April 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARNELL STEWART, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Parker and LeWinn.
Camden County Indictment Number 05-08-3205 charged defendant Darnell Stewart with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree criminal attempt/sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2). Defendant was tried to a jury between June 12 and 21, 2006. At the close of the evidence, defendant moved for a mistrial and for a judgment of acquittal; the trial judge denied both motions. The jury thereafter convicted defendant of all charges.
The State moved to have defendant sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). At sentencing, the trial judge granted the State's motion, denied defendant's renewed motion for a mistrial and his motion for a new trial, and sentenced defendant to an aggregate term of sixty years with an 85% period of parole ineligibility.
On appeal, defendant raises two claims of trial error and contends that his sentence is excessive. For the reasons that follow, we remand for re-sentencing in accordance with N.J.S.A. 2C:44-5(a)(2), but otherwise affirm.
The pertinent trial evidence may be summarized as follows. On October 23, 2004, at approximately 7:00 a.m., thirty-eight-year-old B.S. was returning to her home in Camden after an evening in Atlantic City. She alighted from a bus at the intersection of Broadway and Chelton, approximately four blocks from her house. B.S. testified that she routinely got off at this stop, about "eight or nine times a week," and regularly took a "shortcut" that involved crossing over railroad tracks. On this occasion, however, B.S. stated she did not walk along the tracks because "[s]omebody was trying to get [her] attention in back of [her]."
B.S. testified that a man, later identified as defendant, called out to her three times and said "'[y]o, ho, wait up,'" and "'[c]an you hold on? I want to talk to you,'" but she rebuffed him, stating, "'I'm going home, I'm not interested in talking to you.'" B.S. testified that she had never seen defendant before, and described him as being six-foot-two-inches tall with a ponytail, "slanted" eyes, "a little beard," and wearing "a black hoodie [and] two-tone [blue] jeans[.]"
After defendant called out to her three times, B.S. began "walking fast... [b]ecause he was getting really close" to her. At this point, she "felt him hit [her] on the side of [her] face and then he grabbed [her] by [her] neck...." B.S. stated that defendant hit her twice, presumably with his fist, and that she "felt the blood coming down on the side of [her] face." He told her not to scream, and "grabbed [her] by the neck and took [her]... to the walkway... under [Route] 676, under the [underpass]."
B.S. testified that once beneath the underpass, defendant took her behind a support pillar and ordered her to "pull [her] pants down and bend over," and she complied by pulling her pants down "halfway." B.S. stated that it was noisy under the underpass because of the "[c]ars riding back and forth on the freeway... on... 676," but that she screamed and tried to make noise.
At the point when B.S. partially removed her pants, defendant "rubb[ed] his penis... between [her] butt and [her] vagina and tr[ied] to put it in[.]" B.S. stated, "I felt his head going into my vagina, but not all the way, and that's when I made an attempt to run." However, because her pants were at her knees, B.S. only ran approximately twenty feet before tripping.
B.S. testified that after she tripped, defendant "grabbed [her], he hit [her] [and]... punched [her] like a punching bag, splitting [her] lip; he stomped [her]." B.S. stated that he then said to her "'I should just cut off your nipples or your titties, I should just stab them.'"*fn1 Defendant then "dragged [her] right back to the spot and persisted [i]n telling [her] to bend over again." B.S. testified that she complied and that she stopped making noise because of the beating she had just received.
B.S. further testified that after she bent over, defendant once against rubbed up against her buttocks in an attempt to achieve an erection, but "[t]his time he couldn't get it up...." B.S. stated that she did not feel his penis go inside of her during the second attack, and that he said to her, "'[b]itch, I should have killed you,'" before walking away. B.S. thought the entire attack lasted approximately thirty minutes, but that it "[r]eally seemed like it was a long time."
B.S. watched defendant walk away; she then "started screaming for somebody to help [her] again." She began walking in the same direction as defendant, hoping to see someone who could assist her. Defendant was not in sight when B.S. reached the road, and she continued home.
Upon arriving home, B.S. called 911. The police arrived and took her to the hospital where she underwent a rape kit examination and met with a victim advocate. During the rape kit examination, nurse Lisa Easterby took external skin swabs and pictures of the injuries, and performed an internal vaginal examination and swab.
B.S. suffered a split eyebrow, a split lip, bruising to her back and chest and swelling of her face. It took B.S. approximately one month to heal fully. B.S. testified that she also suffered emotional injury in that she was "scared" and "nervous," had difficulty communicating with people, experienced trouble concentrating, did not want any men to touch her and felt like every man who resembled defendant may be her attacker. B.S. testified that she eventually had to leave her job because of the emotional effects of the assault.
Approximately two months later, on December 1, 2004, B.S. gave a statement to Detective Monica Davenport of the Camden City Police Department's Special Victims Unit. On April 25, 2005, B.S. was shown a photo array by another detective in the police department. B.S. positively identified defendant's picture from the photo array.
Camden City Patrolman Rahsan Tatem testified that he was dispatched to B.S.'s home on the morning of October 23, 2004, along with his partner, Officer Will Ramos. Upon arriving at the house, Tatem observed that B.S. "was upset, her shirt was dirty,... as if someone had been tugging on it, kind of off her body." He also saw that B.S. "had cuts... around her lips and around her eye and a little bleeding."
Tatem stated that when B.S. told him she had been sexually assaulted, he and his partner contacted their sergeant and the paramedics. After B.S. was taken to the hospital, Tatem and Ramos conducted an investigation of the area where B.S. said the attack had occurred. They observed no visible evidence of an assault or struggle.
Lisa Easterby testified that when she met B.S. at the hospital she observed that B.S. was "seriously injured in her facial area. She was swollen. She had deep cuts that did require stitches. She was bleeding.... She was quite disheveled... and she quite upset, quite hysterical...."
Easterby further testified that she took a cheek swab from B.S. for DNA. She also performed a visual inspection of B.S.'s body for injuries, using a black lamp to search for dried secretions on her skin; she swabbed the dried secretions found on B.S.'s right scapula, right buttocks and right calf. The nurse also performed an external and internal genital inspection using a culpascope,*fn2 and took vaginal and cervical smears.
Easterby observed the following injuries on B.S.: an open laceration on the mouth about one centimeter by one centimeter...; and above the right eyebrow a two centimeter open laceration; on the back of the body there were multiple scrapes and superficial lacerations, a lot of them - - most of them... on the arms; a big scrape on one of the legs, a superficial laceration on the other leg as well.
The nurse observed no signs of genital or vaginal injury. She further testified that a penis need not be fully erect, nor be fully entered into a vagina, for pre-ejaculate serum, which contains sperm, to enter the vaginal canal and "migrate upwards towards the cervix."
Detective Davenport testified that following her December 1, 2004 interview with B.S., she received information from the New Jersey State Police Laboratory (NJSP Laboratory) that DNA from B.S.'s rape kit had been matched to the DNA of an individual named Darnell Stewart. Davenport then arranged with the Camden County Sheriff's Department Identification Bureau for a photo array, which included a photo of defendant. The photos for the array were selected through computer generation. Davenport described the procedures followed in presenting the photo array to B.S., and confirmed that B.S. chose defendant's picture from the array.
Following B.S.'s identification, Davenport met with defendant and obtained a cheek swab, which was subsequently confirmed as a DNA match by the NJSP Laboratory.
Sergeant Detective Timothy Gallagher of the Camden County Prosecutor's Office testified that on June 15, 2006, he too obtained a cheek swab from defendant for identification purposes. The sample was then sent to the NJSP Laboratory for analysis, which was performed by Christopher Huber.
Huber, a scientist in the NJSP Laboratory's Office of Forensic Sciences, was qualified at trial as an expert in DNA analysis. Huber testified that he first became involved in this case on January 18, 2005, when he received B.S.'s cheek, vaginal and cervical swabs. Huber developed DNA profiles from all of the slides, and was able to create two separate profiles: one for B.S. and one for an unidentified male. Huber was then informed by Bill Rochen, another forensic scientist in the NJSP Laboratory, that the unknown male sample matched the DNA profile of an individual named Stacey Moore.
Huber testified that on June 15, 2006, he received defendant's cheek swab from Detective Gallagher. He then compared the DNA profile created from defendant's swab to the DNA profile established for Stacey Moore. Based on his analysis of the profiles, Huber was able to conclude "within a reasonable degree of scientific certainty [that] the DNA profile from Stacey Moore and [the] DNA profile from [defendant] [were] from the same individual."
After the State rested its case, and defendant advised the court that he did not wish to testify, defense counsel moved for a mistrial, arguing that the trial judge misapplied the Rape Shield Law*fn3 in barring cross-examination of B.S. regarding her possible prior sexual encounters. Defendant also moved for acquittal on all counts in the indictment.
The trial judge denied defendant's motion for a mistrial stating, "[T]here is absolutely no foundation or basis in law or in fact for the granting of a mistrial...." The judge denied defendant's motion for dismissal of the kidnapping charge as it related to removal, but granted it as related to the matter of confinement for a period of time. The trial judge then denied defendant's motion to dismiss all other charges. Defendant presented no evidence.
On appeal defendant raises the following issues for our consideration:
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
A. USE OF ALIAS
B. APPLICATION OF N.J.S.A. 2C:14-7 THE RAPE SHIELD STATUTE
THE COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE
The issue of defendant's alias first arose prior to trial when defendant asked the trial judge to redact the NJSP Laboratory report containing the name Stacey Moore, and to substitute defendant's name in that document. The trial judge asked the prosecutor to discuss the matter with Huber to determine if the reports could be "rerun" with defendant's name.
The following day, after conferring with Huber, the prosecutor informed the trial judge that altering reports was against NJSP Laboratory policy. The judge then instructed counsel that the word "alias" was to be avoided, due to its "pejorative... connotation," but noted further that "[t]he law does not say that all references to having used two different names should be avoided."
Defendant lodged a standing objection to the use of the name Stacey Moore. During Huber's testimony regarding his DNA analysis, the witness mentioned the name Stacey Moore several times. At the conclusion of Huber's testimony, the prosecutor read into the record a stipulation providing in part that, if called as a witness, Bill Rochen of the NJSP Laboratory "would testify that a DNA profile from the vaginal and cervical swabs obtained from B.S. matche[d] the DNA profile of Stacey Moore," and that, upon learning this, Rochen contacted Huber to make further comparisons. Immediately following this stipulation, the trial judge instructed the jury that it should not consider the fact that the State Police were in possession of defendant's DNA sample as prejudicing defendant in any way. Defendant raised no objection to this instruction.
The trial judge conducted a charge conference at the close of the evidence. Defendant did not request a charge relative to the "Stacey Moore" references made either during Huber's testimony or in the stipulation. Neither the prosecutor nor defense counsel referred to the name Stacey Moore in summations.
Following the jury verdict, defendant moved for a new trial, arguing that he was prejudiced by the fact that the jury heard evidence that he was known by a different name. The trial judge noted that the jury had never heard the word "alias," and denied defendant's motion on the following basis:
[T]he only reason that the jury knew that a different name had been used by the defendant is because the DNA sample that was provided by the defendant, Darnell Stewart, after a prior conviction, had been given under a different name.
[T]herefore, in terms of the evidentiary foundation and the chain of custody and everything else that would have been necessary for the admissibility of that evidence, there's really no way around that particular problem, other than my directing a witness to testify untruthfully....
[B]ut,... it became clear to the Court that it was improper for me to direct the witness to testify in a manner that was not truthful....
I want to emphasize that this was a very different situation involving the use of another name than what generally occurs. Generally speaking, it's a completely superfluous and unnecessary reference to the use of another name, done sometimes for the purpose simply of engendering prejudice to the defendant.
Here, it was absolutely integral to the offering of the evidence of the DNA sample that connected this defendant to this particular crime....
We recognize the "well-settled" principle that "'alias names should be kept from the jury unless relevant for some purpose....'" State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988) (citation omitted). "However, the majority of decisions involving this issue hold that the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated [such as] where such names have been intentionally offered as indicia of guilt." Id. at 73.
Here, the name of Stacey Moore was never referred to or cited as defendant's "alias." Nothing in the record indicates that the name Stacey Moore was purposely interjected in order to create an inference of defendant's prior criminal activity or guilt of the crimes charged.
Matching the DNA in the name of Stacey Moore to that of defendant was critical to the State's case. As noted, the trial judge had no authority to require the State to alter an official laboratory report by substituting defendant's name for that of Stacey Moore. Such an alteration would have required Huber to perjure himself if he were compelled to acknowledge that the altered report was his original report.
Under the circumstances, we conclude that the introduction of the name Stacey Moore did not have the capacity to "le[a]d the jury to a result it otherwise might not have reached," and therefore, did not result in an "unjust verdict." State v. Bankston, 63 N.J. 263, 273 (1973).
Defendant's argument regarding the trial judge's application of the Rape Shield Law, N.J.S.A. 2C:14-7, first arose during a pre-trial Wade*fn4 hearing on the victim's identification of defendant from the photo array. During the cross-examination of Detective Davenport, defense counsel raised the possibility of a separate sexual encounter:
[DEFENSE COUNSEL]: Okay. Number three looked like the guy that attacked her under the railroad tracks or the guy that had sex with her?
[PROSECUTOR]: Objection, Judge.
DET. DAVENPORT: We're talking about a rape, correct?
THE COURT: Okay. The objection to the form of the question is sustained.
[DEFENSE COUNSEL]: Okay.... [W]hen you were interviewing [Ms. B.S.], she told you that the man that attempted to - - the man that attacked her rather, was unable to penetrate her, correct?
[PROSECUTOR]: Objection, Judge. This is outside the scope of a Wade Hearing.
THE COURT: Sustained.
.... [DEFENSE COUNSEL]: Well, Judge, actually, it's our theory that there w[ere] two separate incidents here because when this detective interviewed the so-called victim in this case..., Ms. B.S. said I was never penetrated by this man.
What I'm attempting to point out to the Court is that if there's any intercourse that occurred between... Ms. B.S. and [defendant], it occurred on an earlier date -.... -- and that there was a separate attack underneath the railroad tracks and in fact, the procedure used was so suggestive in this case that she identified [defendant] as her assailant when, in fact, he was the individual who had sex with her on an earlier date.
The prosecutor contended that if defendant intended to raise a defense that he "had sex with the victim prior to the sexual assault," it was defendant's obligation to make an application under N.J.S.A. 2C:14-7(a). In response, defense counsel acknowledged that it was "obvious" that defendant "had sex with the victim," but stated that the issue was when that sexual encounter occurred. Counsel argued further that the Rape Shield Law did not apply because there was no dispute over the fact that defendant and the victim had engaged in a sexual encounter. Counsel could not state, however, whether the "alleged sexual activity [occurred] on a consensual basis," because he was "waiting for the victim to testify" and he "hop[ed] to establish that at cross-examination."
N.J.S.A. 2C:14-7 provides, in pertinent part:
a. In prosecutions for aggravated sexual assault, [or] sexual assault,... evidence of the victim's previous sexual conduct shall not be admitted or reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing.... After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If a court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly material and meets the requirement of subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted.... The defendant may then offer evidence under the order of the court.
d. Evidence of the victim's previous sexual conduct with the defendant shall be considered relevant if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of. [N.J.S.A. 2C:14-7(a),(d).]
Despite defendant's non-compliance with the notice and hearing requirements of N.J.S.A. 2C:14-7(a), the trial judge stated that she would hold a hearing on the following day if defendant wished to pursue it. The judge further stated that if defendant chose not to "avail himself of the procedures under [the statute]," then defendant's only option would be to simply argue to the jury that... it would be impossible for the crime to have been committed because he didn't have an erection or he didn't ejaculate or didn't leave any genetic material without going... to the next step and saying [that] they had sex on some prior occasion. As long as you stay away from any suggestion that they had sex on a prior occasion, then I don't think that the [R]ape [S]hield statute applies.
The trial judge reiterated this ruling the following day and offered defendant the opportunity for a hearing, stating: "[T]he [c]court stands absolutely willing right this very moment to have hearing under the Rape Shield Law." Defendant declined, however, stating that "at the conclusion of the case [he was] going to be making an application to be able to make reference to certain items of evidence and logical inferences to be drawn therefrom or a lack of evidence."
In arguing his motion for a mistrial, defendant claimed that the judge had applied the Rape Shield Law too broadly, adding, "I don't think the Rape Shield would prevent me from arguing that under the facts of this case there... may have been previous consensual sexual activity as much as three days ago." The trial judge reminded counsel that she had offered defendant several opportunities for a Rape Shield hearing, and that he had declined to follow the procedure. The judge stated: "If you had evidence or expected to produce evidence that three days before... the two of them had consensual sex... that is the opportunity that I afforded you."
Defendant's stated intent was to cross-examine State witnesses about whether there "may have been previous consensual activity as much as three days ago." Thus, defendant clearly sought to explore "the victim's previous sexual conduct" which would only be admissible, if at all, following "a hearing in camera to determine the admissibility of the evidence." N.J.S.A. 2C:14-7(a). The trial judge offered defendant an opportunity for such a hearing during trial. Despite his proffer of what he hoped to establish regarding the victim's prior sexual activity, however, defendant declined the judge's offer.
Defendant now argues that the manner in which the trial judge applied the Rape Shield Law prevented him from "show[ing] that the sexual assault probably did not occur when, where, and under the circumstances stated by... [B.S.]. The defense wanted to establish through cross-examination of [the State's witnesses]... that... [B.S.]'s version was not credible."
This argument ignores the fact that the trial judge specifically ruled that defendant was "free to argue that it [was] physiologically impossible for him to have contributed any DNA on [that] occasion...." The judge only precluded defendant from arguing that he and the victim had engaged in prior consensual sexual activity, as such a claim would be subject to the notice and hearing procedures under N.J.S.A. 2C:14-7(a). Under the circumstances, we reject as without merit defendant's argument that the manner in which the trial judge applied the Rape Shield Law precluded him from arguing his theory of the case to the jury. R. 2:11-3(e)(2).
Finally, we address defendant's argument that his sentence is manifestly excessive. Specifically, defendant argues that by finding aggravating factor number six (the extent and severity of defendant's prior record) applicable, N.J.S.A. 2C:44-1(a)(6), and also granting the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the trial judge engaged in "double counting [which] is excessive under an abuse of discretion standard." We disagree.
The trial judge found that three other aggravating factors applied to defendant under N.J.S.A. 2C:44-1(a), in addition to number six: number one (the nature and circumstances of the offense); number three (the risk the defendant will commit another offense); and number nine (the need to deter defendant and others). The trial judge found no mitigating factors applicable. Our review of the record convinces us that the judge's analysis of the aggravating and mitigating factors was "based upon competent credible evidence in the record...." State v. Roth, 95 N.J. 334, 364 (1984).
Pursuant to the State's motion, the trial judge then proceeded to determine whether defendant was eligible for sentencing as a persistent offender under N.J.S.A. 2C:44-3(a), which provides:
A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The trial judge found that defendant met the statutory criteria. He was thirty years old at the time of sentencing and had eight prior indictable convictions, the most recent of which was within the last ten years. Pursuant to State v. Pierce, 188 N.J. 155, 169 (2006), "once the court finds that [the] statutory eligibility requirements are met, the maximum sentence to which defendant may be subject... is the top of the extended-term range."
The trial judge weighed the four aggravating factors and determined that defendant should receive a term of sixty years on the first-degree aggravated sexual assault charge and on the first-degree kidnapping charge, and concurrent fifteen-year terms on the second-degree sexual assault and attempted sexual assault charges.
Pursuant to N.J.S.A. 2C:43-7(a)(1), a defendant who has been determined eligible for extended term sentencing under N.J.S.A. 2C:44-3 may be sentenced to a term of years "which shall be between 30 years and life imprisonment[,]" for first-degree kidnapping and/or first-degree aggravated sexual assault. Thus, defendant's sixty-year sentence was well within the extended-term range for which he was clearly eligible.
However, we note that the trial judge improperly imposed two extended terms on defendant, in violation of N.J.S.A. 2C:44-5(a)(2), which provides: "Not more than one sentence for an extended term shall be imposed." This statutory limit is violated even where, as here, the two extended terms were imposed concurrently. State v. Latimore, 197 N.J. Super. 197, 223 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985). Therefore, we remand for re-sentencing in accordance with N.J.S.A. 2C:44-5(a)(2). In all other respects, the judgment on appeal is affirmed.