April 1, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DORELL A. HUGGUP, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-02-0332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Grall, Messano and LeWinn.
Atlantic County Indictment No. 05-02-0332 charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count three); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count five); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (counts six and seven); two counts of fourth-degree child abuse, N.J.S.A. 9:6-3 (counts eight and nine); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eleven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count twelve); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count thirteen). Co-defendant Troy Wicks was also charged in counts one, three, five through nine, and eleven through thirteen. A third co-defendant, Larry Huggup, defendant's brother, was also charged in counts two and four through thirteen.
Tried to a jury, defendant was found guilty on all charges except unlawful possession of a weapon. Co-defendants Wicks and Larry Huggup disposed of their charges through negotiated plea bargains with the State. Larry Huggup testified against defendant at trial.
The victim of these offenses was defendant's then girlfriend, M.M., with whom he lived along with his brother and his fiancée, known as Nici, and the latter's one-year-old baby girl, M.H. Co-defendant Wicks moved in with the group in October 2004. Nici's eleven-year-old niece, V.E., would sometimes stay with them on weekends.
The events giving rise to the indictment occurred from the early morning of Sunday, October 17, 2004 into the following day. M.M. testified at trial that early on the morning of October 17, Larry Huggup awakened her and began an argument. M.M. stated that Larry Huggup and defendant began to jump on her, kick her, throw her up in the air and toss her. She specifically testified that defendant sat on her "to twist [her] legs."
M.M. testified that defendant and his brother invited Wicks to join in the abuse, which was witnessed by Nici, V.E., and M.H. M.M. stated that at one point, V.E. and Nici joined in hitting her, at the direction of Larry Huggup.
M.M. further testified that Larry Huggup burned her with a cigarette lighter on her back and set her hair on fire; he also tied a belt around her neck, dragging her around; defendant and Wicks eventually participated in that conduct as well. Larry Huggup also put M.M.'s head in the toilet.
In addition to physical abuse, M.M. stated that both Wicks and defendant raped her; defendant then forced her to perform oral sex on him.
After the sexual assaults, M.M. testified that defendant made her take a cold shower with her clothes on. After the entire group forced her to clean the house, M.M. was placed in a closet by Larry and tied up with a belt. At some point defendant brought M.M. out of the closet and raped her again.
On the following morning, October 18, M.M. testified that she was stripped of all her clothing. Eventually she was able to escape through a window wrapped only in a sheet. She approached a stranger who took her to the hospital.
Holly Bolicki and Jill Fussner-Hankins, both of whom worked at the Shore Ambulatory Surgery Center where M.M. was taken, testified at trial that an unidentified man brought M.M. to the Center; she was naked except for a sheet and was badly bruised.
Larry Huggup testified at trial, pursuant to a plea agreement. He essentially corroborated M.M.'s testimony in all pertinent aspects. He acknowledged that Nici, V.E. and the baby were all present and observed the assault on M.M.
Detective Nelson Denan of the Somers Point Police Department executed a search warrant on the residence after talking with M.M. on October 18, 2004. He found defendant, Larry Huggup, Nici and the baby, all of whom were taken to police headquarters.
Defendant and his brother spent the night in separate holding cells; Denan returned the next morning around 11:00 a.m. to begin processing them.
Denan testified that defendant told him he wanted to talk. Denan then interviewed defendant and took a statement from him; this statement was the subject of a pre-trial Miranda*fn1 hearing.
Defendant admitting beating M.M., tying her up and leaving her in the closet. He also admitted to "wrestling" with her which caused her to "bleed a little bit." Defendant stated that he and the two co-defendants performed wrestling moves on M.M. for about two and a half hours.
Although defendant admitted to holding a lighter near M.M.'s body and her hair, he denied burning her. Defendant told Denan that he tied M.M. up and placed her in the closet to keep her from leaving because he loved her and wanted to talk to her.
The State produced the testimony of Brett Hutchinson, a forensic scientist at the Central Laboratory of the New Jersey State Police, who testified about DNA tests done on specimens taken from M.M. Hutchinson testified that defendant was identified as the source of sperm cells found on M.M.'s clothing and "cannot be excluded" as a source for the DNA found in a vaginal swab of M.M.
On appeal, defendant raises the following contentions for our consideration:
THE TRIAL COURT ERRED IN ADMITTING THE DEFENDANT'S STATEMENT BECAUSE THE DEFENDANT'S LEARNING DISABILITY IMPAIRED HIS ABILITY TO MAKE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT LARRY HUGGUP'S GUILTY PLEA IS NOT SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT CONSTITUTES PLAIN ERROR (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ARGUED IN SUMMATION THAT THE DEFENDANT COULD NOT BE EXCLUDED AS THE SOURCE OF THE SPERM CELLS FOUND IN M.M.'S RECTAL SPECIMEN (NOT RAISED BELOW)
THE DEFENDANT'S CONVICTIONS FOR ENDANGERING THE WELFARE OF A CHILD ON COUNTS SIX AND SEVEN WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW AND REPRESENTS [SIC] A DENIAL OF JUSTICE UNDER THE LAW (NOT RAISED BELOW)
THE AGGREGATE BASE CUSTODIAL SENTENCE OF 23 YEARS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL SENTENCES THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM TERMS
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR ENDANGERING THE WELFARE OF A CHILD ON COUNTS SIX AND SEVEN
Having considered these contentions in light of the record and the controlling legal principles, we find no error warranting reversal of the convictions or modification of sentence. Therefore, we affirm.
Defendant claims his statement to Detective Denan should have been suppressed because (1) he has a learning disability that prevented him from knowingly waiving his rights, and (2) he had been held in a cell for thirteen hours and "probabl[y] was subject to sleep deprivation."
Denan testified that defendant told him he had a learning disability and that he referred to himself as a "slow thinker." Defendant, however, presented no evidence of any such disability or mental impairment.
Denan further testified that he never threatened defendant and, when he asked defendant if he wanted to talk, defendant responded, "yes, he would like to talk about the incident, to tell the truth." Denan read defendant's Miranda rights aloud and had him sign a form waiving those rights. Denan described the manner in which defendant gave his statement as animated, "want[ing] to tell a story," and he would give long responses to the questions. At no time did defendant appear to Denan to be tired. The tape of defendant's statement was played at the hearing.
A review of the transcript of that statement convinces us that Denan's characterization of defendant's demeanor and participation in the interview was entirely accurate. Defendant's answers are significantly longer and more time-consuming than the detective's questions.
The trial judge ruled at the conclusion of the hearing that defendant's statement was admissible. The judge found that the length of defendant's detention, and the fact that he was kept overnight, were not significant since he was clearly in custody for the offenses reported by M.M. The judge further found that defendant voluntarily signed the waiver form, indicating that he knew his rights, understood them and knowingly waived them.
The judge determined that defendant's learning disability did not preclude his understanding and waiving his Miranda rights. The judge noted that the statement barely involved interrogation and instead consisted of the defendant's desire to "tell the truth[.]" The judge summarized his findings as follows:
The statement itself begins with Detective Denan saying, "Do you want to explain to me what occurred?" And . . . the floodgates were opened; he just poured it out. So there is in my view the most palpably self-evident, voluntary statement that I think I've seen in my career in criminal justice.
So I'm quite satisfied that it was given voluntarily.
While defendant may have been in the holding cell for approximately thirteen hours, the transcript of his statement reflects that Denan spent no more than forty-five to fifty minutes taking his statement; the officer testified there had been no pre-interview prior to taking the transcribed statement. Defendant did not testify at the hearing and, therefore, has presented no direct evidence to support his claim that he was in any way sleep-deprived during the interview.
We are satisfied that the judge's factual findings at the conclusion of the Miranda hearing could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, those findings were based upon the judge's assessment of the credibility of the witnesses before him; such findings are entitled to our deference. State v. Locurto, 157 N.J. 463, 474-75 (1999). We perceive no sound basis to disturb the result reached here.
Regarding the judge's instruction to the jury about Larry Huggup's testimony, defendant claims that the judge failed to instruct the jury that it could not consider a co-defendant's plea as evidence of defendant's guilt. He raises this point as plain error; therefore, he must convince us that this omission "is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. Defendant has failed to meet this burden.
Larry Huggup testified that he had negotiated a plea agreement in exchange for his cooperation at defendant's trial, and pursuant to the plea agreement his maximum aggregate sentence exposure would be six-and-half years. Moreover, he acknowledged that he had not yet been sentenced by the time he testified at trial.
The fact "[t]hat Larry Huggup's testimony was induced by a favorable plea bargain was . . . a major part of the defense effort to establish reasonable doubt[,]" as defendant asserts. We concur and note that, to that end, defense counsel vigorously cross-examined this co-defendant and attacked his credibility in summation.
The trial judge charged the jury as follows:
Larry Huggup, one of the defendants, has admitted his guilt, and has testified on behalf of the [S]tate. The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case, and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.
If you believe him to be credible and worthy of belief, you have the right to convict the defendant on his testimony alone, provided of course that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of defendant's guilt.
Once again as to Larry Huggup, you've heard evidence that he was previously convicted of a crime. . . . This evidence may . . . only be used in determining the credibility or believability of his testimony. A jury has a right to consider whether a person who has previously failed to comply [with] society's rules as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of a crime.
This jury instruction comported with the model jury charge except that it omitted the following language: "However, you may not use [the co-defendant]'s plea of guilty as evidence that this defendant is guilty of the crimes that he . . . is charged with." Model Jury Charge (Criminal), "Testimony of a Cooperating Co-defendant or Witness" (2006).
In considering whether this omission satisfies the plain error standard, we are informed by the Supreme Court's recent statement on the issue in State v. Adams, 194 N.J. 186, 207 (2008), in which the Court defined such error as "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." It is important to evaluate the overall strength of the State's case when determining whether plain error exists. State v. Chapland, 187 N.J. 275, 289 (2006).
Here we have not only the testimony of co-defendant Huggup, but also that of M.M., as well as defendant's own statement to Detective Denan. The record also contained physical evidence, such as M.M.'s condition upon escape, that corroborated defendant's statement and participation. Therefore, considering "the overall strength of the State's case[,]" and "the totality of the entire charge," ibid., we are satisfied that "in the context of the trial," this error was not "clearly capable of bringing about an unjust result." Ibid.
Defendant next alleges prosecutorial misconduct stemming from the following statement in summation:
The state police examiner, the DNA testimony that came before you, was testimony to the effect that [defendant] cannot be excluded from the sperm cell fraction of the DNA that was found in the victim's rectum. He cannot be excluded. He was a match, as you heard the testimony, to the DNA that was clipped from her pants, the crotch area of her pants. And he was a match to the DNA found in her shirt and in her bra, [defendant] to all three of those places. [(Emphasis added.)]
Annette Estilow, a forensic scientist, employed by the New Jersey State Police, had testified that the anal swab of M.M. did not contain semen. The State concedes, and we concur, that the prosecutor erred in making this particular statement to the jury. However, we also concur with the State's contention that this statement was harmless error; another forensic scientist, Brett Hutchinson testified that defendant's DNA was found in sperm cells taken from M.M.'s bra, shirt and pants. As noted, the prosecutor immediately followed her erroneous statement with a correct summary of the remaining DNA testimony.
As the court noted in State v. Smith, 167 N.J. 158, 181-182 (2001):
In addition to determining whether a prosecutor committed misconduct, a court also must decide whether the prosecutor's misconduct constitutes grounds for a new trial. A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been "so egregious that it deprived the defendant of a fair trial." Thus, to warrant a new trial the prosecutor's conduct must have been "'clearly and unmistakably improper' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense."
In determining whether a prosecutor's actions were sufficiently egregious to warrant the reversal of a conviction, a reviewing court should take into account:
(1) whether defense counsel made timely and proper objections to the improper remarks;
(2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.
Where, as here, "no objection was made to improper remarks," such conduct "will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The lack of an objection also deprive[d] the trial judge of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 84 (1999) (citations omitted).
Defendant contends that "[e]ven if the proofs against [him] can be characterized as being 'overwhelming,' plain error results if [the] complained about impropriety had the capacity to affect the jury's verdict." To support this contention, defendant relies upon State v. Miraballes, 392 N.J. Super. 342 (App. Div.), certif. denied, 192 N.J. 75 (2007).
Defendant's reliance upon that case is misplaced, however, as it dealt with prosecutorial misconduct in improperly questioning an expert witness. Id. at 349-53, 361-62. By contrast here, defendant challenges one statement in the prosecutor's summation. We are satisfied that the claimed misconduct was not "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.
Defendant's contention that his convictions for endangering the welfare of a child were against the weight of the evidence lacks sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2). Defendant failed to make a motion for a new trial on these grounds below and, therefore, this issue is "not . . . cognizable on appeal . . . ." R. 2:10-1. Defendant acknowledges his failure to comply with this requirement, but urges us to review the issue on appeal in the interests of justice. We decline to do so, as we are satisfied that no "unjust result" has occurred here. R. 2:10-2.
Finally, we address defendant's sentencing arguments. First defendant contends that the trial judge erred in "imposing extra-minimum based sentences on all of [his] convictions . . . ." This resulted, defendant contends, from the judge's refusal to credit defendant with three mitigating factors: number two, that defendant did not contemplate that serious harm that would result from his conduct; number twelve, that he cooperated with the police; and number thirteen, that his conduct was substantially influenced by a more mature co-defendant. N.J.S.A. 2C:44-1(b)(2), (12) and (13). The trial judge did credit defendant with mitigating factor number seven, as he had no prior criminal history. N.J.S.A. 2C:44-1(b)(7).
We are satisfied that the trial judge properly declined to consider the three mitigating factors advanced by defendant. "[W]e can readily deduce from the sentencing transcript that [the trial judge] was mindful of and did consider the mitigating factors urged for defendant." State v. Bieniek, 200 N.J. 601, 609 (2010).
Considering the course of physical and sexual abuse which M.M. endured over a two-day period, defendant cannot seriously be heard to argue that he did not contemplate that his conduct would cause serious harm to M.M. With respect to mitigating factor number twelve, while defendant did give a statement to the police, he then proceeded to trial on all charges at which he repudiated the truth and voluntariness of that statement. Defendant is, thus, hard-pressed to claim that he should have the benefit of this mitigating factor. Regarding factor number thirteen, no evidence at trial supported the contention that defendant's abuse of M.M. was influenced by "his more mature brother, Larry Huggup[,]" as defendant now contends. Both M.M.'s testimony and defendant's own statement demonstrate his independent and voluntary participation in the offenses charged.
We reject as without merit defendant's challenge to the aggravating factors which the trial judge found to exist. We are satisfied that the judge followed "the well-established rule that aggravating and mitigating factors must be supported by credible evidence." State v. Dalziel, 182 N.J. 494, 505 (2005) (citing State v. Roth, 95 N.J. 334, 356-64 (1984)).
We are likewise satisfied that the trial judge properly imposed consecutive sentences on the two endangering counts. As the judge noted in his statement of reasons:
It is deemed that the crimes against the 2 child victims are worthy of consecutive sentencing given the fact of the[ir] being separate victims and as children particularly vulnerable. While all crimes were committed within the same so-called criminal episode, it cannot be overlooked that the conduct occurred over the course of 2 days and involved separate acts of criminality.
We conclude that the imposition of consecutive sentences and the supporting reasons for those sentences comply with the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We are satisfied that no further discussion of this issue is warranted. R. 2:11-3(e)(2).