March 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-0077.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Carchman and Sabatino.
Following a jury trial, defendant L.C. was convicted of second-degree sexual assault by physical force or coercion, N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault on a related victim aged sixteen to eighteen years old, N.J.S.A. 2C:14-2-(c)(3)(a); and second-degree sexual assault while having supervisory or disciplinary power over a victim aged sixteen to eighteen years old, N.J.S.A. 2C:14-2-(c)(3)(b). After appropriate mergers, the trial judge sentenced defendant to seven years in State prison, with an 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to Megan's Law registration and parole supervision for life, N.J.S.A. 2C:43-6.4, together with mandated penalties, assessments and fees. Defendant appeals, and we affirm.
These are the facts adduced at trial. On May 25, 2005, A.C., aged sixteen, moved from Costa Rica to the United States to live with her mother, R.C., and her stepfather, defendant.
A.C. knew defendant from his previous visits to Costa Rica. The three lived together in defendant's apartment located in Union.
According to A.C.'s testimony, on the morning of June 4, 2005, A.C.'s mother left for work leaving A.C. in defendant's care. Defendant and A.C. were intending to go to defendant's place of work, a garage, to clean cars. Instead defendant drove to Home Depot and bought two sets of doorknobs. Defendant then drove back to the apartment, informing A.C. that they were going to change the doorknobs of her room and her mother's room. Once inside the apartment, defendant changed the doorknob to A.C.'s room with tools from a toolbox that he kept under A.C.'s bed. He then closed and locked the door.
Defendant started kissing A.C. on the cheeks. When A.C. yelled "no, no" defendant grabbed her by the shoulders and directed her towards the bed. When A.C. began to protest, defendant told her to keep quiet and threatened to hit her with a tool. A.C. tried to exit the room by telling defendant that she needed to use the bathroom, to drink water and that they could do this another day. Defendant stated that he knew that she wanted to escape so he escorted her to get a drink of water and chained the door of the apartment. He also stated that this was "his opportunity, and if he didn't do it that day, he wouldn't do it ever."
Defendant then took A.C. back to her room and forced her to remove her clothes by threatening to hit her. After A.C. removed all of her clothes, defendant threw her onto the bed, removed his clothes and began to kiss her all over her body and touch her breasts. A.C. continued crying and yelling, and defendant told her to be quiet. Defendant then grabbed her knees, forced her legs apart and performed cunnilingus causing her pain. Defendant also touched the outside and inside lips of A.C.'s vagina with his penis.
The assault ended when A.C. agreed to kiss defendant twice with her tongue if he allowed her to get dressed. On that day, A.C. was wearing a thong-type underwear and a pantiliner. While he got dressed, defendant told A.C. to fix her bed and change the doorknob. Because she wanted to prove that she was assaulted, A.C. arranged her plush toys all over the bed and switched the screws on the old doorknob. Defendant then took A.C. to a garage sale and bought her a T.V. Afterwards they went to the garage where defendant was employed. At approximately 4 p.m., A.C.'s mother picked up A.C. from the garage.
When A.C. entered the car, she started crying. A.C., responding to her mother's inquiries, told her mother what happened; her mother became very upset and telephoned a family friend, A.A. A.C.'s mother told A.A. that there was a "problem" with defendant, and she wanted to leave. A.A. and his wife met A.C. and her mother at defendant's apartment, where they packed some belongings and went to A.A.'s residence. A.C. and A.A. had a brief conversation about what happened. After, A.A., A.C. and her mother went to the Union Township Police Department where A.A. acted as an interpreter for A.C. and her mother. At the police station, they spoke to Detective Constantine Sedares. Detective Sedares, A.C., her mother and A.A. went to Trinitas Hospital where A.C. underwent a sexual assault examination.
After the examination, Detective Sedares received the sexual assault examination kit and A.C.'s clothing. A.C. also provided a formal statement to the police.
The following day, on June 5th, the police searched defendant's apartment and collected various pieces of evidence. A.C.'s underwear and pantiliner were submitted for forensic testing. A strong concentration of saliva was found on the underwear and pantiliner. DNA recovered from the panties matched A.C. and defendant's buccal swab. Also, the DNA test revealed unknown "peaks in the samples" that signified either the possibility of a third contributor or "artifacts or byproducts of the test."
During the trial, when the State called R.C., A.C.'s mother, to testify, the trial judge gave a "fresh complaint" instruction to the jury. After A.C.'s mother, the State called A.A. The trial judge did not give an additional "fresh complaint" instruction. A.A. indicated that he spoke with A.C.'s mother and went to defendant's apartment. He also stated that he spoke with A.C. and that A.C. "gave [him] a brief conversation, and of what had happened at the house." A.A. then noted that he interpreted for the victim as she spoke to the police, a social worker and a nurse at Trinitas Hospital. Finally, A.A. read a portion of the statement A.C. gave to the police, which the trial court ruled as admissible under N.J.R.E. 806.
Defendant did not testify at trial but asked the trial judge to provide a jury instruction regarding his constitutional right not to testify. During the summation, the Prosecutor stated, without objection by defense counsel:
Ladies and Gentlemen, he is not sorry about it. He doesn't think what he did was wrong. And I suggest to you that if he could be honest about it, without suffering any consequences, he would tell you that he was entitled to do what he did.
Defendant was convicted and this appeal followed.
On appeal, defendant raised the following arguments:
THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATIONS BY VIOLATING DEFENDANT'S FIFTH AMENDMENT PRIVILEGE
DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE COMMENTS IN THE PROSECUTOR'S SUMMATION WAS INEFFECTIVE ASSISTANCE OF COUNSEL AND THE REMARKS SHOULD STILL BE DEEMED TO BE PREJUDICIAL
THE DEFENSE COUNSEL'S FAILURE TO FILE A PRE-TRIAL MOTION COMPELLING THE PROSECUTOR TO CONDUCT DNA TESTING OF ALL EVIDENCE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL
THE ADMISSION OF TESTIMONY FROM WITNESS [A.A.] WITHOUT A "FRESH COMPLAINT" EVIDENTIARY HEARING WAS IMPROPER AND THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL
We address point I. The prosecutor's comments during summation, alluding to defendant's failure to testify, were inappropriate. The State candidly concedes in its responding brief indicating that it was "admittedly improper."
The right against self-incrimination is firmly rooted not only in the United States Constitution, U.S. Const. amend. V., but as part of New Jersey's common law jurisprudence. "From its beginnings as a State, New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right." State v. Reed, 133 N.J. 237, 250 (1993)(citing State v. Fary, 19 N.J. 431, 435 (1955)). Although not found in the New Jersey Constitution, the rule has been codified by statute, N.J.S.A. 2A:84A-19, and by the Rules of Evidence, N.J.R.E. 503. In fact, no comment may be made nor negative inference drawn when a defendant chooses to exercise the privilege. N.J.S.A. 2A:84A-31; N.J.R.E. 532.
In assessing whether the prosecutor's comments warrant reversal of the conviction, in the absence of an objection of counsel, we are guided by the mandate of the Supreme Court regarding plain error:
Further, our standard of review dictates that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. The harmless error standard thus requires that there be "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)). [State v. R.B., 183 N.J. 308, 330 (2005).]
Our review of the record leads us to conclude that the overwhelming evidence supporting the conviction together with the judge's charge to the jury confirming defendant's right not to testify warrant affirming the conviction.
In his summation, defense counsel commented:
I'm giving him advice, relying on your ability to follow judge -- Judge Donohue's instructions that the fact that the defense -- defendant does not testify cannot in any way be used against him, cannot enter into your deliberations, and cannot color your judgment in this case.
Thereafter, the judge instructed the jury and said:
Now, as you know, the defendant elected not to testify at trial. It is his constitutional right to remain silent. You must 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 to be innocent even if he chooses not to testify.
Finally, the evidence of defendant's guilt was substantial. The victim's statements to her mother, the police and at trial were consistent; the DNA supported the victim's version; and the victim's utilizing the doorknob screws and stuffed animals together with defendant's out-of-court statements support the verdict. Although we do not condone the prosecutor's comments, we are satisfied that under the totality of the circumstances, there was no error clearly capable of producing an unjust result. R. 2:10-2; State v. Ingram, 196 N.J. 23, 49 (2008).
Defendant also asserts that the testimony of A.A. was hearsay and should not have been admitted without a limiting instruction as to A.A.'s testimony as being "fresh complaint" testimony. See N.J.R.E. 803(c)(2). Furthermore, defendant asserts that a N.J.R.E. 104 hearing was required before the jury could consider his testimony. Our review of the A.A.'s testimony leads us to conclude that he was neither a "fresh complaint" witness nor was his testimony hearsay.
A.A.'s testimony was limited and narrow. As a family friend, he was called by R.C. to provide assistance. As a trial witness, A.A. described his discussion with the victim and revealed no details. He described his serving as an interpreter for the police when they questioned the victim and further described a brief conversation with defendant. He also indicated that he interpreted for the victim while she was in the hospital. The only substantive comment related by A.A. was that the victim said: at one time while we were naked in the bed [defendant] said I have been waiting for years for this opportunity. He said that he remembered that when we went to the beach in Costa Rica, he was checking my body out.
The State asserts that this testimony was admissible under N.J.R.E. 803(a)(2), as the victim's prior consistent statement offered to rebut an express charge of recent fabrication, improper influence or motive. Furthermore, under N.J.R.E. 806, such testimony would have been admissible to support the credibility of a hearsay declarant after the declarant's credibility had been attacked, in this case not directly, but through the cross-examination of A.C.'s mother. We consider this limited inquiry and statement by A.A. to fall within the scope of N.J.R.E. 803(a)(2), rather than comprising a fresh complaint statement. The judge presumably premised the admission on the predicate rule -- N.J.R.E. 806 -- and we conclude that was not error. Particularly noteworthy is the absence of any testimony by A.A. as to the details of the various statements made directly to him or in his capacity as a translator.
Finally, defendant raises a number of arguments as to the ineffective assistance of counsel. He asserts that counsel failed to object to the prosecutor's statement regarding his failure to testify and then claims ineffective assistance of counsel for failure to request DNA testing of all of the evidence. The State counters by asserting that these issues are outside of the trial record and should be reserved for a Petition for Post-Conviction Relief. R. 3:22-1 to -22. See State v. Preciose, 129 N.J. 451, 460 (1992). We conclude that these discrete issues require different resolutions.
Post-conviction relief (PCR) is "New Jersey's analogue to the federal writ of habeas corpus ... [and i]s a safeguard to ensure that a defendant is not unfairly convicted." State v. Afanador, 151 N.J. 41, 49 (1997)(citations omitted). "Ordinarily, PCR allows a defendant to challenge the legality of a sentence or final judgment of conviction by presenting arguments that could not have been raised on direct appeal." State v. Rue, 175 N.J. 1, 13 (2002). Any matter previously expressly adjudicated cannot be raised. R. 3:22-5.
As to the failure to object to the prosecutor's comments, we have concluded that the comments were not plain error. An objection would not have changed the result. If counsel had objected, the judge would have given a curative instruction consistent with the instruction that he later proffered in his charge to the jury. That being the case, defendant cannot meet the second prong of Strickland and ultimately the result would have been no different. We conclude that this issue can be resolved on the record before us, and there was no ineffective assistance of counsel.
As to the second issue, we reach a different procedural result. We are unable to discern on this record whether the failure of counsel to request additional DNA testing was ineffective assistance of counsel, and we leave that issue for consideration on a petition for post-conviction relief.
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