July 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-4654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Parker and Yannotti.
Defendant James Wright appeals from a judgment of conviction entered on January 13, 2004 after a jury found him guilty on five counts of second degree sexual assault, N.J.S.A. 2C:14-2c(4), and two counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. A report done by the Adult Diagnostic and Treatment Center (ADTC) found that defendant was eligible for sentencing to ADTC under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-3. Defendant was sentenced to an aggregate term of six years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; three years parole supervision after his release; and community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-2. We affirm.
The facts relevant to this appeal are as follows. The victim, J.P., and his mother joined a church of which defendant and his family were members. In March 2000, when J.P. was fourteen years old, the Pastor spoke with his mother in the presence of defendant, defendant's wife and a Deacon of the church, and disclosed that there had been a sexual encounter between defendant and J.P. The Pastor told those present that the matter should remain within the church community and that there would be no attempt to prosecute or sue any fellow Christians.
Although J.P.'s mother did not voice any objections at the time of the meeting, she later changed her mind when her son began having trouble in school because the matter had leaked out and he was being teased by schoolmates. J.P. began counseling because he was, by then, suffering from emotional disturbances. Almost a year after learning of the incidents, J.P.'s mother finally reported them to the Prosecutor's Office.
In June 2001, when defendant was arrested, he gave a statement in which he acknowledged sexual encounters with J.P. beginning in 1999, when the boy was fourteen. Defendant claimed, however, that he believed the boy was sixteen and had consented to the relationship. Defendant also acknowledged sexual relationships with two other boys, both of whom testified at trial.
In this appeal, defendant argues:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT MADE WHILE IN POLICE CUSTODY WHERE SAME WAS MADE IN VIOLATION OF HIS FUNDAMENTAL RIGHTS TO DUE PROCESS
THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S REQUEST FOR A MISTRIAL; AND/OR CURING THE TESTIMONY OF WITNESS KP WHERE HE WAS A HOSTILE WITNESS REFUSING TO ANSWER QUESTIONS RESULTING IN PREJUDICE TO DEFENDANT
THE COURT ABUSED ITS DISCRETION IN RELYING ON THE STATE'S EXPERT WITHOUT PROVIDING DEFENDANT AN OPPORTUNITY FOR CROSS EXAMINATION
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR
THE COURT BELOW ABUSED ITS DISCRETION IN NOT GRANTING DEFENSE'S APPLICATION TO BE SENTENCED AS A THIRD DEGREE OFFENDER
Defendant initially argues that, although he was provided with his Miranda*fn1 warnings when questioned by the police, those warnings were vitiated by Officer Trogani telling defendant that it would be "helpful" if he told his version of the events. During the suppression hearing, the officer acknowledged that he told defendant that his statement would help "put things back into perspective." Defendant maintains that this "promise" nullified the Miranda warnings.
Although defendant argues that this was an "inducement" to make an incriminating statement, it does not come within the type of police conduct characterized as inducements under the case law. In State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 572 (2003), the defendant was advised of his Miranda rights and, "[a]fter being photographed and fingerprinted,... was escorted into a conference room where he was given the criminal complaints to read for himself." Id. at 262. The officer processing the defendant then asked if he wished to speak, and the defendant indicated that he was "guilty of some of the things on here... but not all of them." Ibid. The defendant asked to consult with an attorney and inquired "what would happen to him next." Ibid. The defendant asked the officer if he could say something "off-the-record." Ibid. The officer indicated he could and listened to the defendant's "offthe-record" statement in which he admitted to fondling two victims.
We found the defendant's "off-the-record" statement inadmissible because the officer's "acquiescence to hear an 'off-the-record' statement from a suspect, which the officer ought to know cannot be 'off-the-record,' totally undermines and eviscerates the Miranda warnings, at least with respect to a statement made, as here, in immediate and direct response to the misleading assurance." Id. at 268. We found further that the defendant's statement "off-the-record" was not a voluntary waiver of his Miranda rights because he had been misled by the officer's assurance that he could make an "off-the-record" statement. Id. at 269.
Here, there was no such assurance given to defendant. The officer's statement that it would be "helpful" if defendant gave his version of the events did not indicate that the statement was "off-the-record." Nor did it induce defendant to make an inculpatory statement by inferring that the statement would not be used against him at trial. See, e.g., United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993) (holding that an "off the cuff statement" was inadmissible when the officer, who knew defendant from high school, agreed that defendant could make the statement the day after Miranda warnings were issued); State v. Cooper, 151 N.J. 326, 355 (1997) (holding that where an improper promise actually induced an incriminating statement, the statement was inadmissible). We see no error here.
Defendant next argues that the trial court erred in denying his motion for a mistrial when the second child victim, K.P., declined to answer questions during his testimony. The court denied the motion, indicating that the boy had made it clear from the beginning that he did not want to testify because defendant was related to him by marriage. The court further stated:
Moreover, we have the actual statement which was read into the record in which the defendant says what occurred. In the scheme -- well, first of all at trial things do occur which are prejudicial to one party or the other, that's what the trial is about. Prejudice per se is not an issue that as soon as it occurs should be barred from trial. The concern is whether or not the prejudice outweighs the probative value. If I were to order the testimony of the defendant through his statement, [J.P. and K.P.]'s testimony, my sense is that it is the statement of [defendant] that is strongest. I am denying the application for [a] mistrial.
Defendant contends that the boy's refusal to answer questions "added critical weight to the State's case that unfairly prejudiced defendant." We disagree.
A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice. State v. Winter, 96 N.J. 640, 647 (1984). The decision to grant or deny a motion for a mistrial is within the discretion of the trial court. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S.Ct. 675, 98 L.Ed. 1097 (1954). Our scope of review of such a decision is limited to whether the trial court abused its discretion. Ibid.
We have carefully reviewed the record with respect to K.P.'s testimony and it is clear that he was a reluctant and hostile witness from the start. When shown a statement he had made regarding defendant's sexual abuse of him, he declined to answer any questions about the abuse. When asked whether he told the truth in giving the statement, he further refused to answer. When the prosecutor asked what happened during the night he spent with defendant, K.P. responded, "I don't want to answer that." At that point, the prosecutor moved to have the boy's prior statement admitted into evidence. Defense counsel objected and the court stated that, although the statement could be shown to the witness to refresh his recollection, it was not admissible unless he had recanted or given contradictory testimony. In this instance, the boy simply stated that he did not want to answer the questions.
In our review of K.P.'s testimony and the trial court's decision on the motion for a mistrial, we are satisfied that there was no abuse of discretion. Indeed, in our view, the boy's reluctance to testify diminished the weight of the State's case.
After the jury verdict, defendant was evaluated at ADTC to determine whether he was a repetitive and compulsive offender subject to sentencing to Avenel. Defendant presented his own witness, Roger Harris, M.D., a psychiatrist who testified that defendant did not need to be incarcerated at ADTC. After questioning by the court, Dr. Harris indicated that although defendant's behavior was repetitive and compulsive, it was "an isolated incident" and there was no "evidence of psychopathic behavior or deviant conduct and that going forward in fact he is on the low-risk end of the Static 99." After the court's questioning, the prosecutor cross-examined Dr. Harris and defense counsel declined to ask any follow-up questions.
Defendant now argues that he was not allowed an opportunity to examine Mark Frank, Ph.D., the psychologist who evaluated defendant for the ADTC report. There is no indication in the record, however, that defendant sought to have Dr. Frank appear and be subject to cross-examination. Where a party fails to object to or to request testimony of a particular witness, he must demonstrate that such a failure resulted in plain error. R. 2:10-2. Defendant has not done so.
Finally, we find no merit in defendant's sentencing arguments. The trial court properly considered the aggravating and mitigating factors and defendant was appropriately sentenced for the offenses of which he was convicted. He was sentenced to six years, the lower range for a second degree offense. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).