July 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-02-0100.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges A. A. Rodríguez and C. S. Fisher.
Following a jury trial, defendant W.H. was found guilty of first-degree aggravated sexual assault of his fourteen-year-old stepson "J", N.J.S.A. 2C:14-2a (count 1); second-degree sexual assault, N.J.S.A. 2C:14-2c (count 2); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count 3). Judge Timothy G. Farrell merged counts 1 and 2 and imposed a twenty-year term with a NERA*fn1 parole disqualifier, parole supervision for life and five years mandatory parole supervision. The judge also ordered that defendant comply with Megan's Law*fn2 registration and notification requirements. On count 3, the judge imposed a concurrent ten-year term as well as parole supervision for life, five years mandatory parole supervision and compliance with Megan's Law requirements. We affirm.
The relevant State's proofs can be summarized as follows. Defendant lived with his wife and her five children. Defendant is the father of two of these children and the step-father to the other three. Defendant's wife worked nights and defendant worked days. On July 21, 2004, the wife worked the 11:00 p.m. to 7:00 a.m. shift. As per her usual practice, she called the home several times during the night, but on this particular night no one answered. She arrived home around 7:20 a.m. on July 22 and took a nap. Defendant was not home. When she got up, she telephoned her mother and mentioned that it was strange that no one answered the telephone during the night. One of her daughters, "V," overhead her mother and explained that around 6:00 a.m., while going to wake up her siblings, she opened the door and saw defendant with his boxers down and his buttocks exposed, standing in front of a couch. J was sitting on the couch, directly facing defendant's groin area. Upon noticing V, J quickly laid down. Defendant looked "like he was about to run." Shocked by what she saw, she immediately closed the door.
After V told her mother this, the mother spoke with J. J eventually testified that on the morning of July 22, he was awakened by V entering the room and there was defendant with his pants down standing over him. J explained to the jury that since September 2003 he had a sexual relationship with defendant, which he described as "like having sex - relations." He elaborated that the acts included anal sex and on each occasion defendant would "actually go inside" and "penetrate" him with his penis. J would not always "accept it" and defendant would leave the room. According to J, defendant put his penis in J's mouth "about 30 times." On some of these occasions, defendant actually ejaculated in J's mouth. On one occasion, J said that defendant pinned his hands down "so I couldn't do nothing" and penetrated him. These sexual attacks occurred most Saturdays when J would stay at his mother's home. J testified that while the sexual attacks were occurring, his mother was either in her bedroom sleeping or at work.
J explained that he did not scream during such attacks or tell anyone about them because he was afraid. Defendant was the disciplinarian in the home and often employed corporal punishment.
Defendant's wife called her mother and then the police. That same morning, Vineland Police Officer Dwight D. Adams went to defendant's residence and interviewed J and his mother. He then requested and received a warrant for defendant's arrest. Adams, along with Officer Robin Green, arrested defendant at his place of employment.
Vineland Police Detective Shane Harris interviewed defendant after reading him the Miranda*fn3 warnings. Defendant chose to not give a taped statement, but told Harris that he wanted to tell the truth and that his step-daughter, V, had not lied. He said that he "didn't want to put his children through this confusion anymore." Defendant admitted that he had oral sex with J on at least six occasions. On some of these occasions, defendant said he would be sleeping when J began performing oral sex on him and on one occasion he remembers kicking J away in an attempt to get him to stop. Regarding anal sex, defendant initially denied having engaged in it with J, but when asked again, responded "[I] didn't see how that could do [me] any good."
Regarding the incident on July 22, defendant told Harris that he was sleeping and that J came into defendant's room. The two went into J's room. Defendant stood in front of J, pulled his pants down slightly and placed his penis in J's mouth. Then defendant heard V enter the room and he immediately pulled up his pants, left the house and went to work.
Defendant testified at trial. Prior to testifying, defendant requested that he be able to discuss the fact that J is a homosexual. Judge Farrell properly ruled that J's sexual orientation was not at issue. Nor could defendant indicate that J had consented because consent was not a defense available to the defendant. The judge also denied defendant's request to discuss J's juvenile record*fn4 and defendant's motion to suppress his statement to the police.*fn5
According to defendant, on July 21 he fell asleep after playing video games and waiting for his wife's telephone call.
J then sexually assaulted defendant the following morning while defendant slept. Defendant testified that V was lying. He did not know why any of his children would make such allegations. As to why he was standing in front of J when V walked in the bedroom, defendant gave the following "explanation" to the jury:
Well, I went into the TV room where [J] was and I was angry at [J], very upset at [J]. And my intention was - was to teach [J] a lesson because of what he was doing to me in my sleep, you know, while I was trying to get rest.
And to be discrete and appropriate, I intended to urinate in [J's] face because I was angry, but still, on the same hand, intended to show [J] love and concern so that he would gain genuine contrition for, you know, what he was doing all along, you know.
So that's what my step-daughter seen when she seen me with my back turned . . . .
[M]y motive was to urinate in [J's] face because he made me very angry . . . . I did not intend to hurt [J]. I wanted him to develop genuine contrition.
Defendant admitted that J had performed oral sex on him in the past. He stated, however, that it was he, and not J, who was the victim of sexual assault, and that these assaults often occurred while defendant was sleeping.
Defendant gave conflicting responses to the question of whether he had ever ejaculated in J's mouth. First, he denied ever doing so. Then, he said he could not remember. Later, he said he may have and thinks he did. According to defendant, on some occasions when J was performing oral sex on him, defendant thought it was his wife.
On appeal, defendant contends:
THE PROSECUTOR SPECIFICALLY ELICITED TESTIMONY FROM DETECTIVE ADAMS, IN DIRECT CONTRAVENTION OF STATE V. ALVAREZ, 318 N.J. SUPER. 137 (APP. DIV. 1999), THAT AN ARREST WARRANT WAS OBTAINED BY THE POLICE AGAINST THE DEFENDANT IN VIOLATION OF DEFENDANT'S STATE AND CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10 (Not Raised Below).
Defendant cites in support of his position State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999). In Milton, defendant was charged with possession of cocaine after police executed a search warrant for his bedroom and discovered cocaine. Milton, supra, 255 N.J. Super. at 516, 519. Another warrant for his person was also issued, but defendant was not home so it was never executed. Id. at 517. At trial, the prosecutor mentioned the search warrant in his opening statement and elicited testimony from the investigating officer about it. Id. at 519. Defense counsel objected and moved for a mistrial, but the judge denied his motion. Ibid.
In reversing defendant's conviction, we held that the prosecutor's references to the warrant to search defendant's person were immaterial and irrelevant and denied defendant his right to a fair trial. Id. at 520-21. Even if the existence of the warrant for defendant's person was material and/or relevant, any probative value was outweighed by its "unquestionable" prejudicial impact: 'the mention of the existence of the warrant to search his person [invokes the] natural inference . . . that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs.' Id. at 520.
However, in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), the Supreme Court rejected a similar argument made by a capital defendant. Id. at 239-406. There, defendant argued police testimony regarding the execution of a search warrant for an informant's home and defendant's telephone records "constituted an impermissible reference to a judicial finding of probable cause that defendant was involved with the murder . . . ." Id. at 239. The Court disagreed, finding the claim without merit because it relies on: the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. [Id. at 240.]
The Court also distinguished Milton, noting that the warrant at issue there "had the capacity to mislead the jury," ibid., presumably because that warrant, which was not even executed, suggested to the jury that a neutral magistrate had already determined Milton's guilt, the very question it was there to deliberate over and decide. See Milton, supra, 255 N.J. Super. at 520.
Two years after Marshall, we decided State v. Alvarez. Alvarez, convicted of weapon possession, argued on direct appeal that it was plain error for the prosecutor to make repeated references to the search warrant which led to the discovery of the weapon. Alvarez, supra, 318 N.J. Super. at 142, 145. We followed Milton, without any mention of Marshall, and reversed. We concluded that the repeated references to the warrant were immaterial and irrelevant and, therefore, prejudicial. Id. at 147-48.
We addressed the issue most recently in State v. McDonough, 337 N.J. Super. 27 (App. Div.), certif. denied, 169 N.J. 605 (2001), a case with facts much more akin to those presently before us. There, the investigating officer testified that warrants had been issued for defendant's arrest and the search of his home. Id. at 32. McDonough, on trial for murder, did not object at trial. Ibid. Yet, he argued on direct appeal that the "testimony suggested to the jury that a judge had found sufficient cause to justify the arrests and searches." Ibid. Defendant also argued that Milton and Alvarez controlled and this was plain error requiring a new trial. Ibid.
We rejected this argument and found no error, relying on Marshall. Id. at 32-33. We also rejected the holdings in Milton and Alvarez by saying, "[i]nsofar as this court's rationale in Milton and Alvarez may conflict with Marshall, we are of course required to follow the Supreme Court's decision in Marshall." Id. at 33. We now note that, in both of those cases, the offense charged was a possessory one. Thus, knowledge that a search warrant was issued implied to the jury that a judge had found that defendant possessed contraband. In short, the jury could be swayed by the issuance of a warrant by a judge.
Here, the jury had to decide whether defendant had committed certain acts. The fact that a warrant was issued for defendant could not have surprised or confused the jury and in no way implied that a neutral judge already determined defendant's guilt. Nothing in the record regarding the warrant implied additional evidence that the State had not presented of sexual assault and/or child endangerment beyond the testimony of V, J and Adams. The testimony by Adams to the arrest warrant was one brief allusion at trial. Moreover, defendant's incriminating statement to the police and his own testimony were ample proof of his guilt. We conclude that the mere fleeting reference to the arrest warrant had no impact on the jury's verdict and was not "clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendant also contends:
TESTIMONY BY [HIS WIFE] THAT THE DEFENDANT WAS INCARCERATED IN THE COUNTY JAIL EIGHT DAYS AFTER HIS ARREST, DENIED DEFENDANT, BOTH HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS V; VI AND XIV; N.J. CONST. ART. I, PARS. 1, 9 AND 10.
We are not persuaded. We note that after this testimony was received, defendant moved for a mistrial. The judge denied the motion and gave the following curative instruction:
Folks, you just heard some testimony that soon after his arrest [defendant] was in the county jail. This information is not to be used to show in any way that [defendant] is a bad person or that he is disposed to commit any crime, including the crimes for which he's charged.
And an innocent person can be in jail simply by reason of an inability to make bail on a given charge. Whatever brought the defendant to that facility is irrelevant to your deliberations in this case and should not -- and you should not speculate . . . . You should not consider this in your deliberations [in] any way or for any purpose.
Defendant argues that the curative instruction was insufficient because the judge "did not specifically tailor the curative instruction specifically to the defendant . . . . [giving the jury] free rein to speculate that the defendant could have been in jail as the result of other charges." We disagree.
A trial court may grant a mistrial upon motion of the defendant "if required in the interest of justice." R. 3:20-1. A trial court sits in the best position to decide whether evidence that came in improperly had such a prejudicial effect to warrant a mistrial. State v. Winter, 96 N.J. 640, 647 (1984). A court may determine, in exercising its discretion, that a cautionary instruction or other steps can effectively cure the error complained of by a party. See Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2008) and cases cited therein. Accordingly, we will leave undisturbed the trial court's ruling unless doing so results in a "manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000); State v. DiRienzo, 53 N.J. 360, 383 (1969).
Here, defendant relies heavily on a number of "prison-garb" cases, arguing a lay witness's mention of a defendant's post-arrest incarceration is analogous to a defendant being dressed in prison garb during trial. This analogy is not persuasive. A defendant's right to a fair trial encompasses the right not to appear at trial in distinctive prison attire. State v. Artwell, 177 N.J. 526, 534-35 (2003). Thus, an indication that defendant was in jail during trial, even several months after the arrest, could convey to the jury that defendant is deemed dangerous and thus has to meet a high bail or that defendant has committed another offense.
But that is not the case here. Here, the testimony was a fleeting reference to incarceration shortly after defendant's arrest. The reference was immediately addressed by the judge in the form of a curative instruction. Defense counsel did not object to the instruction. Such a fleeting reference, coupled with an immediate curative instruction, does not amount to harmful error. See State v. Miller, 159 N.J. Super. 552, 562 (App. Div.), certif. denied, 78 N.J. 329 (1978).
Defendant also argues that:
PROSECUTORIAL MISCONDUCT, DURING CROSS-EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).
Specifically, defendant points to a number of questions by the Assistant Prosecutor, who asked defendant whether the State's witnesses had been lying or mistaken. Defendant argues "the jury was asked to infer that virtually every State's witness had been lying, if the defendant were to be believed, because obviously, every State's witness could not have been mistaken." There was no objection to the questions. We do not agree with this argument.
Prosecutorial misconduct is grounds for reversal of a criminal conviction only if "the conduct was so egregious it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). See also State v. Bucanis, 26 N.J. 45, 56 (only conduct which "substantially prejudice[s] the defendant's fundamental right to have a jury fairly evaluate the merits of his defense" warrants reversal), cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).
When defense counsel fails to object to a prosecutor's questions or summation during trial, it creates an inference that counsel does not perceive the remarks as prejudicial. State v. Irving, 114 N.J. 427, 444 (1989) (citing State v. Johnson, 31 N.J. 489, 511 (1960)). See also Ramseur, supra, 106 N.J. at 323 (when "no objection is made, the remarks usually will not be deemed prejudicial."). "Defense counsel is not ordinarily free to scrutinize the record at his later leisure and to secure reversals upon the basis of what he thus discerns as error, unless it definitely comes within the scope of our plain error rule . . . ." Bucanis, supra, 26 N.J. at 57.
In State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), defendant appealed her conviction, arguing, among other things, that the prosecutor's cross-examination of her, in which she was asked "whether State's witnesses had been lying when they testified against her[,]" mandated reversal of her conviction. Id. at 237. We disagreed, and found that although such questioning was "inappropriate and should not be countenanced[,]" it was not "conduct constitut[ing] a basis for reversing defendant's conviction." Id. at 238. We noted:
The prosecutor's questions concerned specific inconsistencies between the testimony of the defendant and that of the State's witnesses. The prosecutor did not act improperly in pointing out the inconsistencies; the impropriety lay only in the form used to develop the point. There was no misrepresentation or mis-characterization of anyone's testimony. The discrepancy between the testimony of defendant and that of the witnesses testifying for the State was clear and virtually self-evident. The prosecutor simply highlighted and emphasized those inconsistencies. [Ibid.]
See also State v. Bunch, 180 N.J. 534, 549 (2004) (holding that when the Assistant Prosecutor asked defendant, "So basically you want this jury to believe that everything that the officers came in here and testified to is untrue?" was not harmful error "in view of the substantial amount of evidence of defendant's guilt and the trial court's instruction to the jury that it must determine the witnesses' credibility[.]").
Judged against that standard and based upon review of the case law, keeping in mind the presumption that trial counsel's decision to not object may be a matter of trial strategy, we conclude that the questioning by the Assistant Prosecutor here was not so egregious that it deprived this defendant of a fair trial.
Finally, defendant contends that:
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Defendant argues his sentence on count 1 is excessive and asks that we either remand for resentencing or, alternatively, impose a term between thirteen and seventeen years. He does not challenge his sentence on counts 2 and 3. This argument is unpersuasive and we affirm.
Appellate courts have the power to review and, if necessary, vacate a sentence when it is manifestly excessive, even when within statutory limits. N.J.S.A. 2C:44-7; State v. Bess, 53 N.J. 10, 18 (1968). In State v. Roth, 95 N.J. 334 (1984), the Supreme Court instructed that appellate review of a sentence should be limited to three inquiries: 1) were the correct sentencing guidelines followed; 2) is there "competent, reasonably credible evidence" in the record to support application of those guidelines; and 3) did the sentencing court make "such a clear error of judgment that [the sentence] shocks the judicial conscience." Id. at 363-64. Reviewing courts also possess the authority, under R. 2:10-3, to modify a sentence, but only when the sentencing court was "clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (1989). However, exercise of such original jurisdiction "should not occur regularly or routinely . . . [and] a remand to the trial court for resentencing is strongly to be preferred." Id. at 411.
Here, defendant was convicted of aggravated sexual assault, a crime of the first degree. N.J.S.A. 2C:14-2a. This crime carries an ordinary sentencing range of ten to twenty years.
N.J.S.A. 2C:43-6a(1). The judge found three aggravating factors set forth in N.J.S.A. 2C:44-1a, i.e., (3) (6) and (9). Aggravating factor (3), the risk that defendant will commit another offense, was based on defendant's prior convictions for four indictable offenses, as well as his "continuing insistence that he is the victim here and that in reality the victim should be punished here and not him." This, according to the judge, indicated a "high likelihood" defendant will re-offend.
Addressing aggravating factor (6), defendant's prior record and the seriousness of those convictions, the judge discussed defendant's four previous indictable convictions. The judge also found aggravating factor (9), deterrence for defendant and others, based on defendant's comments, both at trial and at sentencing, which suggested to the court that "nothing that's happened to him in the system before [that] deterred this present conduct." The judge also put great emphasis on a mental health evaluation, which found that defendant was "hedonistic, opportunistic and exploitive and that he continues to stress that he is the victim and not the actual victim." The judge concluded that "the aggravating factors clearly[,] convincingly [and] substantially outweigh the [absence of] mitigating factors."
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. Id. at 215-16.
We also conclude that the sentence complies with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), State v. Abdullah, 184 N.J. 497 (2005) and State v. Natale, 184 N.J. 458 (2005) (Natale II), which were announced prior to the sentencing date in this case, May 5, 2006. Therefore, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged . . . ." Natale II, supra, 184 N.J. at 487.