On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0497.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Defendant Gerald Pohida was charged under Middlesex County Indictment No. 04-04-0497 with two counts of kidnapping, N.J.S.A. 2C:13-1b (counts one and five); two counts of sexual assault, N.J.S.A. 2C:14-2c (counts two and seven); criminal sexual contact, N.J.S.A. 2C:14-3b (count three); two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts four and eight); and aggravated sexual assault, N.J.S.A. 2C:14-2a (count six). Defendant was tried to a jury, which found him guilty on all counts. The court imposed an aggregate sentence of thirty years of incarceration with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on June 14, 2006. For the reasons that follow, we affirm.
We briefly summarize some of the evidence presented at the trial. In October 2003, a local police department received information that L.M., a thirteen-year-old female, was having an inappropriate relationship with defendant, who was forty-one years old at the time. The police investigated the allegations, and L.M. gave the police a statement. L.M. said that she first began to communicate with defendant in 2002 over the internet and had engaged in sexual activity with him on various dates from June 2003 through October 2003.
At trial, L.M. testified that she first met defendant in person at a mall in June of 2003. They walked around the mall, sat on some benches, and talked. Several days later, defendant picked up L.M. in his automobile. They drove around for a half hour and L.M. performed oral sex upon defendant. Thereafter, defendant drove L.M. to a garage where he instructed her to get on her knees and perform oral sex upon him. On three subsequent occasions, L.M. performed oral sex upon defendant.
Thereafter, defendant wanted to meet some of her friends.
L.M. brought A.S., her friend and classmate, to meet defendant. A.S. was twelve years old at the time. Defendant took them for a drive in his car. L.M. performed oral sex upon defendant while he drove. L.M. and A.S. then switched seats and A.S. performed oral sex upon defendant.
L.M. testified that she and defendant had their final meeting in October 2003. Defendant picked up L.M. at school. She was wearing her school uniform. Defendant drove her to the home of Jim Dalian (Dalian), an individual with whom they had communicated on the internet. L.M. performed oral sex upon both men, and Dalian performed oral sex on her.
A.S. also testified. She said that she met defendant through L.M. and communicated with him several times over the internet. A.S. stated that she and L.M. met defendant in person on August 8, 2003. A.S. testified that, after defendant picked them up in his car, she and L.M. performed oral sex upon defendant.
Detective John Fitzsimmons (Fitzsimmons) testified that, the day after L.M. provided her statement to the police, he responded to defendant's home with other police officers. They arrested defendant and searched his home. They seized defendant's computers, various components for the computers, his cell phone, and his car.
Fitzsimmons said that defendant was not advised of his Miranda*fn1 rights when he was arrested; however, Fitzsimmons read defendant his Miranda rights after they arrived at police headquarters. Thereafter, defendant was questioned by the police and he responded to their questions. Defendant admitted meeting
L.M. but denied that they ever engaged in any sexual activity. Fitzsimmons also testified that the search of defendant's car revealed several items, including directions to Dalian's house and a stained towel. Tests performed by the New Jersey State Police revealed that the towel contained defendant's semen.
Dalian testified that he "met" L.M. on the internet. Dalian pled guilty to second-degree sexual assault and he had been sentenced to six years of incarceration. Dalian was incarcerated at the time of the trial. He stated that he communicated with defendant on-line. Dalian said that defendant and L.M. visited him in his apartment in October 2003, and L.M. was wearing a "kind of a school uniform[.]" L.M. undid her bra and Dalian touched her breasts. According to Dalian, defendant asked him if he would like L.M. to perform oral sex upon him. Dalian agreed and L.M. performed oral sex "for a little bit." L.M. also performed oral sex upon defendant, while Dalian performed oral sex upon L.M.
Defendant testified on his own behalf. Defendant admitted that he communicated with L.M. over the internet. He said that L.M. had discussed her family, cutting herself and suicide. Defendant further testified that they met in person on several occasions. Defendant denied that he and L.M. had an inappropriate relationship. He said that he had not engaged in sexual acts with L.M. or A.S. Defendant stated that he only met A.S. on one occasion, when he picked L.M. up from school, and A.S. never entered his car. He also denied that he met Dalian prior to the trial.
Defendant additionally testified about the towel that the police found in his car. He said that he had a hereditary condition that made it painful for him to urinate or ejaculate.
He stated that he would use the towel in his car to relieve some of the pain he felt due to this condition.
As stated previously, the jury found defendant guilty on all charges. He appeals and raises the following issues for our consideration:
DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT SHOULD HAVE BEEN GRANTED, BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS REQUEST FOR COUNSEL.
A. If Defendant asserted his right to counsel as described by Kerri Pohida, his statement must be suppressed.
B. The trial court initially found Mrs. Pohida credible, a finding entitled to deference.
THE TRIAL COURT ERRED IN FINDING, AFTER THE MICHAELS HEARING, THAT L.M.'S TESTIMONY WAS UNTAINTED BY THE POLICE INTERROGATION.
THE STATE'S REPEATED IMPROPER COMMENTS ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION IN OPENING STATEMENT AND CROSS-EXAMINATION, IN THE FACE OF OBJECTIONS BY COUNSEL AND ADMONISHMENTS BY THE TRIAL COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL, AND WERE INCURABLE BY THE COURT'S INSTRUCTIONS.
THE STATE'S INFLAMMATORY ARGUMENTS IN SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT, AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. The Prosecutor unfairly maligned defense counsel.
B. The Prosecutor improperly vouched for witnesses.
C. The [P]rosecutor misstated the facts.
THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY DENYING HIM THE OPPORTUNITY TO PRESENT MEDICAL RECORDS CORROBORATING HIS DEFENSE, AFTER THE STATE OPENED THE DOOR BY IMPLYING THAT THE RECORDS DID NOT EXIST.
THE TRIAL COURT DID NOT ADEQUATELY RESPOND TO THE PROBLEM OF SLEEPING JURORS, COSTING DEFENDANT A FAIR TRIAL.
THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL, BY EXCLUDING HIM FROM THE COURTROOM DURING AN ARGUMENT ...