On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 06-02-0191-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Gilroy.
On February 1, 2006, a Bergen County Grand Jury indicted defendant, R.F., charging him with multiple counts of aggravated sexual assault against his daughter, A.G., born in May 1988. The indictment charged defendant with two counts of first-degree aggravated sexual assault in the City of Hackensack between July 1, 2003 and July 31, 2003, N.J.S.A. 2C:14-2a(2)(a) (counts one and two); two counts of first-degree aggravated sexual assault in the Township of River Vale between December 1, 1999 and December 30, 2003, N.J.S.A. 2C:14-2a(2)(a) (counts three and four); and one count of second-degree sexual contact by impairing or debauching the morals of a child in the City of Hackensack and/or the Township of River Vale between December 1, 1999 and July 31, 2003, N.J.S.A. 2C:24-4a (count five).
Following a trial, a jury convicted defendant of all counts. The court merged count five into count one, and imposed two consecutive sixteen-year prison terms, on counts one and two, each with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and two concurrent sixteen-year prison terms, subject to similar periods of parole ineligibility, on counts three and four. Defendant is subject to Megan's Law, with parole supervision for life. N.J.S.A. 2C:7-1 to -19.
On appeal, defendant raises the following legal arguments:
POINT I - THE TRIAL COURT COMMITTED HARMFUL ERROR BY MISAPPLYING THE DOCTRINE OF RES GESTAE TO THE ALLEGED ACTS COMMITED BY THE DEFENDANT IN JAMAICA AND IN PATERSON BECAUSE THESE ALLEGED ACTS CONSTITUTED OTHER CRIMES EVIDENCE.
POINT II - THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE DEFENDANT'S PURPORTED OUT-OF-COURT STATEMENT, "K.F. DOES IT ALL THE TIME," AS A DECLARATION AGAINST INTEREST.
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
POINT IV - THE PROSECUTOR VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT UNDER THE FIFTH AMENDMENT AND THE DEFENDANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT BY INTENTIONALLY ELICITING TESTIMONY FROM A.G. ALLEGING A CRIMINAL ACT BY THE DEFENDANT THAT WAS NOT DISCLOSED IN PRETRIAL DISCOVERY.
POINT V - COMMENTS MADE TO THE JURY BY THE TRIAL COURT AFTER THE DEFENSE RESTED PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
POINT VI - THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S RIGHTS UNDER THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT BY PRECLUDING THE DEFENSE FROM ADMITTING EVIDENCE THAT THE DEFENDANT STATED, "I DON'T KNOW WHAT YOU'RE TALKING ABOUT," WHEN A.G. ATTEMPTED TO ENSNARE THE DEFENDANT.
POINT VII - IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 32 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
In light of the record and prevailing law, we conclude that the admission of other crimes evidence without an appropriate jury instruction as to the use of that evidence, in addition to remarks by the prosecutor that constituted misconduct, individually and cumulatively prejudiced the fairness of defendant's trial, casting doubt on the propriety of the jury verdict. Consequently, we are constrained to set aside the verdict and remand for a new trial.
Over two days, the court addressed pretrial motions. Defendant moved to bar references to uncharged crimes or other bad acts, both within and outside the time period covered by the indictment; and to bar reference to A.G. contracting a sexually transmitted disease (STD).*fn1
During the first day of pretrial motions, the court permitted testimony of alleged sexual assaults by defendant against A.G. within the time period covered by the indictment; two in Jamaica, and one in the back of a car in defendant's auto body shop in Paterson, even though those crimes were not charged in the indictment. The court granted defendant's motion to bar other alleged sexual assaults that took place outside the time period covered by the indictment. The court gave the following reasons for its rulings:
I've had an opportunity to hear oral argument as to the testimony as to events that occurred in Paterson and maybe while on vacation in the islands.
The argument is that these occurred between 1999 and 2003 within the dates governed by the indictment.
Defense counsel argues that they are separate crimes and should not be part of the res gestae.
I'm going to permit testimony as to these acts that occurred as long as they occurred between the dates of 1999 and 2003 set forth in the indictment. Had they been incidents that occurred either before 1999 or after 2003 they clearly would be separate crimes but if they occurred . . . during the time frame that's in the indictment I will permit testimony as part of the res gestae.
The defense sought to bar A.G.'s testimony that her father told her that he also had sexual relations with K.F., another of defendant's daughters and A.G.'s half-sister. Defense counsel informed the court that K.F. had made a statement to the police denying that she was ever sexually abused by her father. The court denied defendant's motion, permitting the testimony based on N.J.R.E. 803(c)(25), a statement against interest.
On the second day of pretrial motions, the judge denied defendant's request to use a tape recording of a conversation he had had with the victim. During the call, which the prosecutor's office monitored, A.G. told defendant that she had contracted an STD, and because he was the only person with whom she had sexual contact, he should seek medical attention. Defendant denied knowing what A.G. was talking about. The court concluded that the recording was hearsay and did not permit it into evidence.
A.G. was the only witness who testified at trial. Defendant and A.G.'s mother separated when A.G. was approximately a year old. Defendant subsequently married, and had several children, including K.F. A.G. visited defendant three or four times a month, and became friends with K.F., who was close in age to A.G.
When A.G. was seven or eight years old, defendant began to touch her breasts and vagina, and had her touch his penis. When she was eleven or twelve years old, defendant began to have sexual intercourse with her. She testified that defendant often had intercourse with her, but she could only recall the details of six specific occasions when defendant inserted his penis into her vagina. On two of these occasions, defendant also induced her to perform oral sex on him, and on another occasion, defendant performed oral sex on her.
During the first day of A.G.'s testimony, the prosecutor asked her what, if anything, her father said to her to encourage her to participate in sexual relations with him. She responded:
"Like I said he was like, 'Take it. Stop being a baby. It doesn't hurt that bad. It's not that bad.' And he was saying how my sister [K.F.] does it all the time and that there's nothing wrong."
Defense counsel objected and requested a mistrial, arguing that no instruction could cure the substantial prejudice. The prosecutor asked for a limiting instruction. The judge denied the motion for a mistrial, and stated that he was not going to instruct the jury "at this point." The judge adjourned the trial for the day.
At the beginning of the next trial day, the court again heard argument from the parties as to the admissibility of the statement as well as the need for a limiting instruction. The court then instructed the jury as follows:
Just before we broke yesterday you heard testimony from the witness, [A.G.], that during one of the alleged sexual assault[s] by her father he made certain statements to her relating to [K.F.]. During that described incident[,] the defendant is alleged to have said to [A.G.] that [K.F.] does this and it's no big deal and [K.F.] does it all the time.
Now, your recollection of what was said may be different from my recollection as to what was said. And guess what? You're the judges of the facts. You have to decide what was said in your recollection when you're deliberating. It's not my recollection, it's your recollection individually and collectively that will govern the testimony.
Now, that testimony, there was an objection and I overruled the objection. That testimony was admitted for a very limited purpose. It was not introduced to show that the defendant is predisposed to commit a particular crime and may not be used for that purpose. Likewise it was not introduced to show the defendant ever committed or was even charged with any act alleged. It may not be used for that purpose. The defendant denies committing another act of aggravated assault upon anyone. Instead the testimony was permitted merely to establish the context of the event, to explain the nature of the event and to present a more complete picture to you, the jury, of the alleged crime in this particular case that we're hearing in this courtroom.
You're permitted to consider the time, place and circumstances of the acts as alleged by the State which form the basis of the charges. Again I want it to be very clear the testimony relating to the alleged statements by the defendant, [A.G.], relating to [K.F.], was introduced as part of alleged conduct that occurred during the incident in question. This testimony was admitted only for a very limited purpose, to explain [A.G.'s] conduct during and ...