually abused.
In his summation, the prosecutor remarked that defendant's expert witness had "an impressive resume" but that it was easy for him to discount the validity of CSAAS evidence because he sat in an "ivory tower." Prior to this remark, the prosecutor reminded the jury that Dr. Cooke had not treated patients for ten to twelve years and spent most of his time lecturing, writing and testifying in court. In these remarks, the prosecutor referred to the daily fee charged by Dr. Cooke and concluded with the following statement:
This is the best you can get for $6,000? If he mis-heard something and he's writing a report and this man is on trial, for $6,000 he can't find the rewind button if he didn't hear it right? No, because it's too easy to collect the $6,000 and say whatever needs to be said in the report to help the defendant.
Notably, defense counsel did not object to these remarks.
During summations prosecutors walk a fine line and zeal can often turn into prosecutorial misconduct.
Prosecutors are expected to make a vigorous and forceful closing argument to the jury, State v. Rose, 112 N.J. 454, 517 (1988), and are afforded considerable leeway in that endeavor, State v. Smith, 167 N.J. 158, 177 (2001). Nevertheless, there is a fine 'line that separates forceful from impermissible closing argument.' Rose, supra, 112 N.J. at 518. Thus, a 'prosecutor must refrain from improper methods that result in wrongful conviction, and is obligated to use legitimate means to bring about a just conviction.' Smith, supra, 167 N.J. at 177. [State v. Nelson, 173 N.J. 417, 460 (2002).]
"[P]rosecutors are permitted considerable leeway to make forceful, vigorous arguments in summation." Id. at 472. Therefore, a prosecutor's comment must be considered in the context of the entire trial record. Ibid.
It is considered misconduct for the prosecutor to cast unjustified aspersions on the defense or defense counsel if those comments create danger of prejudice. Id. at 461. Such misconduct has often been found where the prosecutor implied that the defendant's witnesses manufactured their testimony out of empathy with the defendant or based upon collusion. E.g., State v. Jenewicz, 193 N.J. 440, 417-71 (2008) (finding prosecutorial misconduct when prosecutor stated the defendant's witness "'crossed over the bridge from being an objective psychiatrist to a subjective advocate' out of a 'zeal to help [the defendant]'"); Nelson, supra, 173 N.J. at 461-62 (finding it improper where prosecutor suggested that the defense's expert witness "'went over the edge as a member of the defense team to help this defendant'" and '"at no time did [the expert] forget what color jersey he's wearing on the stand, what team he's on'"); State v. Rose, 112 N.J. 454, 518-19 (1988) (finding misconduct where prosecutor implied that the defense experts' testimony was fabricated or contrived with the assistance of defense counsel even though both experts were well qualified and explained the basis for their opinions). Prosecutorial misconduct may also result where the prosecutor has made statements that are clearly contrary to the evidence that was adduced at trial. Jenewicz, supra, 193 N.J. at 472.
In State v. Smith, 167 N.J. 158, 174-76 (2001), the Court addressed the prosecutor's continual reference to the fees that the defense's expert witnesses collected. In Smith, the prosecutor told the jury that it did not need to accept the defendant's experts' testimony "'just because somebody with a degree or with whatever qualifications says that that's the way it is.'" Id. at 174. In reference to the defendant's expert witnesses, the prosecutor suggested that experts can tailor their testimony to satisfy the litigation needs of their clients in order to assure future retainers. Ibid. Defense counsel immediately objected to this suggestion and a curative instruction was issued. Ibid. However, immediately thereafter the prosecutor again told the jury that they could consider whether the expert "shaded his testimony." Id. at 174-75.
Although in the final charge to the jury, the judge informed them that it was not improper for an expert to be paid a reasonable fee, id. at 175-76, the Court held that prosecutor's remarks were improper. Id. at 188. Moreover, the Court found that the several curative instructions were not enough to remedy the misconduct particularly given the prosecutor's remark immediately following the first curative instruction. Ibid.
These circumstances do not exist in this case. Here, the fact of payment was not a dominant theme of the prosecutor's summation. Dr. Cooke had not treated patients for at least ten years. His lack of recent clinical experience was grounded in the record and was fair comment. Moreover, the absence of an objection foreclosed the opportunity for the prosecutor to retract the remarks or for the trial judge to provide a prompt curative instruction. State v. Frost, 158 N.J. 76, 83 (1999). The absence of an objection also allows this court to presume that trial counsel did not believe the remarks were prejudicial at the time they were uttered. Ibid.
Moreover, some of the prosecutor's comments mirror remarks by defense counsel in his opening remarks and in his summation. For example, defense counsel referred to testimony about CSAAS as "this hair-brained concept." Defense counsel also stated that the experts to be presented by the State were "believers" and "jaded" by their experiences. Referring to the fees charged by Dr. Cooke, defense counsel informed the jury, "Well, that's what it costs to get the best." Additionally, sarcasm about the qualifications and experience of the expert witnesses was not confined to the prosecutor. Defense counsel referred to Sermabeikian as a "glorified social worker," who had been trying to obtain her doctorate for ten years.
We do not mean to suggest that counsel are free to demean the expert witnesses produced by both parties. Defense counsel who have resorted to demeaning comments, however, will have greater difficulty convincing an appellate tribunal that the State's resort to such comments unilaterally tipped the scales in their favor.
Defendant also contends that the prosecutor impermissibly commented on the demeanor of the victim. Both counsel argued that the jury should focus on D.R.'s demeanor. Defense counsel stated that her testimony seemed rehearsed. The prosecutor's comments were a fair response to those remarks.
Defendant also argues that a gratuitous comment by D.R.'s mother deprived him of a fair trial. We disagree.
During her direct testimony, the prosecutor asked D.R.'s mother a series of questions to establish the relationship between the victim and defendant. The prosecutor asked her whether her sister and defendant had any children. She responded "No. Thank goodness, no." Defendant contends that this remark implied he was a child molester. Defendant did not object or seek a curative instruction.
Reviewing this record in its entirety, we cannot conclude that this fleeting remark had the clear capacity to produce an unjust result. R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008). See State v. Mays, 321 N.J. Super. 619, 632-33 (App. Div. 1999) (finding that trial judge's failure to give curative instruction sua sponte was not plain error after witness remarked that "Rahway State Prison" was on the back of a picture of the defendant because the defendant failed to request instruction and remark was fleeting in the context of the five-day trial). The remark was also fraught with ambiguity. The response followed an inquiry about where defendant's wife was residing. The jury could easily have concluded that the remark communicated sympathy for her sister due to the upheaval the criminal charges had created in her sister's life.
Finally, defendant urges that his sentence is excessive and that the conviction of third degree endangering the welfare of a child should have merged with the aggravated sexual assault conviction. We discern no basis to interfere with the sentence imposed for aggravated sexual assault. It is founded on an appropriate application of the sentencing guidelines, the identification of aggravating and mitigating factors are based on facts found in the record, and the judge properly applied the guidelines to the facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). The fifteen-year term does not violate the rule announced in State v. Natale, 184 N.J. 458 (2005) (Natale II). On the other hand, as argued by defendant and acknowledged by the State, Count Three, the endangering the welfare of the child conviction, should have merged with Count One.
We, therefore, affirm the conviction but remand for entry of an amended judgment of conviction.