November 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY EASTMEAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-09-1198 and 01-10-1291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Wefing, Parker and Yannotti.
Defendant Gregory Eastmead appeals from judgments of conviction entered on May 7, 2004 under two separate indictments. We affirm defendant's convictions and sentence but remand for entry of an amended judgment of conviction.
The judgment in Indictment 01-09-1198 was entered after a jury found defendant guilty on three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; three counts of second degree sexual assault, N.J.S.A. 2C:14-2b; and three counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. After the appropriate mergers and an evaluation by the Adult Diagnostic and Treatment Center (ADTC), defendant was sentenced to an aggregate term of twenty years at the ADTC in Avenel.
The judgment on Indictment 01-10-1291 was entered after defendant pled guilty to one count of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a. On this indictment, he was sentenced to a fifteen-year term at Avenel, concurrent with the sentence imposed on Indictment 01-09-1198.
On September 6, 2000, the mother of one of the three nine-year-old victims in this case, overheard two of the victims saying that they had to do something about Gregory. Gregory was the mother's sister's twenty-one-year-old boyfriend. The mother asked the girls what they were talking about and they initially said "nothing." Ultimately, the girls disclosed that three of them were victimized by defendant, who played a game of "Go Fish" with the children, during which he molested them.
The day after the mother's conversation with the children, September 7, 2000, she reported it to the police and that evening Trenton Detective Dennis Shuster interviewed two of the girls on videotape. The third girl was interviewed on September 8. That interview was also videotaped.
Defendant was subsequently located and taken into custody.
After he was advised of his Miranda*fn1 rights, he gave a formal statement in which he acknowledged playing the game "Go Fish" with the three girls and molesting them. He described fondling the girls, but denied penetration.
The three victims testified at trial and identified defendant. The mother also testified, along with the officers who participated in the investigation.
In this appeal, defendant argues:
THE JURY CHARGE FAILED TO DISTINGUISH DIGITAL PENETRATION, AN ESSENTIAL ELEMENT OF THE GREATER OFFENSE OF AGGRAVATED SEXUAL ASSAULT, FROM TOUCHING, AN ELEMENT OF THE LESSER-INCLUDED OFFENSE OF SEXUAL CONTACT
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MISTRIAL WHEN A WITNESS INTERJECTED PREJUDICIAL OTHER-CRIME EVIDENCE IN VIOLATION OF N.J.R.E. 404(b) AND DEFENDANT'S RIGHT OF CONFRONTATION UNDER U.S. CONST. AMENDS. VI, XIV; AND N.J. CONST. ART. I, ¶¶ 1, 9, 10
DETECTIVE MCKEOWN TESTIFIED TO MEDICAL FINDINGS BEYOND THE SCOPE OF HER QUALIFICATIONS AS AN EXPERT IN SEXUAL-ASSAULT INVESTIGATIONS
THE COURT ERRED IN ALLOWING THE JURORS TO TAKE NOTES WITHOUT FOLLOWING THE MANDATES OF R. 1:8-8(b) AND THE CASE LAW THAT ENSURES A FAIR TRIAL. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE SENTENCE IS EXCESSIVE BECAUSE THE COURT IMPROPERLY WEIGHED THE AGGRAVATING FACTORS AND FAILED TO CONSIDER ALL RELEVANT MITIGATING FACTORS
THE IMPOSITION OF MULTIPLE LAW ENFORCEMENT OFFICER'S PROTECTION FUND PENALTIES WAS ILLEGAL. (NOT RAISED BELOW)
In his first point, defendant argues that the court did not properly charge the jury because it did not include an instruction on the difference between "penetration" and "touching," which resulted in his conviction of the more serious offense of aggravated sexual assault.
During the charge conference, defense counsel raised questions regarding certain aspects of the charge but did not request a charge distinguishing "penetration" from "touching" or "contact." Defendant is required to challenge instructions under Rule 1:7-2 by objecting before the jury retires. Such an objection would allow the court to cure the charge if there has been an error. Where there is failure to object, it may be presumed that the instructions were adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection to a charge is also indicative that trial counsel perceived no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973). Consequently, we would reverse only if we find plain error. R. 2:10-2.
Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). In reviewing a trial judge's instruction to the jury, we must examine the entire charge to determine whether it was ambiguous or misleading in the context of the trial, thereby prejudicing defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960).
Here, defendant was charged with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and second degree sexual assault, N.J.S.A. 2C:14-2b. To prove the first degree offense, N.J.S.A. 2C:14-2a requires the State to demonstrate three elements beyond a reasonable doubt: (1) defendant committed an act of sexual penetration; (2) the act was committed purposely; and (3) on a victim younger than thirteen years old.
To prove the second degree offense, N.J.S.A. 2C:14-2b requires that the State prove beyond a reasonable doubt that:
(1) defendant committed an act of sexual contact; (2) the act was committed purposely with the intent to degrade or humiliate the victim or sexually arouse or gratify the defendant; and (3) on a victim younger than thirteen years old, and defendant was at least four years older than the victim. The critical element distinguishing the two crimes is penetration as opposed to contact or touching.
The court essentially gave the model charge which defined "penetration" and stated:
Now, according to the law, sexual penetration means vaginal intercourse. It could mean anything from cunnilingus, fellatio or intercourse between persons or in this case insertion of the hand, finger or object into the anus or vagina either by the defendant or upon the defendant's instructions. That's what we call sexual penetration.
The slightest penetration is sufficient. Any amount of insertion, however slight, constitutes penetration. The depth of insertion is not relevant.
This portion of the instruction quoted the model jury charge almost verbatim. The court continued with the following instruction which is not included in the model charge:
That means if you find from all of the evidence presented beyond a reasonable doubt that there was digital penetration, i.e. penetration by the defendant's finger of the outer part of the female genitalia, that is sufficient to establish penetration under the law the first thing, the first element of [the] offense.
The court later instructed the jury on "sexual contact" or "touching:"
Sexual contact in this context means an intentional touching . . . of the victim by the defendant either directly or through clothing of the victim's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant.
Intimate parts means the following bodily parts: Sexual organs, genitalia or genital area, anal area, inner thigh, groin, buttocks or breast of a person.
The instruction on "touching" followed the model charge almost verbatim.
Defendant contends that the court's instruction was "fatally flawed" because it failed to sufficiently distinguish between "penetration" and "sexual contact." According to defendant, the instructions provided by the court would allow for conviction on either charge "by an actor's touching of the outer female genitalia." We disagree.
Here, the trial court substantially followed the model jury charges in giving the instructions on both "penetration" and "sexual contact." Moreover, in expanding upon the definition of "penetration," the court made the distinction clear. In State v. J.A., 337 N.J. Super. 114 (App. Div.), certif. denied, 169 N.J. 606 (2001), we approved a charge on "penetration" which stated:
The depth of insertion is not relevant. This means that if you find from all of the evidence presented beyond a reasonable doubt that there was penile penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law. [J.A., supra, 337 N.J. Super. at 119.]
The charge provided in this case is consistent with J.A. and is sufficient to distinguish between "penetration" and "sexual contact" or "touching."
In J.A., we referenced the Final Report of the New Jersey Criminal Law Revision Commission and its citation to the Commentary to the 1953 Model Penal Code Draft. Id. at 120. The Commentary states:
The chief issue which has arisen in defining the behavior to be treated as rape is whether to require proof of something more than "slight penetration" of the outer female genitalia. It is settled law that the crime can be completed without orgasm or complete penetration of the male organ into the vagina. Predominantly the present statutes call for "actual penetration" or "any penetration however slight." Under either formula it is held that the slightest penetration of the outer part of the female genitalia is sufficient; it need not be shown that the male organ reached the vagina. [Ibid. (citing Model Penal Code § 207.4 cmts. (Tentative Draft No. 4, 1953)).]
Here, the trial judge's charge reflected J.A. in the instruction that digital penetration included "penetration by the defendant's finger of the outer part of the female genitalia." The charge, therefore, sufficiently indicated that sexually aggravated assault required "penetration" of the outer area of the vaginal opening. The focus remains on the degree of penetration and where such penetration must occur. In short, there was no plain error in the jury charge.
Defendant next argues that the trial court erred in denying his motion for a mistrial after the mother who initially overheard the girls' conversation testified that she met defendant and his father on the street and asked the father if he knew what his son had done. Defendant maintains that this testimony violated N.J.R.E. 404(b), which precludes prejudicial other-crime evidence.
Defense counsel objected to the mother's testimony on the grounds of hearsay. The court sustained the objection and told the witness that she should not repeat any comments made by anyone else to her. On continued questioning by the prosecutor, the witness again began to say what defendant's father told her. Another objection was raised by defense counsel and the court again instructed the witness not to tell the court what anybody else said. Nevertheless, the witness stated, "I'm not saying, but he made me -- he made it look as if he knew what his son had done to me and -- ." Defense counsel objected again, but the witness continued, "- like it happened before." The court then admonished the witness to follow the instructions and that she could not tell the court what anyone said or "how he reacted verbally."
Defense counsel moved for a mistrial. The court responded: "rather than the nuclear device of a mistrial, [the witness's remark] does not strike me as being so prejudicial, and I'll take care of it with an instruction." Thereafter, the court gave a curative instruction, explaining hearsay and why it was not admissible. The court then instructed the jury to disregard the witness's statement.
Rule 3:20-1 governs mistrial motions and provides that a trial judge shall not declare a mistrial unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." Such a determination is best made by the trial judge "who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984).
It is more appropriately within the trial judge's purview to weigh the error and its effect, and decide whether an instruction to the jury might cure any prejudicial effect flowing from the error. Id. at 646-48. The trial court's decision is granted great deference on appeal and is reviewable under an abuse of discretion standard. Ibid.
Defendant argues that the curative instruction was not sufficient to avoid undue prejudice to defendant. He maintains that N.J.R.E. 404(b) precludes "evidence of other crimes, wrongs or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." In reviewing the record respecting the mother's testimony, we are satisfied that there was no testimony related to "other crimes, wrongs or acts." N.J.R.E. 404(b). Her attempt at making the statement was short circuited by defendant's objections and the court's instructions. Moreover, the court's charge and instructions to disregard the witnesses' comments were sufficient to cure any possible prejudice from the mother's statement.
Defendant argues that Detective Tracey McKeown testified beyond the scope of her qualifications as an expert in sexual assault and that she improperly addressed the ultimate issue in the case.
In a hearing outside the presence of the jury pursuant to N.J.R.E. 104, McKeown was qualified as an expert, based upon her training and fourteen years experience in the prosecutor's Child Abuse and Sexual Assault Unit.
Prior to McKeown's testimony, defense counsel "opened the door" to the issue of forensic evidence of the sexual assaults by cross-examining Detective Schuster regarding the absence of forensic evidence. At that point, the trial court noted:
The question has turned the doorknob, if not totally opened the door, and if it goes any further in terms of forensics and what kind of investigation was conducted, that is subject to the kind of testimony that the proposed witness can testify to . . . It was not relevant as I understood it originally proposed, but if [defense counsel] is approaching the so-called inadequacies of the investigation, [the prosecutor] is going to be permitted to show that they were not inadequate for the subject matter . . . .
It was in response to defendant's cross-examination of Detective Shuster that McKeown testified in response to the prosecutor's question on direct examination as to whether in her experience there had been occasions of digital penetration when the victim's hymen was not lacerated. McKeown responded, "The absence of evidence does not mean that there was not penetration, no." The trial court followed up with a question: "It's your experience, I take it from that last question, that there can be digital penetration without laceration of the hymen, is that the conclusion." Defense counsel immediately objected but the court allowed the witness to answer and she stated, "There can be digital -- allegations of digital penetration with no trauma whatsoever." The court then asked, "But can there be, in your experience, in your understanding, digital penetration that can occur without laceration of the hymen?" McKeown answered, "Yes."
Defendant argues that this testimony related to medical findings that McKeown was not qualified to render. During the trial, however, McKeown testified that she had "medical evaluation training," which teaches the importance of medical evaluations and how to observe such evaluations. McKeown testified that physical examinations of victims must be performed within seventy-two hours of the assault in order to collect viable forensic evidence. Here, physical examinations were conducted, but not within the seventy-two hour period.
We have carefully reviewed McKeown's testimony and we are satisfied that she did not testify beyond her expertise. The questions directed to her were specifically addressed to her experience. With her training and fourteen years experience investigating child sexual abuse, the witness's answer was well within the scope of her expertise. Moreover, it was defendant's question to Detective Schuster that opened the door to testimony relating to the conduct of the investigation and the purported absence of forensic evidence. State v. Corsaro, 107 N.J. 339, 346 (1987) (holding that when defense counsel induced an error, defendant should be precluded from challenging the testimony allegedly outside the scope of the witness's expertise).
The trial court extensively instructed the jury that it was not bound by McKeown's testimony and that they were the sole determiners of the facts. Under all of the circumstances presented, we find no prejudicial error here.
Defendant contends that the trial court improperly allowed the jurors to take notes during the trial and failed to adhere to Rule 1:8-8(b), in that he failed to instruct the jury regarding note taking and the role of notes during their deliberations. Since there was no objection at trial, this issue is subject to the plain error rule. R. 2:10-2.
Rule 1:8-8 states:
Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.
Here, after the court delivered its opening comments to the jury, one juror asked if the jurors could take notes. The court responded:
That is an issue the court can permit. This is not a long trial, so I was not going to require you to -- I was not going to offer you that opportunity. If you feel that you would rather take notes, I'll permit you to take notes.
The judge asked the jurors whether they would feel more comfortable taking notes and three responded affirmatively. The judge then advised the jurors that they would be permitted to take notes:
All right. Here is what happens with notes; you don't have to take notes. If you want to take notes, you take notes. They are not evidence, they are merely your assistance for your recollection. So I'll permit the jury to take notes during the trial. And you can use them in your deliberations, but they're not evidence; hey, I wrote this down here, this is true. That is not the way it works. It is for your edification and your recollection on matters that you want to recollect. If you don't want to take notes, you can sit there and just pay attention to the testimony.
Following these brief instructions, the court excused the jury for the remainder of the day. At that point, the court asked whether either counsel had any matters they wished to bring to the court's attention. Neither counsel remarked on the note-taking.
When trial resumed the following week, the assistant prosecutor requested a side bar to remind the court that it had permitted the jurors to take notes and, as a result, some jurors had entered the court room with their own paper. In addition, the assistant prosecutor informed the court that the prior instruction regarding note-taking was "off-the-cuff." The court agreed to provide additional instruction and inquired whether either attorney had anything additional to discuss. Neither attorney responded. The court then provided full instructions to the jury on note-taking.
Nevertheless, defendant now argues that the court should not have permitted the jurors to take notes because of the negative effect of the practice. In support of his argument, defendant cites Wigler v. Newark, 125 N.J. Super. 179, 182-83 (App. Div. 1973), in which we observed that note-taking tends to distract jurors from the evidence. Defendant, therefore, maintains that allowing the jurors to take notes was prejudicial error.
We note that the rules of court have changed since Wigler was decided. Rule 1:8-8(b) was adopted in 1998 to standardize juror note-taking. In State v. Jumpp, 261 N.J. Super. 514, 527 (App. Div.), certif. denied, 134 N.J. 474 (1993), we held that in criminal cases, juror note-taking may be permitted in special situations when the judge sets forth the reasons for allowing it. Here, the judge did not specifically articulate such reasons but did advise the jurors that the notes could be used to assist their recollections. Most importantly, defendant did not object to the note-taking on the first day of trial when the juror raised the question or on the second day of trial when the prosecutor reminded the court to instruct the jurors on note-taking. Defendant points to no specific prejudice resulting from the juror note-taking and we find no plain error here.
Defendant argues here for the first time that the trial court did not properly instruct the jury regarding defendant's right not to testify at trial. Because the issue was not raised below, it, too, is subject to the plain error rule. R. 2:10-2.
The trial judge gave essentially the model charge on defendant's election not to testify. Defendant objects, however, to the court's inclusion of the word "even" in the last sentence of the charge:
Now, I'm sure that you have noticed in this case that Mr. Eastmead has not elected to testify at trial. It is his constitutional right to remain silent. You should not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussions in any manner or at any time.
The defendant is entitled to have the jury consider all evidence presented at trial and he is presumed innocent even if he chooses not to testify until that point in time when you find otherwise collectively. (Emphasis added).
We have carefully reviewed the entire charge and we find no indication that the trial judge placed undue emphasis on the word "even" in the last sentence of the charge. Accordingly, we find no plain error. R. 2:10-2.
Defendant was sentenced to an aggregate term of twenty years, well within the range for the first degree charges of which he was convicted. State v. Roth, 95 N.J. 334, 365 (1984). The court properly identified the aggravating and mitigating factors and weighed them accordingly. State v. Hodge, 95 N.J. 369, 379-80 (1984). In short, we find no merit in defendant's sentencing arguments. R. 2:11-3(e)(2).
Finally, defendant argues that he was improperly sentenced to pay three separate penalties of $30 to the Law Enforcement Officer's Training Equipment Fund (LEOTEF). The State agrees and so do we. Only one LEOTEF penalty should have been imposed for each indictment. The judgment of conviction is, therefore, remanded for amendment to correct this error.
Defendant's conviction is affirmed; the judgment is remanded for amendment with the respect to the LEOTEF penalty.