July 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JENERI E. ARROYO-HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-07-0819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Lintner and Graves.
A jury found defendant, Jeneri E. Arroyo-Hernandez, guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). The victim, Kimberly,*fn1 was born on October 8, 1991, and she was twelve years old when she testified on September 15, 2004. Defendant was sentenced to a seven-year prison term on count one, subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the court imposed a concurrent seven-year prison term.*fn2 Mandatory fines, penalties, and Megan's Law conditions were imposed as well.
On appeal, defendant presents the following arguments:
DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; A REVERSAL IS REQUIRED.
A. COUNSEL SHOULD HAVE MADE A MOTION FOR A NEW TRIAL ARGUING THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
B. DEFENSE COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR A BILL OF PARTICULARS.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR DISCOVERY OF THE PRIOR TOUCHING OF THE VICTIM.
THE TRIAL COURT ERRED IN ITS TREATMENT OF THE FRESH COMPLAINT ISSUE.
IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION TO ADMIT THE AFFIDAVIT OF THE VICTIM'S GRANDMOTHER INTO EVIDENCE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE IN ERROR (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL IN THAT IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.
Having reviewed the entire record, we affirm defendant's convictions, but remand for resentencing on count two.
In 2002, ten-year-old Kimberly resided in a two-bedroom apartment in Gillette with her mother, M.Z., father, E.Z., and infant sister, N.Z. The family had emigrated from Costa Rica in 2000.
On June 22, 2001, defendant, the husband of E.Z.'s niece, Leslie, emigrated from Costa Rica and resided with E.Z. and M.Z. in their apartment. On August 10, 2001, E.Z.'s mother, Rosa, brought Leslie and J.A., defendant and Leslie's three-year-old son, to join the rest of the family at the Gillette apartment. E.Z. and his family occupied one bedroom, while defendant and his family occupied the other.
At trial, Kimberly testified defendant inappropriately touched her four times. On the first occasion, Kimberly and J.A. were jumping on a bed in the apartment while defendant sat on the bed. According to Kimberly, she "was jumping in the bed and I was jumping with [J.A.] And like we were falling in the bed and like standing and then falling. And then like I fell one time and then he just like put his hand and he passed it by and he just pretend[ed] he didn't do it." Kimberly testified she assumed at the time that defendant touched her by accident.
Kimberly testified that during the second incident, she and J.A. were playing in a tent they had set up in the apartment. Kimberly stated defendant "was playing with us, too, and he was just grabbing our legs and all that stuff. And then I like felt it again. He passed his hand by my part again." Kimberly testified defendant also touched her breast and "pretended it was an accident . . . . and I was just like, okay, I'll just take it as an accident."
The third incident occurred on a Saturday after defendant, Kimberly, Leslie, J.A. and E.Z. returned from shopping. While Kimberly and J.A. were playing on the floor of the apartment, Kimberly claimed she "felt [defendant's] hand" once again. The fourth time defendant allegedly touched Kimberly occurred on March 31, 2002, while Kimberly, J.A. and defendant were playing hide-and-go-seek in the apartment. Kimberly testified defendant was searching for her and when he found her, "he started . . . tickling [her] and all that stuff." Kimberly stated, "he put his hand inside my pants this time . . . and he touched my vagina again. And this time I didn't think it was an accident because . . . he did it really clearly." According to Kimberly, defendant touched her for "[a]bout . . . four seconds."
Afterwards, defendant asked Kimberly if she wanted to go to the movies. At that point, Kimberly's father, E.Z., came home and Kimberly "gave him . . . a really big hug because [she] felt . . . really upset." E.Z. later testified that Kimberly's behavior seemed "different" because she does not usually hug and kiss him "[a]nd, all of a sudden, she sat next to [him] and she hugged [him]." At trial, Kimberly stated she asked her father if she could go to the movies and her father agreed. Kimberly testified that, although she "felt upset," she believed that going to the movies would "make [her] feel a little bit better." Despite Kimberly's testimony, her father testified that it was Leslie who asked for permission to take Kimberly to the movies and although Kimberly "did not want to go . . . . [he] insisted that she go." Thereafter, Kimberly went with defendant, Leslie, and J.A. to see the movie "E.T."
When she returned from the movie, Kimberly went to her room to sleep, but began to cry because she "felt like something was wrong." Kimberly's mother, M.Z., asked her what was wrong and Kimberly took her mother to the bathroom because she did not "want anyone to hear it." Kimberly then told her mother what had happened earlier that day. M.Z. relayed Kimberly's allegation to E.Z. who spoke with defendant about the incident. According to E.Z., defendant told him "he was playing with [Kimberly]." E.Z. told defendant he did not believe him, and he told defendant to move out of the apartment immediately. Three days later, Leslie and J.A. left the apartment as well.
M.Z. testified that E.Z. was going to call the police, but she told him not to because she loved J.A. and Leslie and "knew that [they] were going to be very upset and they were going to suffer a great deal." M.Z. stated that approximately four months after defendant and his family left the apartment, Kimberly saw defendant again when he brought E.Z.'s mother over for a visit. According to M.Z., Kimberly "began to be very nervous" and told M.Z. "that she was going to jump out of the window." Thereafter, M.Z. contacted a social worker to see if the social worker "could assign some psychologist to see [Kimberly]" without filing a complaint because M.Z. "was still thinking about Leslie and the little one." However, the social worker told M.Z. she had to file a complaint before they could help her with a psychologist.
On September 20, 2002, M.Z. took her daughter to the Deirdre O'Brien Child Advocacy Center in Morristown where they met with Detective Matthew Potter of the Morris County Prosecutor's Office as well as Investigator Jocelyn Ortiz from the Division of Youth and Family Services (DYFS). Detective Potter and Investigator Ortiz conducted a videotaped interview with Kimberly which was shown to the jury at trial. In the videotaped interview, Kimberly claimed defendant touched her four times. She stated that during the first three incidents she was playing with J.A. when defendant put his hand on her vagina above her clothing. She said that she did not tell her mother or father because she was afraid that they would be angry with her. Kimberly then stated that the fourth time defendant touched her vagina, he put his hand underneath her clothing. After that incident, Kimberly told her mother because she felt scared.
After Detective Potter completed his interview with Kimberly, he asked Detective Robert Meoqui from the Morris County Prosecutor's Office to assist him in finding and interviewing defendant because Detective Meoqui spoke Spanish fluently. The detectives met defendant at his home that same day and defendant agreed to speak with them. Meoqui testified that he told defendant "it was purely voluntary, that we were investigating, and we just wanted to get his side of the story." Defendant said, "no problem," and he agreed to speak with the detectives at the Morris County Prosecutor's Office. According to Meoqui, defendant was read his Miranda*fn3 warnings in Spanish. Defendant "indicated he understood and he waived his rights in writing." Meoqui, Potter and defendant all signed the Miranda form.
Detective Meoqui informed defendant that he was investigating an allegation by Kimberly that defendant "had sexual contact with her vaginal area." Defendant denied the touching and told Meoqui that Kimberly's "family was very jealous of him and that this is why they were making this up." When Detective Meoqui asked defendant why the family was jealous of him, defendant "would not give [him] an answer." Defendant told Meoqui he had "always had a beautiful relationship" with Kimberly and her family and that "[t]hey were very close . . . they did things together as families do. In fact . . . he had even taken [Kimberly] to the movies and done things with her."
Meoqui asked defendant if he was being honest and defendant "began to shake, got nervous, his eyes were starting to twitch, and he told [Meoqui] no, that he hadn't been totally honest with [him]." Defendant "admitted that on one occasion that he was playing -- tickling [Kimberly] and that he got this impulse and he touched her buttocks." Defendant also told Meoqui "there was another occasion" when "he was playing hide-and-seek with her and his son, and while the son was . . . hiding, he got this impulse . . . to touch her vagina, and he did." According to Meoqui, defendant said he touched Kimberly "above the clothes."
When Detective Meoqui told defendant that Kimberly indicated that he had touched her directly on her vagina underneath her clothing, defendant responded "that she had her reasons for saying that," but would not explain what he meant. Meoqui asked defendant whether he had sexually touched Kimberly any other times and defendant stated "he could not recall any other time, but that it was possible that there were other incidents where he did touch her private parts." Defendant was also asked whether he was sexually attracted to Kimberly to which he responded, "No, I'm not, but she's a pretty girl and she has a nice butt." Defendant then agreed to make a taped statement, which was played for the jury at trial.
While taking the taped statement, Detective Meoqui noticed that defendant "became nervous again and . . . wouldn't actually answer [his] questions directly. He tried to minimize things a little bit." In his taped statement, defendant noted that while he was playing with Kimberly, "she jumped on [him] with [J.A.], and on one occasion so she would not fall [defendant] touched her buttocks part." He also stated, "we play ghost and things like that, and on one occasion while tickling them . . . like I told you before, not intentionally[,] accidentally, that is how I consider it I touched [Kimberly's] vagina when I re[a]lized what I did, immediately I reacted." Defendant claimed that on the occasion he touched the vaginal area over the clothing they "were playing hide and seek." When asked why he touched her, defendant stated, "honestly I tell you there was no . . . bad intentions on my part as to something premeditated." Meoqui asked defendant if it was an impulse and defendant responded, "An impulse, a game, we were playing, and . . . when I realized what I had done that was when [I] removed my hand."
Detective Meoqui asked defendant if it was "possible that it could have been more th[a]n two occasions" that he touched Kimberly and defendant asserted, "No, well we played many times. . . . [B]ut [there are] two occasions . . . that I have very present and I am aware of and I admit responsibility, but like that . . . it might have occurred on other occasions sincerely no." Defendant then conceded to Meoqui that "it could be possible" there were other occasions but he would "admit only those two acts, nothing more." Defendant stated:
Sincerely I feel bad, because from the beginning my wife warned me that excessive familiarity, that no one should play with children and even less with a girl who is almost an adolescent and honestly for those two occasions I feel bad because our friendship has gone down, a friendship that came from family, there was a respect between all of us and now I am doing that with bad eyes.
The defense called several character witnesses who testified defendant was honest and could be trusted. Leslie also testified on behalf of her husband. According to Leslie, on March 31, 2002, the day defendant allegedly assaulted Kimberly for the fourth time, she was sitting in the living room doing arts and crafts while defendant and J.A. played in the bedroom. The bedroom door was open and Leslie "could see [her] husband playing with [her] son. And then at one moment, [Kimberly] arrived, and she asked [Leslie's] son if she could play with them. And they said yes." Leslie testified she could see them playing the entire time "because they were across from" her.
According to Leslie, "after they were playing in the bedroom, [J.A.] told [Kimberly] that [they] were going to go to the movies . . . at night. Then, she [asked defendant] if she could accompany [them]. . . . [They asked Kimberly's] father if he [would allow] her to go. He [gave] her permission to go." Later that night, after they returned home from the movies, Leslie overheard the conversation between E.Z. and defendant in which E.Z. confronted defendant with Kimberly's allegations and defendant denied touching her. Leslie testified defendant moved out the next morning, and she and J.A. moved out on April 3, 2002. Although E.Z. told Leslie that she and J.A. could stay at the Gillette apartment, Leslie testified she "left because I know that my husband is innocent because I was always there and I want to support him in everything because I believe in him. And . . . this is an injustice."
Finally, defendant testified in his own defense. Defendant denied ever touching Kimberly's vaginal area "under her clothes," but admitted to touching her vaginal area "over the clothes" but "by accident." Defendant testified that on the day of the alleged fourth incident he was "playing, running, and . . . would catch [Kimberly and J.A.] to tickle them." He stated, "one moment I caught [Kimberly] and I tickle her and she start moving and everything, and I felt that I had touched a -- a part that was not right. . . . I pull . . . away." Defendant denied intentionally touching Kimberly's vaginal area.
When asked about the time when he touched Kimberly on her buttocks, defendant contended he was merely putting his hands out so Kimberly "would not fall." According to defendant, both incidents occurred on March 31, 2002. Defendant denied ever telling Detective Meoqui that Kimberly "was pretty" or "had a nice butt," and he denied stating he "had an impulse to touch [Kimberly's] vagina" or buttocks. When confronted with Meoqui's testimony that defendant's eye began to twitch during his interview, defendant explained that this was the result of an injury caused by an auto accident ten years earlier.
Defendant first argues his conviction must be reversed because he was denied a fair trial due to ineffective assistance of counsel. Specifically, defendant contends his trial counsel (1) should have moved for a new trial because the jury verdict was against the weight of the evidence, and (2) failed to object to improper comments made by the prosecutor in her opening and closing statements.
Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. "First, the defendant must show that the counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. In United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 667 (1984), the U.S. Supreme Court held that prejudice to the defendant may be presumed when there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Such circumstances involve the complete denial of the right to counsel altogether, actual or constructive. Id. at 659, 104 S.Ct. at 2047, 80 L.Ed. 2d at 667-68.
As stated by the Strickland Court, "[j]udicial scrutiny of counsel's performance must be highly deferential" and "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The court will recognize a "strong presumption" that counsel provided "reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Furthermore, while "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," the Strickland Court noted that "reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. The court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695; see also State v. Fritz, 105 N.J. 42, 59 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).
"Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). This is so because such claims often "involve allegations and evidence that lie outside the trial record." Ibid. "Where asserted facts in support of a prima facie claim of ineffective assistance of counsel are outside the record, an evidentiary hearing is required." State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). However, when the trial itself provides an adequately developed record upon which to evaluate a defendant's claims, appellate courts may consider the issue on direct appeal. State v. Allah, 170 N.J. 269, 285 (2002).
Defendant argues there was insufficient evidence to warrant a conviction and that a reasonable jury could not have found guilt beyond a reasonable doubt. Because trial counsel did not file a motion for a new trial, defendant now contends that his attorney's "performance was so deficient so as to create a reasonable probability that this deficiency materially contribute[d] to [his] conviction." We do not agree.
First, defendant failed to demonstrate that his attorney's performance was deficient or fell below an objective standard of reasonableness. See Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed. 2d at 693-94. The outcome of defendant's trial depended primarily on credibility determinations and, despite testimony from defendant's character witnesses, defendant, and defendant's wife, the jury could have reasonably found the more credible testimony came from Kimberly, her parents, Detective Potter, and Detective Meoqui. And to some extent, the jury may have relied on defendant's admissions in his taped statement. Thus, defendant's attorney was not deficient for failing to file a motion for a new trial based on the weight of the evidence.
Even if trial counsel's performance was deficient, defendant failed to satisfy the second prong of Strickland, because defendant failed to establish that the deficient performance so prejudiced his defense that he was deprived of a fair trial and that but for his counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Assuming that trial counsel did in fact move for a new trial on the grounds that the jury's verdict was against the weight of the evidence, the trial court would have decided the motion pursuant to Rule 3:20-1.
Rule 3:20-1 states:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the 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.
A jury is free to credit or discredit a witness's testimony, in part or in whole, "and to consider the evidence before it in the light of human experiences and understandings." State v. Coleman, 46 N.J. 16, 43 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed. 2d 212 (1966); see also State v. Reyes, 50 N.J. 454, 464 (1967). "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). In this case, however, there was no such "obvious jury error." As we previously noted, the outcome of the trial rested primarily on the jury's credibility determinations, and the jury obviously concluded Kimberly was a credible witness.
Defendant also claims his trial counsel was ineffective because he failed to object to the following remarks made by the prosecutor in her opening statement:
Bear in mind what these people are going to have to come in to talk to you about. This topic is not easy for anyone to talk about. Think about what it would take for you as adults to talk about sex in a public setting with people that you don't know. You're not allowed to talk about the case, but go ahead back into the jury room later on, ladies and gentlemen, and talk about your last consensual sexual encounter.
No way! It's never going to happen. That's not what we do.
So, I ask you to think about what it's going to take for a girl who is now 12, not quite 13, to talk about something sexual that happened to her when she was 10 years old, something that she didn't understand, something that happened at an age where the next thing that she should have been thinking about when playing a game of hide-and-go-seek is not, did he mean to do that? It should have been, do I hide under the bed or do I go in the next room? Keep that in you minds, ladies and gentlemen, when that girl sits on that stand.
According to defendant, these remarks "went well beyond the facts [the prosecutor] intended to prove in good faith," included "an emotional argument based upon matters not in evidence and not intended to be offered into evidence," and were "a clear attempt to persuade the jury of the truthfulness of the upcoming testimony by the victim merely by virtue of the fact that it may be difficult to testify as to these matters in public."
Additionally, defendant contends his trial attorney should have objected to the following comments made by the prosecutor in her summation:
Counsel raised in his opening and his closing, again, that this is a case about character and jealousy and exaggeration and hysteria. It sounded like a great summer read, didn't it? Did you hear any of that?
. . . There was only one bit of exaggeration in this case, ladies and gentlemen, and it was Leslie's X-ray vision that she could see the entire apartment from her spot on the couch, that she could see through the door and see what's going on. Think about what you can see through an open door from down the hallway. She could see everything.
Defendant now argues these comments were objectionable because they were denigrating to the defense and referenced matters not in evidence.
Finally, defendant states his trial counsel should have objected when the prosecutor stated in her summation:
And, ladies and gentlemen, in the words of the defendant himself on the stand, particularly one of the last things that he said to you, when I asked him, did you tell Detective Meoqui that [Kimberly] was a liar? No, he said, she's not a liar. That's the biggest sign in the road. [Kimberly is] not a liar. That tells you which way to go.
Defendant argues these statements improperly suggested that defendant admitted his guilt because he did not refute the victim's allegations when, in fact, "defendant did not say that [Kimberly] was not a liar. He stated that he did not call her a liar which is quite different." Defendant claims that since the prosecutor referenced matters not in evidence, his trial attorney was ineffective for failing to object.
Once again, defendant has failed to prove both prongs of the Strickland/Fritz test. "A prosecutor in her opening statement may state only those facts that she intends to prove in good faith. She also may argue all inferences that properly may be drawn from those facts." State v. Timmendequas, 161 N.J. 515, 577 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). "[P]rosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant, or in collateral improprieties of any type, lest they imperil otherwise sound convictions." State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963). Still, "[t]he prosecution is afforded considerable leeway, within limits, in making opening statements and summations. Not every deviation on the part of the prosecutor requires reversal of the conviction or sentence." State v. Loftin, 146 N.J. 295, 386-87 (1996) (citations omitted). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). As noted by the Appellate Division:
[Courts] do not expect prosecutors to act in a manner appropriate to a lecture hall. A prosecutor may present her case forcefully within the bounds of advocacy established by decisional law. So long as a prosecutor bases her comments and inferences on facts in the record, what is said in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal. [State v. Roman, 382 N.J. Super. 44, 60 (App. Div. 2005) (internal quotations and citations omitted), certif. granted, 188 N.J. 219 (2006), appeal dismissed, 189 N.J. 420 (2007).]
Here, it is likely defendant's trial counsel did not object to the first two comments referenced by defendant because objections were not warranted. For instance, the statement made by the prosecutor in her opening statement did not go beyond the facts she intended to prove or attempt to persuade the jury that the victim's testimony will be truthful. Instead, it reminded the jury that the case involved a sensitive subject matter that may be difficult for a twelve-year-old girl to discuss in public.
We are also satisfied that the prosecutor's comment relating to a "good summer read" and her comment that Leslie had "X-ray vision" did not denigrate the defense as suggested by defendant. While "[i]t is well settled that prosecutors are not permitted to cast unjustified aspersions on the defense or defense counsel," State v. Rodriguez, 365 N.J. Super. 38, 50 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004), the prosecutor here made a permissible "vigorous and forceful closing argument," Frost, supra, 158 N.J. at 82, and asked the jury to consider the credibility of a witness. The prosecutor's comments did not rise to the level of an impermissible denigration of the defense. Cf. State v. Scherzer, 301 N.J. Super. 363, 446 (App. Div.) (noting it is improper for a prosecutor to characterize the defense as "outrageous" or "absolutely preposterous") (internal quotations omitted), certif. denied, 151 N.J. 466 (1997); State v. Acker, 265 N.J. Super. 351, 356 (App. Div.) (holding prosecutors are not permitted to characterize defense attorney and defense as "outrageous, remarkable, absolutely preposterous and absolutely outrageous"), certif. denied, 134 N.J. 485 (1993); State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993) (holding it improper for prosecutor, without support in evidence, to accuse defendant of conspiring with his counsel to conceal and distort the truth), certif. denied, 135 N.J. 468 (1994); State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) (holding that prosecutors are not permitted to tell jury that "'the defense's role in this case is to try to confuse you'").
While the comments noted above did not necessarily warrant an objection, the prosecutor's final comment made in summation was likely improper because it misstated defendant's trial testimony. In her summation, the prosecutor told the jury that defendant testified that Kimberly was "not a liar." The prosecutor then instructed the jury that since Kimberly was "not a liar. . . . [t]hat tells you which way to go." Defendant did not state, however, that Kimberly was "not a liar." Instead, defendant denied telling Detective Meoqui that Kimberly was a liar, stating "not at any time did I say she was a liar." Since the prosecutor referred to a statement that was not in evidence, it would have been reasonable for trial counsel to object to her statement. See State v. Harris, 156 N.J. 122, 195 (1998) ("The prosecution in its summation may suggest legitimate inferences to be drawn from the record, but it commits misconduct when it goes beyond the facts before the jury."), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001). However, not every departure from the facts necessarily calls for a reversal. State v. Bruce, 72 N.J. Super. 247, 252 (App. Div. 1962). "To reverse defendant's conviction, the prosecutorial misconduct must be so severe as to deprive defendant of a fair trial." Roman, supra, 382 N.J. Super. at 61. That did not happen in this case. The jury heard ample testimony from defendant's character witnesses who all stated defendant was honest and truthful, yet it still concluded defendant was not telling the truth when he denied the charges. Clearly, the jury had the capacity to decide the credibility of each witness for itself, and the jury obviously credited the testimony of Kimberly, E.Z., M.Z., Detective Potter, and Detective Meoqui, and likely considered the fact that defendant, in his statement to Meoqui, admitted to experiencing an "impulse" that caused him to touch Kimberly inappropriately. Thus, defendant has failed to show that any error by his attorney was so serious as to deprive him of a fair trial, or that the prosecutor's comments were so severe as to deprive him of a fair trial.
Next, defendant argues the court erred in failing to grant his application for a bill of particulars in full and also erred by not forcing the State to comply with its order to make every effort to narrow down the times and places of the alleged assaults. Indictment No. 03-07-00819 alleged sexual assault and endangering the welfare of a child "on or between January 1, 2002 and May 31, 2002." At a pre-trial hearing, defendant argued the vagueness of the dates made "it very difficult . . . to prepare a defense . . . because without more specificity [defendant] has no way of knowing was he even present at the location when these incidents were supposed to have occurred." In denying defendant's request for a bill of particulars, the motion judge stated:
I . . . can't order [the State] to produce something that [it] can't produce. If this young child cannot more narrowly . . . define when and where and under what circumstances, I can't compel her to do something she can't. I'm just telling you the window from January 1 to May 31st is not too broad of a window for cases such as this.
I do feel, however, that a 10-year [-]old could remember whether or not it was New Year's Day . . . if it's Easter recess, if it's . . . in between semesters. . . . It seems to me there ought to be some information that if it can be produced should be produced.
And as far as a bill of particulars is concerned, I wouldn't do any more than that. The most I would do is see if the State can narrow it down with respect to some events. . . .
I think the most I can do is . . . order the State to see if there are any identifying events . . . that might more narrowly defines dates, times, and places.
I want to make it clear that under [State in Interest of K.A.W., 104 N.J. 112 (1986)] a child may not have to if the child can't. And quite frankly I'm not going to order anybody to attempt to do something that they can't.
. . . [T]he State should examine the facts of the incidents carefully and make every effort to narrow down the times and the places. And if the dates and the times and locations cannot be ascertained, then as I've really ordered, the State should look for other identifying events, such as a death in the family, a birth of a child, a birth date, the beginning of a school year, a vacation, holidays, things of that nature. And, of course, if the State can't, it can't. You can't compel this child to make up something, and that's not what the defense wants, that's not what the State wants, and it's certainly not what the [c]court wants.
Rule 3:7-5 states:
A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.
"Granting an application for a bill of particulars is a discretionary matter with the court." State v. Hogan, 20 N.J. Super. 1, 6 (App. Div. 1952).
In K.A.W., supra, 104 N.J. at 116, the New Jersey Supreme Court addressed the sufficiency of a complaint which charged the defendant with sexual assault of a child occurring "'in January 1983 through August 1984.'" The Court first noted that young children often "cannot recall precise dates or even approximate times the way a normal adult can. Children of that age do not think in terms of dates or time spans. Unlike adults, their lives are not controlled by the clock or the calendar--at least, not as rigidly and surely not as consciously." Id. at 118. Still, "the State's interest in the vigorous prosecution of child molesters" must be balanced against "the accused's interest in receiving sufficiently adequate notice of the offense to permit him to prepare a defense." Id. at 119. Factors to consider in balancing the competing interests include:
[T]he length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; . . . the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense[;] . . . the age and intelligence of the victim[;] the extent and thoroughness of the prosecutor's investigative efforts to narrow the time frame of the alleged offense[;] and whether there was a continuous course of conduct. [Id. at 122 (internal quotations and citation omitted).]
As noted by the K.A.W. Court, this "list is simply illustrative. . . . and the weight to be accorded the factors will vary according to the circumstances of the case." Ibid. Thus,
[t]he 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. When the trial court is satisfied that these sources of information have been exhausted, it will then be in a position to strike the necessary balance to determine whether "fair notice" has been given.
[Id. at 122-23.]
Additionally, "[t]he fact . . . that an alibi defense might suffer in the face of an extended time frame does not constitute a sufficient basis for dismissal of a complaint in this context, where a 'number of occasions' of misconduct are alleged." Id. at 123. Consequently, the K.A.W. Court remanded the case to afford the State the opportunity to amend the complaint to charge the defendant for "'four or five occurrences'" instead of "an act of sexual assault," as he was originally accused. Id. at 123-24.
Here, defendant was accused of four instances of sexual assault by a child who was only ten years old at the time of the occurrences. Kimberly was never able to pinpoint a general time or date of the first three incidents; instead only recalling the activities and games she was participating in at the time. For instance, K.Z. noted that she and J.A. were jumping up and down on the bed when the first assault occurred; crawling around in tents when the second assault occurred; and playing a jumping game on a Saturday afternoon when the third assault occurred. Defendant asserts in his appellate brief that the State could have provided the date of the fourth incident because Kimberly stated it was the date she saw "E.T." at the movie theater and, had defendant known of the date, he could have prepared an alibi defense. First, this argument is unpersuasive because an alibi defense may not be helpful "where a 'number of occasions' of misconduct are alleged." K.A.W., supra, 104 N.J. at 123. This argument also lacks merit because defendant admitted, and multiple witnesses testified, that defendant was with Kimberly when she went to see the movie "E.T.," and it is not contested that defendant was with her earlier that day when Kimberly claims to have been assaulted by defendant.
Additionally, defendant admitted to touching Kimberly on at least two occasions in his interview with Detective Meoqui and in his formal taped statement. His defense did not depend on the precise dates of the assaults, rather, it was based on his intentions and whether the touching was accidental. Thus, a bill of particulars was not critical to defendant's case as he now argues, and the court's ruling was not an abuse of discretion.
Defendant next contends the court failed to compel a psychological examination of Kimberly and failed to conduct an in camera review of Kimberly's DYFS and school records, which defendant argues contain references to prior allegations of sexual assault upon Kimberly. At a pre-trial hearing, evidence was produced showing an individual was convicted of sexually assaulting Kimberly in Costa Rica when she was approximately two years old. Defendant also provided the affidavit of Rosa, Kimberly's grandmother, in which Rosa claimed that Kimberly wrongly accused her of touching her breast. Defendant sought to obtain DYFS and school records, as well as compel a psychological examination of Kimberly in an effort to further explore Kimberly's prior allegations, arguing that such evidence was relevant to her credibility. The motion judge ruled as follows:
[I]f it can be shown that those records are relevant to the issue of credibility, then I would conduct an in camera inspection. But if that information can be obtained through other sources, then I would want the other sources to be utilized.
Here, I understand the [DYFS] statement that was made was videotaped. It may not have been transcribed, but a copy of the video tape or the tape has been given to the defendant or through counsel to the defendant.
. . . [T]he defendant must advance some factual predicate which would make it reasonably likely that the DYFS files or the school files or records would bear fruit on the issue of credibility and not just that the defendant is saying, well, there might be something in there, I really don't have a real reason to say that there's something in there, not that he has to show me that there definitely is, but something more than what I have.
Here, the only thing I have really is the translated statement of [Rosa]. . . .
. . . [T]he statement alone does not in my view establish a factual predicate on which I would order the DYFS records to be turned over to me for an in camera review.
I probably should mention the . . . court proceedings in Costa Rica where this 2-year-old . . . was observed by her mother being sexually penetrated by someone and the [c]court there found that that someone indeed did sexually abuse that child.
That does not assist me in granting the relief . . . that the defendant seeks here. So, I'm going to deny that, without prejudice. If there was another statement, and the State is aware of it, and the defendant doesn't have it, I, of course, would want to look at that in camera, but I'm told that the only statement is a statement that the defendant has a video tape of.
The motion judge then denied defendant's request for a psychological examination, stating:
So, with no mental problems here, the child has not been shown to be abnormal or unusually influenced by anyone, such as her mother, I have nothing to show that the evaluations would turn up competent and probative evidence and that if that evidence were admitted and believed by a jury that it would refute or neutralize the incriminating evidence or impugn the credibility of either the child if she testifies, or the mother if she testifies. And, as I've indicated, there's not a scintilla of proof that the mother of this child is influencing her in any fashion to make false accusations or statements.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." See also Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347, 353 (1974); State v. Maben, 132 N.J. 487, 496 (1993). The essential purpose of confrontation is to secure for the defendant the opportunity of cross-examination, which is the principal means by which a witness's credibility is tested. Davis, supra, 415 U.S. at 315, 94 S.Ct. at 1110, 39 L.Ed. 2d at 353. Nevertheless, "the Confrontation Clause does not require the disclosure of any and all information that might be useful to a defendant." State v. Van Dyke, 361 N.J. Super. 403, 412 (App. Div.), certif. denied, 178 N.J. 35-36 (2003). In this case, defendant sought two types of confidential records: school records and DYFS records.
"A child's school records are confidential, and access to their contents is limited." State v. Krivacska, 341 N.J. Super. 1, 35 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002). Under some circumstances, however, such records may be "available to third persons with a sufficient legitimate interest or when the interests of justice require." Van Dyke, supra, 361 N.J. Super. at 412. For instance, a defendant's right of confrontation may trump a child's right of privacy "upon a showing of particularized need." Ibid.
Balancing the juvenile's right to privacy against the defendant's right to confrontation can be accomplished by an in camera court review of the records. "The party seeking an in camera inspection must advance some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." [Ibid. (quoting State v. Harris, 316 N.J.
Super. 384, 398 (App. Div. 1998) (internal citation and quotation omitted)).]
The denial of a defendant's request for disclosure of such evidence is reviewed under an abuse of discretion standard. See State v. Williams, 239 N.J. Super. 620, 626 (App. Div. 1990).
In the present matter, defendant did not set forth a factual predicate and, therefore, the court correctly refused to conduct an in camera review of the school records. All defendant presented at the pre-trial hearing was evidence of a sexual assault of Kimberly in Costa Rica and Rosa's affidavit, claiming they "lend support to another aspect of the defendant's position . . . which is that . . . this victim was previously a victim." Besides the fact that defense counsel was clearly unable to articulate the relevance of the evidence or a particularized need for the records, he also did not demonstrate the records would contain relevant information. Thus, the court did not err in denying defendant's request for an in camera review of Kimberly's confidential school records.
DYFS records are deemed confidential pursuant to N.J.S.A. 9:6-8.10a(a), in order "to encourage the reporting of child abuse and to facilitate the ability of witnesses and case workers to testify." N.J. Div. of Youth & Family Servs. v. T.H., 386 N.J. Super. 271, 276 (Ch. Div. 2006). Their confidentiality, however, is not absolute. Ibid. For instance, pursuant to N.J.S.A. 9:6-8.10a(b)(6), DYFS may release records to:
A court or the Office of Administrative Law, upon its finding that access to such records may be necessary for determination of an issue before it, and such records may be disclosed by the court or the Office of Administrative Law in whole or in part to the law guardian, attorney or other appropriate person upon a finding that such further disclosure is necessary for determination of an issue before the court or the Office of Administrative Law.
Defendant argues he was at least entitled to an in camera review of Kimberly's DYFS records. In State v. Cusick, 219 N.J. Super. 452, 454-55 (App. Div.), certif. denied, 109 N.J. 54 (1987), the defendant was accused of sexually assaulting an eight-year-old and argued that he was entitled to access of the child's DYFS records. The trial court conducted an in camera review of the records and determined the defendant was not entitled to the confidential records. Id. at 457-58. On appeal, we held the trial court properly refused to permit the defendant to inspect the files after determining "that the information was available elsewhere and that, regardless of its availability through other sources, the information was not determinative of any issues before the court or necessary for the conduct of the proceedings." Id. at 463.
In the present matter, defense counsel admitted he had a copy of Kimberly's videotaped statement, but argued he did not "have anything else that DYFS may have either in connection with this incident or in connection with any other incident which may or may not exist." Nevertheless, "the party seeking an in camera inspection must advance some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." Harris, supra, 316 N.J. Super. at 398 (internal quotations omitted). In this case, the trial court did not err in denying defendant's request for an in camera review of the DYFS files because defendant failed to establish a factual predicate for such a review. Similarly, it was within the court's discretion to deny defendant's request to require Kimberly to undergo a psychological examination.
Defendant also claims his seven-year sentence is manifestly excessive and should be reversed because the aggravating factors did not outweigh the mitigating factors. In sentencing defendant, the trial court found aggravating factors four, N.J.S.A. 2C:44-1(a)(4), and nine, N.J.S.A. 2C:44-1(a)(9), stating:
I also consider what are called aggravating factors and that certainly is at this point primarily aggravating factor number nine, is the need that this sentence for assaulting a child be sufficient to stop you and to stop others.
This [c]court, through the laws of this State, has as its primary goal, the protection of our children. No child, whether someone you know and love, whether someone you care for, or even a child you don't know, should ever have to be afraid that when they're with someone, a man or an adult, even when playing, that their body is touched and grabbed. No mother or father should have to be afraid that their child can't be with another adult, to always wonder if, as a parent, they have protected their child enough.
[Kimberly] has to now live for the rest of her life with what this has done to her emotionally. She's not physically hurt, but for the rest of her life know that even in the course of what you say was playing she was touched and rubbed in a way that was sexual, in a way that takes away her very innocence. This sentence has to reflect that not just to stop you, but to stop others.
The other aggravating factor that I use for sentencing is number four in the sense that . . . you did take advantage of her confidence and the confidence of her family. She and her mother, her father, all trusted you deeply, and you took advantage of that.
The court then found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) ("The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense."); eight, N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct was the result of circumstances unlikely to recur."); nine, N.J.S.A. 2C:44-1(b)(9) ("The character and attitude of the defendant indicate that he is unlikely to commit another offense."); and ten, N.J.S.A. 2C:44-1(b)(10) ("The defendant is particularly likely to respond affirmatively to probationary treatment.").
Upon balancing the aggravating and mitigating factors, the court noted "it's not just the numbers that apply when I evaluate the weight to be given. It's the quality of those factors, not just the quantity. And when I consider . . . the extraordinary [responsibility] that this [c]court [has], through the Legislature, [to] protect our children, a presumptive term of seven years will be imposed."
Appellate review of a sentencing decision requires three determinations: (1) "whether the correct sentencing guidelines . . . have been followed;" (2) "whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines;" and (3) "whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). An appellate court "will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
"In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court . . . consider[s] . . . aggravating [and mitigating factors]." N.J.S.A. 2C:44-1. These "factors are not interchangeable on a one-to-one basis. The proper weight to be given to each is a function of its gravity in relation to the severity of the offense." Roth, supra, 95 N.J. at 368. "[W]here mitigating factors are amply based in the record before the sentencing judge, they must be found. . . . [T]hey may be accorded such weight as the judge determines is appropriate." State v. Dalziel, 182 N.J. 494, 504-05 (2005). The trial court's exercise of discretion is entitled to "great deference" and should "'remain free from the fear of second guessing.'" Id. at 501 (quoting State v. Megargel, 143 N.J. 484, 494 (1996)).
In the present matter, defendant highlights the trial court's statement that he "was found guilty by this jury of the contact on numerous occasions against [Kimberly]." However, the trial court's sentence was not based on the number of times defendant sexually assaulted Kimberly. Therefore, even if the court improperly assumed defendant was convicted for numerous contacts instead of just one, that fact would not have changed its balancing of the aggravating and mitigating factors. Defendant's seven-year sentence for second-degree assault (count one) is neither unreasonable nor shocking. But we reverse and remand defendant's seven-year concurrent sentence on count two (third-degree endangering the welfare of a child) for imposition of a sentence within the limits of N.J.S.A. 2C:43-6(a)(3).
Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's convictions are affirmed, but we remand for resentencing on count two. We do not retain jurisdiction.