July 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LINDA STEPHENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-2054.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Lintner and Parrillo.
Following a jury trial, defendant Linda Stephens was found guilty of third-degree promoting prostitution, N.J.S.A. 2C:34-1(b)(2)*fn1 on July 19, 2006. She was sentenced to three years probation and one-hundred hours of community service. Defendant appeals, and we affirm.
According to the State's proofs, Minish Patel, owner of Jay and Manny Corporation, leased space at 10 Meadowlands Parkway, Secaucas, where he built the Pegasus Spa in 2003. In March 2004, by written agreement, he sold the Pegasus Spa to defendant, although the lease remained in his name because of defendant's poor credit. Defendant executed a promissory note and a shareholder's agreement, which named her President of Jay and Manny Corporation and gave her responsibility for the dayto-day operations of the Pegasus Spa.
Police investigation into the Pegasus Spa was spurred by Kimberly Bennett, a graduate of the Chubb Institute in Jersey City, a massage training school, which arranged for her to interview for a masseuse position at Pegasus Spa, after her graduation in March 2006. Bennett arrived at the spa in the early evening and was greeted by a Ms. Lee, who interviewed her for the position and who Bennett later identified as defendant. Defendant indicated to Bennett that she was looking for a certified massage therapist, a person who "knew what she was doing[,]" and that previously, "she had gotten in trouble for hiring pretty girls that didn't know anything about massage." Compensation would be tips plus $20 per hour.
At the end of the interview, defendant asked if Bennett would like to give a massage, a routine practice in that field. Bennett was given a customer whom she escorted into one of the massage rooms, and then stepped outside to allow him to disrobe. When Bennett re-entered the room, the customer was lying on his front fully undressed under a cover. She massaged him face down initially. However, when the customer turned over on his back, "[h]e grabbed his penis with one hand and grabbed [Bennett's] hand with the other and pulled [her] towards him." Bennett yelled and screamed, defendant walked in the room, and Bennett ran to the bathroom to wash her hands.
Defendant talked to Bennett after the incident and said the problem might go away if the customer became a regular, and Bennett was more familiar with him. Defendant explained, "whatever you want to happen behind closed doors can happen. And that maybe next time [Bennett] should ask the customer how much of a tip [he's] going to give [her]."
Bennett reported the incident to the Secaucus Police Department, where she gave a verbal statement to two officers, and then signed a written report dated July 14, 2006. During the interview, Bennett was shown a photo array wherein she identified defendant as Ms. Lee.*fn2
Sergeant Joseph Baccola of the Secaucus Police Department was assigned to the follow-up investigation. On July 19, 2006, Baccola, dressed in plain-clothes, went to the spa, equipped with $100 in marked bills, $80 of which was to pay for a massage.
When Baccola entered the spa, he was greeted by Gisella Corrochano who asked if he wanted a massage. He responded affirmatively and was led into a massage room where he undressed and laid down on a table naked with no covers, since none were provided. Corrochano re-entered the room, draped a towel on Baccola and began massaging him, starting with his shoulders, then buttocks, and then grazing his testicles and inner thighs and concentrating on that area. Three-quarters of the way into the massage, the masseuse stopped and asked if Baccola wanted anything else. He wanted to know how much a "hand-job" would be, to which she responded $60 fully clothed, $85 topless, and $125 naked. Baccola offered her the $20 dollars remaining, which she deemed not worth the effort, and completed the massage.
Baccola dressed, walked outside, informed the other officers of what transpired inside, and immediately re-entered the salon to make arrests. Corrochano was arrested with two other female employees, Giovanna Zamarano and Tae, and two male customers. The marked money was recovered from the salon, and two envelopes were recovered from a lockbox.
Tae was originally indicted along with defendant, but the charges were dropped after she pled guilty to a lesser charge on a different prostitution complaint and her cooperation in this matter.*fn3 According to Tae, she worked at Pegasus Spa on and off for about a year. She knew defendant as "Julie," the owner of Pegasus Spa. On an average workday, when a customer came into the spa, defendant would greet the person, guide him or her into a massage room, then assign a masseuse to the customer. Tae had been hired to do full body massages, and any "little extra service" requested, which meant she would use her hands to touch a customer's penis, but nothing else. For her services, she would earn only the customer's tip, not a share of the $80 massage fee.
Defendant was aware that Tae "masturbate[d] the customer with [her] hands" because when Tae complained to defendant about a lack of tips in April 2006, defendant told her to "provide some extra special massage, then you get a tip." Customers would generally tip between $20-$40 for this service. Most of Tae's customers were male, and only 30% of her clients wanted regular massages with nothing "extra."
Defendant was not working at the spa on July 19, 2006, the day Tae was arrested, so the masseuses greeted and took care of their own customers. The money for the massages was placed in a lockbox to be picked up by defendant at the end of the day. In the spa that day there were three customers and three masseuses, so each masseuse had one person, and Tae was arrested about five minutes into her massage. If anything went wrong, Tae was supposed to call defendant on her cell phone.
According to Corrochano, the person who massaged Baccola, she worked at Pegasus Spa on "maybe two occasions" as a masseuse, despite having no formal training. Corrochano was hired by a woman named Ms. Lee, whom she subsequently identified in-court as defendant. Defendant made it clear that no full service, which is sexual intercourse, was allowed, but nude masturbation of a client was acceptable. For this service, Corrochano was told to expect between $80-$100 per client.
The first time Corrochano worked at Pegasus Spa was in May 2006, and the next was on July 19, 2006, when she brought her friend with her, Giovanna Zamarano. Corrochano's version of the July 19, 2006 incident essentially confirmed Baccola's account, except that she denied ever touching his genitals. She agreed, however, that when Baccola indicated he had been to the spa before and offered her $20 for her "extra" services, she turned him down.*fn4
According to Zamarano, her first day of work was July 19th and she was given regular customers upon whom she performed naked "hand job[s]," for which she was paid $120. She was also arrested that day, along with Tae and her friend Corrochano. Later that day, Detective Michael Renky arrested defendant at her home. She was taken to headquarters where as part of her processing information, she gave the police her cell phone number, the same number Tae used to contact the owner of the Pegasus Spa.
On appeal, defendant argues that hearsay testimony was improperly admitted; that it was error to not charge "false in one, false in all"; and that these cumulative errors deprived her of a fair trial. We disagree.
As a threshold matter, we note that our review of a trial court's evidentiary rulings is limited, with deference being given to the decisions below. State v. Fortin, 189 N.J. 579, 597 (2007). Evidentiary rulings "ordinarily should not be disturbed unless [they are] 'wide of the mark.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Even if hearsay testimony is erroneously admitted, this court should not reverse if the error was "'harmless . . . in view of the other similar proofs before the jury.'" State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (quoting State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001), overruled on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005).
Defendant alleges four instances of admissible hearsay: 1) Corrochano's testimony as to part of her conversation with Baccola; 2) Zamarano's testimony that she spoke on the phone with a "Judith"; 3) Tae's testimony that she told the police "Julie" was the spa manager and defendant was "Julie"; and 4) Tae's testimony as to the cell phone number Tae used to contact the spa's owner. We address these contentions in the order raised.
First, defendant challenges Corrochano's testimony that Baccola told her "Lisa" had previously "done things for him." Defendant argues that Baccola's statement was being offered to prove that in the past the officer received the benefit of a sexual act in exchange for money, and as such was inadmissible hearsay and in any event unduly prejudicial. The State disagrees and maintains the statement was not offered to prove Baccola actually received sexual services from "Lisa," but merely to show the probable state of mind induced in Corrochano, who responded that she would perform sexual services but only for a fee.
N.J.R.E. 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "[T]he hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant," and exists to prevent the admission of untrustworthy and unreliable evidence at trial. State v. Long, 173 N.J. 138, 152 (2002); N.J.R.E. 802. By parity of reasoning, "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." Long, supra, 173 N.J. at 152; see also Biunno, supra, comment 4 on N.J.R.E. 801 (2007). Thus, [w]hen a statement is offered not for the truthfulness of its contents, but only to show that the statement was in fact made and that the listener took certain action as a result, or to show the probable state of mind induced in the listener, such as to demonstrate that the listener had information relating to the reasonableness or good faith of subsequent conduct, the statement is not inadmissible hearsay. [Ibid.]
See also Spragg v. Shore Care, 293 N.J. Super. 33, 56-57 (App. Div. 1996); Russell v. Rutgers Cmty. Health Plan, Inc., 280 N.J. Super. 445, 456-57 (App. Div.), certif. denied, 142 N.J. 452 (1995).
Here, we are satisfied that the issue was not whether Baccola spoke the truth about his prior experience at the spa, but whether Corrochano, as a listener to Baccola's proposition, had information about the nature of the spa's business, which helps explain her subsequent conduct in refusing to accept $20 in exchange for sexual favors. Accordingly, Baccola's statement was not offered to prove its truthfulness, but only to show that it was in fact made and the listener took certain action as a result thereof. As such, the statement was not inadmissible hearsay. See, e.g., Statham v. Bush, 253 N.J. Super. 607, 615 (App. Div. 1992). Nor do we find Baccola's utterance unduly prejudicial in light of its obvious purpose, coming from a plains-clothes police officer conducting an undercover investigation, and no doubt evident to the jury.
Defendant next objects to the admission of Zamarano's testimony that she talked to a "Judith" on the phone before coming to work at the spa. Specifically, Zamarano testified that, "before going [ ] to [the spa] I spoke with a person who supposedly was by the name of Judith who was supposedly the manager or the boss, I don't know, or the owner, I don't know." Defense counsel immediately objected because the witness could not identify "Judith" as defendant Linda Stephens, and the prosecutor ultimately was unable to link "Judith" to defendant.
At the close of the State's case, defense counsel moved to strike the reference to "Judith". The court agreed.
THE COURT: . . . What I'm going to do is I'm going to advise the jury that they've heard testimony about a phone conversation that Giovanna Zamarano had with a Judy, that there has been no connection of that phone conversation to the defendant and they are, therefore, to exclude it and not consider it in their deliberations. Okay.
[DEFENSE COUNSEL]: Thank you, Your Honor.
THE COURT: Remind me to give the limiting instruction the first thing before we start the case.
The limiting instruction, however, was not given to the jury.
This omission was harmless error, neither prejudicial nor clearly capable of producing an unjust result. State v. Nelson, 318 N.J. Super. 242, 253 (App. Div.), certif. denied, 158 N.J. 687 (1999). Zamarano referred to "Judith" once, and never linked defendant and "Judith". In any event, there was substantial evidence from, among others, Tae, Bennett, and Patel, identifying defendant as the owner and manager of Pegasus Spa. Thus, Zamarano's testimony on this point was inconsequential, not warranting reversal.
Defendant also objects to Tae's out-of-court statement to police at time of arrest that "Julie" was the manager of the spa and that "Julie" was defendant. At trial, Tae testified that on July 19, 2006, she lied when she first said she did not know the manager of Pegasus Spa, in order to protect defendant, but she later identified Julie, i.e. defendant, as the manager of the spa on that same date. Defendant objected to the statement as inadmissible hearsay, but the court allowed it, reasoning: "[i]t's not being offered for the truth -- the fact that she said -- to counteract the fact [defense counsel] said that was the first time she ever -- was the plea bargain. I'm going to allow it."
To be sure, the challenged testimony was hearsay, being elicited to prove that defendant was the owner of Pegasus Spa. However, it falls within a well-recognized exception to the hearsay rule, Long, supra, 173 N.J. at 152, permitting a prior consistent statement to rebut defense counsel's claim of recent fabrication. Here, on cross-examination, counsel attempted to impeach Tae's credibility by suggesting she only implicated defendant after striking a plea bargain with the State. Consequently, the prosecutor may properly attempt to rehabilitate Tae's credibility with a prior consistent statement. N.J.R.E. 803(a)(1)(2).
Lastly, defendant argues that a portion of Tae's redirect-examination, wherein she testified that she gave the officers defendant's cell phone number, constituted inadmissible hearsay. Because it was an out-of-court statement offered to prove "Julie" and defendant had the same cell phone number and were therefore the same person, it was hearsay. However, its admission was harmless. Tae testified on direct that the very same number belonged to defendant, and Officer Renky also testified that defendant herself told him that was her cell phone number. Both were subject to full cross-examination and therefore the singular reference to Tae's out-of-court statement was "'harmless . . . in view of the other similar proofs before the jury.'" Soto, supra, 340 N.J. Super. at 65 (quoting Federico, supra, 198 N.J. Super. at 131).
Defendant urges that a "false-in-one, false-in-all" jury charge should have been given because of three "inconsistencies": 1) Tae's false statement to police at time of arrest; 2) Tae's version that defendant normally greets customers and assigns masseuses, conflicted with Zamarano's testimony that on July 19, 2006, Tae was the person collecting money from customers; and 3) Baccola's account that his masseuse grazed his private parts contradicted Corrochano's denial. In our view, these so-called "inconsistencies", do not merit a "false-in-one, false-in-all" jury charge.
A "false-in-one, false-in-all" jury charge instructs a jury that it may find the entirety of a witness' statement false if that person "willfully testifie[s] falsely to some material fact." State v. D'Ippolito, 22 N.J. 318, 324 (1956). However, "[i]nadvertent misstatements or immaterial falsehoods are not ground for complete rejection of a witness' testimony." Ibid. The charge may be given at the trial judge's discretion "in any situation in which he [or she] reasonably believes a jury may find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed. 2d 374 (1961).
At the charge conference on May 9, 2007, the trial judge refused defense counsel's formal request for a "false-in-one, false-in-all" charge, finding the general jury charge sufficiently instructive on weighing contradictions in witness' testimony. The judge reiterated the next day that the charge was inappropriate because nothing in the record indicated that any witness intentionally lied.
We agree with the reasoning of the trial judge. In reviewing an alleged error to a jury charge, the charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). There is no entitlement to have a charge exactly in a party's own words, just that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971).
Here, the charge as a whole was comprehensive, detailed and well-tailored to the case at hand. The judge accurately charged the jurors on their duty to determine witness credibility, explaining the jury's duty to scrutinize the witness' behavior; the witness' interest in the outcome of the litigation; any potential bias on the part of the witness; and whether or not the witness made any contradictory or corroborative statements. The judge reminded the jury that it was free to accept all, a portion or none of any witness' testimony. The charge was comprehensive and accurate in its entirety. Wilbely, supra, 63 N.J. at 422; Thompson, supra, 59 N.J. at 411.
Furthermore, none of the instances cited by defendant amounts to a willful falsity of a material fact that would render a "false-in-one, false-in-all" charge appropriate. D'Ippolito, supra, 22 N.J. at 324. First, Tae admitted at trial that at the time of her July 19, 2006 arrest, she gave the police a false statement, and was not testifying truthfully. Two, there is no real disparity between Tae's testimony that normally defendant collected the money at the spa, and Zamarano's testimony that on July 19, 2006 it was Tae who collected the money, since defendant was indisputably not at the spa on that date. Finally, the inconsistency between Corrochano's and Baccola's versions as to whether she touched his private parts is immaterial and tangential, having no bearing on defendant's guilt or innocence. See D'Ippolito, supra, 22 N.J. at 324.
The general jury charge informed the jury that it could accept or reject any witness' testimony and was sufficiently clear, detailed and specific. As such, defendant's argument that a "false-in-one, false-in-all" jury charge was necessitated is without merit.
Defendant lastly urges that the claimed errors, cumulatively, warrant reversal. We disagree.
As noted, there was no error in the jury charge. Moreover, the challenged evidence was either not hearsay, or hearsay falling into one of the well-recognized exceptions, or hearsay whose admission was harmless error, at most "incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair [and] may [not] be invoked to upset [defendant's] otherwise valid conviction." State v. Orecchio, 16 N.J. 125, 129 (1954). Accordingly, we are satisfied that defendant was accorded a full and fair trial in accordance with due process.