On appeal from the Superior Court of New Jersey Law Division, Monmouth County, Indictment No. 06-07-1522.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sapp-Peterson and Messano.
Defendant was convicted of two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts two and three).*fn1
He was sentenced to concurrent five year terms to the custody of the Department of Corrections with 85% thereof to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
On this appeal, defendant argues:
POINT I THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE REGARDING THE USE OF FRESH COMPLAINT EVIDENCE AND THE USE OF DEFENDANT'S STATEMENT AND, THEREFORE, DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised by trial counsel below)
A. THE TRIAL JUDGE COMMITTED PLAIN ERROR IN DELIVERING A FUNDAMENTALLY-FLAWED CHARGE REGARDING THE USE OF FRESH COMPLAINT TESTIMONY
B. THE TRIAL COURT COMMITTED PLAIN ERROR IN CHARGING THE JURY THAT DEFENDANT'S STATEMENT TO POLICE MAY BE CONSIDERED FOR CREDIBILITY PURPOSES WHEN DEFENDANT DID NOT TESTIFY
POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE SEXUAL ASSAULT NURSE EXAMINER, SUN BORDEN, OVER DEFENSE COUNSEL'S OBJECTION, TO PRESENT DETAILED TESTIMONY REGARDING THE ALLEGED SEXUAL ASSAULT AND IN ADMITTING OUT-OF-COURT STATEMENTS BY J.P. AS FRESH COMPLAINT TESTIMONY
A. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S OBJECTION AND IGNORING HIS REQUEST FOR A LIMITING INSTRUCTION REGARDING SUN BORDEN'S TESTIMONY
B. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING DETECTIVE SGT. LOUIS FUNDORA TO TESTIFY AS TO STATEMENTS MADE BY J.P. TWO DAYS AFTER THE INCIDENT DURING A POLICE INVESTIGATION
C. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING THE CUMULATIVE TESTIMONY OF PETER [H], CHRISTOPHER [H], AND SGT. JOSEPH ROGERS UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE
POINT III DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR AND DEFENSE COUNSEL ALLOWED J.P. TO TESTIFY VISIBLY HOLDING ROSARY BEADS AND WHEN SHE ENGAGED IN EMOTIONAL OUTBURSTS AND VOMITING IN THE PRESENCE OF THE JURY (Not raised by trial counsel below)
POINT IV THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO CURE THE PROSECUTOR'S COMMENTS IN SUMMATION REGARDING DEFENDANT'S ELECTION NOT TO TESTIFY (Not raised by trial counsel below)
POINT V THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO CHARGE LESSER-INCLUDED OFFENSES AND IN FAILING TO RECORD A TELEPHONIC CHARGE CONFERENCE REGARDING THE DECISION AS TO WHETHER LESSER-INCLUDED OFFENSES WOULD BE CHARGED (Not raised by trial counsel below)
We are satisfied that the aggregate of errors, even if not individually warranting reversal, combine to require reversal because defendant did not receive a fair trial.
The alleged victim, J.P., testified that, while spending the 2005 Labor Day holiday weekend in the Highlands with her boyfriend, Christopher H. at the home of his father, Peter H., she and Christopher went to dinner at approximately 7:30 p.m. at the Sugar Shack, a local restaurant. They were seated at a table behind defendant, who was dining with a group including his wife and daughter. Defendant and Christopher knew each other as both were Highlands volunteer firefighters and J.P. had previously been informally introduced to defendant.
Following their dinner, J.P. and Christopher were invited by defendant to join his group. Defendant bought alcoholic drinks for everyone at the table. Defendant's wife and child subsequently left the restaurant, but defendant stayed and continued to have drinks with J.P. and Christopher. The three remained for about an hour and then left for another Highlands bar, Off the Hook, where defendant again purchased drinks for the couple.
J.P. testified that, while they were at Off the Hook, defendant had remarked about her breasts to another male patron and told "some guy" to look at her "boobs." Defendant also told Christopher that J.P. was "hot" and that he would be "taking her away from [Christopher] by the end of the night."
The group then returned to the Sugar Shack and continued to drink. J.P. testified that she danced with a group of people, though no one in particular, while there. Christopher would occasionally be pulled onto the dance floor by J.P. He testified that he was jealous of his girlfriend's dancing with others and that they got into a disagreement over it. Christopher also testified that he told defendant that he was upset watching J.P. dance, that defendant had told him "he would take care of it," and that defendant went out onto the dance floor where J.P. was dancing. J.P. testified that defendant had approached her on the dance floor and told her that Christopher had sent him because he "didn't want [J.P.] dancing with other people."
Christopher also testified that at some point during the night he informed defendant that he was going to the restroom while J.P. was still on the dance floor. When he returned "she wasn't on the dance floor any more and she wasn't around." In the interim, J.P. noticed that Christopher was not at the bar area, and asked defendant if he knew where Christopher had gone. Defendant told her that he "went home." Upset that Christopher had left, she grabbed her purse and left the restaurant and walked "in the direction towards" the H. residence. When Christopher returned to the bar area, he asked defendant if he had seen J.P., and defendant responded that he had not. Christopher claimed defendant told him to stay at the Sugar Shack while he looked for J.P.
After leaving the Sugar Shack, J.P. stopped at the apartment of her friend, Melissa Soden. Soden testified that in the early morning hours of September 3, 2005, she and her boyfriend, Bradford Jennings, were at home. She stated that J.P. arrived, said she was "very upset," and appeared to have been crying. J.P. told Soden and Jennings that she was looking for Christopher, and the three of them unsuccessfully tried contacting him on Jennings' cell phone. After staying at Soden's apartment for approximately ten minutes, J.P. left.
J.P. then proceeded to the H. home, where she encountered Peter H. who instructed her to remain in the home while he searched for his son. J.P. phoned Soden, informing her that she was at Christopher's home and that he was not there. She then left the house to continue searching for him.
Peter H. testified that he found Christopher at the Sugar Shack and that his son informed him that he was looking for J.P. At that time, defendant approached the two of them and was standing next to them when he told Christopher that J.P. was at home. Defendant then invited himself to join them at their home for a beer, at which point Peter told defendant it was not a "good idea" and to go home. Defendant then rode away on his bicycle from the pair, preceding them up Bay Avenue towards the fire house.
Meanwhile, J.P. continued searching for Christopher by heading back to the Sugar Shack. She observed defendant approaching her on his bike from the direction of the Sugar Shack and asked him whether he had seen Christopher. Defendant replied in the negative. At this time, J.P. went back to Soden's apartment, and defendant followed her there. Soden testified that, while there, she saw defendant "put his arm around" J.P.'s waist, then remove it when Soden entered the room and J.P. looked at him "with disapproval." Soden stated that she, Jennings, and J.P. again tried to contact Christopher. When their attempts proved unsuccessful, Soden and Jennings offered to walk J.P. back to the H. home. However, defendant interceded and assured them that he was a "buddy" of Christopher's and that he would take J.P. to Christopher. After J.P. left, Soden noticed that J.P. had left her cell phone in the kitchen.
After leaving the Soden apartment, defendant suggested that Christopher "might be in the firehouse" and that even if he was not, J.P. could use the phone there since she did not have her cell phone. Once inside the firehouse, defendant directed J.P. to follow him to an area behind the bar, where he said the phone was located. J.P. followed defendant behind the bar and once there, she testified that he "pushed [her] up against the bar," so that she was trapped by defendant, who was standing behind her.
J.P. testified that defendant pulled up her skirt and unsuccessfully tried to penetrate her vagina and anus "in both areas" with his penis. She attempted to move away, while telling him "no" and "stop." She eventually managed to "move around" and face defendant. At this point, according to J.P., defendant penetrated her vagina digitally, and "actually put his fingers inside [her] vagina," while she continued to tell him to "stop," and that she wanted to find Christopher. She then attempted to escape the bar area, but defendant blocked her exit. J.P. testified that defendant "got down on his knees" in front of her, "slid" her ...