April 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARRY LORENZO CAREY, A/K/A LORENZO CAREY, A/K/A MALIK CAREY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-01905.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant appeals from his convictions and sentence on charges of kidnapping and the aggravated sexual assault of one victim and his attempts to lure two other victims into a motor vehicle with the purpose of committing a crime against them. All of the victims were clients of Friendship House, a nonprofit vocational rehabilitation agency in Hackensack that serves clients who are developmentally, emotionally or physically disabled. We affirm.
On April 17, 2003, M.C.S. was walking to Friendship House when a man pulled up in a car and called for her to come over. Believing that the man was another Friendship House client, her boyfriend David, she ran to the car and opened the front passenger door. When she saw that it was not David, she told the man that she did not know him. He replied that he knew her and that she went to Friendship House. He told her that he was a staff member and offered her a ride, which she accepted. However, the man, later identified as defendant by M.C.S., did not drive toward Friendship House. When M.C.S. asked where he was going, defendant responded, "I'm going to take you where I want to get what I want[.]" M.C.S. asked to get out of the car but defendant responded, "[N]ot until I get what I want." Fearing for her life, M.C.S. began banging on the car window in a fruitless attempt to escape. After driving in circles, defendant pulled the car into a driveway and parked close to a cement wall that prevented M.C.S. from opening her door. He told her to stop trying to open the door because she would scratch the car door.
Defendant instructed M.C.S. to pull her pants down. After she refused twice, he threatened her by saying that he would only tell her to do so one more time. She complied at that point out of fear that he would hurt her. Defendant told M.C.S. to turn over on her stomach and, believing he would kill her if she refused, she did so. Defendant had sexual intercourse with her for approximately fifteen to twenty minutes, causing her to suffer pain. When he had finished, defendant told M.C.S. to pull her pants up. He drove around for a while, told her she was a "nice lady," and dropped her off.
M.C.S. found her way to Friendship House and entered, crying and shaking. The police were called. They took a statement from M.C.S. and transported her to Hackensack University Medical Center, where she was seen by a sexual assault nurse practitioner, Alexis Fitzsimmons. Very upset and angry, M.C.S. described the rape and complained of a lot of vaginal pain and pressure. Upon examination, areas of pain and redness were consistent with M.C.S.'s description of the rape. She also suffered a laceration. Fitzsimmons collected M.C.S.'s clothes and used a sexual assault evidence collection kit to obtain additional evidence.
After M.C.S. left the hospital, police drove her around Hackensack. She was eventually able to identify the location of the rape and assisted in the preparation of a composite sketch of her attacker.
Four months later, another Friendship House client, I.G., was walking to Friendship House when a man sitting in a parked, tan four-door 2003 or 2004 Toyota called out to her, stating that he was lost and claiming that he knew her. He asked her if she knew where a Blockbuster video store was. I.G. answered, "No." The man, later identified as defendant by I.G., told her that she was "hot" and asked her to get in the car and get some coffee with him. She refused and started to walk away. Defendant put his car into reverse and drove alongside her as she walked away. He opened the door to his car and asked her to get in but she continued to refuse.
I.G. was scared and hysterical when she ran into Friendship House. She told a counselor, Helene Sims, what had happened and pointed out the car. At that point, K.R., another Friendship House client was being approached by defendant in his car.
K.R. described a similar encounter. She was a few houses away from Friendship House when a Toyota pulled up on the opposite side of the street and the driver asked for help. K.R. later identified defendant as the driver. Defendant asked for directions to Teaneck but K.R. was unable to help. Defendant told her that he remembered who she was and asked her to get in the car but K.R. did not remember him and backed away from the car. Defendant then asked where he could find a good coffee shop and, after K.R. told him, he asked her to get in and show him. K.R. became frightened and began to walk away.
At that point, Sims arrived and wrote down the Toyota's license plate as it drove away. She told K.R. about I.G.'s experience and called the police. After the Toyota's registration was traced to his girlfriend's mother, defendant was identified as a driver of the car. When defendant was interviewed by police, he denied attacking any of the women. However, a DNA sample taken from defendant matched a sample taken from M.C.S. during her rape examination.
Defendant was indicted on the following charges: first-degree kidnapping of M.C.S., N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual assault of M.C.S., N.J.S.A. 2C:14-2(a)(3) (counts two and three); second-degree sexual assault of M.C.S., N.J.S.A. 2C:14-2(c)(1) (count four); second-degree attempted kidnapping of K.R., N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:5-1 (count five); second-degree attempted aggravated sexual assault of K.R., N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1 (count six); second-degree attempted sexual assault of K.R., N.J.S.A. 2C:14-2(c)(1) and N.J.S.A. 2C:5-1 (count seven); second-degree attempted kidnapping of I.G., N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:5-1 (count eight); second-degree attempted aggravated sexual assault of I.G., N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1 (count nine); and second-degree attempted sexual assault of I.G., N.J.S.A. 2C:14-2(c)(1) and N.J.S.A. 2C:5-1 (count ten). Count three was dismissed on the State's motion.
Defendant filed several pre-trial motions, including one to have a psychiatrist examine the victims. Another motion sought either a severance of the counts as to each of the victims or, in the alternative, to sever the charges regarding M.C.S. Both motions were denied.
During jury selection, the court asked all potential jurors if they or anyone in their family had either been arrested or convicted of a crime or had been the victim of a crime. The State asked the court to discharge an African-American juror, S.J., for cause based upon information it had obtained after she was seated that she had, in fact, been arrested and charged with assault. The State did not challenge S.J. when she was originally seated and, in fact, announced that the jury was acceptable on several occasions after S.J. was seated, including after other challenges were exercised by both the State and defendant. As part of her duties, the prosecutor had been screening all the cases that were referred to the prosecutor's office from the municipalities and S.J.'s name sounded familiar to her. Upon investigation, the prosecutor discovered that S.J. had been arrested and charged with assault in 2000. The basis for the State's request that she be excused for cause was that she had lied on the jury questionnaire and on voir dire and because the prosecutor was concerned as to how a peremptory challenge at that point might be perceived by the jury. Upon examination, S.J. acknowledged that she had been arrested and had filed criminal complaints against others but did not believe that information pertinent because the criminal charge against her had been dismissed. She maintained that she could be fair and impartial as a juror. The court denied the motion to excuse for cause; the State exercised a peremptory challenge. Defendant objected and moved for either a dismissal of the indictment or a new jury. The motion rested upon the arguments that the State's inquiries regarding S.J. violated Rule 1:16-1 and therefore constituted prosecutorial misconduct and further, that the State improperly exercised peremptory challenges to S.J. and T.W. on the basis of their race.*fn1 Defendant's motion was denied.
Defendant did not testify at trial. The defense presented was that the intercourse with M.C.S. was consensual; that his interactions with K.R. and I.G. were innocent conversations about locations and directions; and that he did not take any substantial step to kidnap or rape them by asking them to get in his car.
The jury convicted defendant of first-degree kidnapping of M.C.S., N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual assault of M.C.S., N.J.S.A. 2C:14-2(3) (count two); second-degree sexual assault of M.C.S., N.J.S.A. 2C:14-2(c)(1) (count four). On counts five and eight, the jury convicted defendant of the lesser-included offense of luring K.R. and I.G., N.J.S.A. 2C:13-7 and N.J.S.A. 2C:5-1. Defendant was acquitted on counts six, seven, nine and ten.
At sentencing, the court merged count four into count two. In addition to imposing appropriate fines and penalties, the court sentenced defendant as follows: on count one, twenty-five years, subject to the No Early Release Act (NERA), with 85% of the sentence to be served prior to parole eligibility; on count two, a term of seventeen years, subject to NERA, to be served concurrent to count one; on count five, a term of four years; on count eight, a term of four years. The sentences on counts five and eight were ordered to be served concurrent to each other but consecutive to the sentences imposed on counts one and two.
Defendant raises the following issues on appeal:
THE DEFENDANT WAS DEPRIVED OF DUE PROCESS BY THE PROSECUTOR'S IMPROPER USE OF PEREMPTORY CHALLENGES TO EXCLUDE JURORS ON THE BASIS OF RACE IN VIOLATION OF STATE V. GILMORE, 103 N.J. 508, 511 (1986).
THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE PROSECUTION IMPROPERLY CONDUCTED AN INVESTIGATION OF A POTENTIAL [JUROR].
THE TRIAL COURT ERRED IN NOT SEVERING THE OFFENSES FOR TRIAL.
THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS WHICH IMPERMISSIBLY BOLSTERED THE TESTIMONY OF COMPLAINING WITNESS (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER EVIDENCE THAT DEFENDANT HAD AN ALIAS THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
PROSECUTORIAL CONDUCT DURING CLOSING ARGUMENT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE DEFENDANT'S CONVICTION MUST BE REVERSED DUE TO MISCONDUCT BY THE PROSECUTOR IN ORDERING WITNESSES NOT TO SPEAK WITH DEFENSE INVESTIGATORS.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO PERMIT ITS EXPERT WITNESS TO CONDUCT A PSYCHIATRIC EXAMINATION ON THE "VICTIM".
CUMULATIVE ERRORS REQUIRE REVERSAL (NOT RAISED BELOW).
THE TRIAL COURT IMPROPERLY FOUND AGGRAVATING FACTORS (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO CONSECUTIVE TERMS OF IMPRISONMENT.
We do not find any of these arguments to have merit.
We turn first to defendant's claim that the State improperly used peremptory challenges to exclude potential jurors based upon their race. There were three potential jurors who were African-American. The State exercised a peremptory challenge against T.W. because he was friendly with a person being prosecuted by the Bergen County Prosecutor's Office. A second African-American venireman was excused for cause by the court with the consent of both the State and defendant because he stated that he could not be fair and impartial. The third African-American was S.J. Initially, the State had found S.J. to be acceptable to be seated on the jury. However, on the following day of jury selection, the State asked that S.J. be excused for cause after learning that she had been arrested in conjunction with a domestic violence matter, had filed several complaints against others, and had failed to disclose these facts. In this appeal, defendant limits his argument of improper challenge to S.J.
Defendant argues that the reasons offered by the State for excusing S.J. were pretextual and that she was singled out for "investigation" by the State because of her race. To support the pretext argument, defendant contends that the State did not object to another juror remaining on the jury despite his failure to advise the court that he had been a witness to a sexual assault and reported the incident to the police.
Defendant's timely objection is subject to the rebuttable presumption that the challenge has been exercised on constitutionally permissible grounds, State v. Osorio, 199 N.J. 486, 501 (2009), and prompts the three-step inquiry that guides the determination whether the prosecutor has exercised peremptory challenges in a discriminatory manner:
Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias. [Osorio, supra, 199 N.J. at 492-93.]
See also Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-74, 163 L.Ed. 2d 824, 831 (2006); State v. Gilmore, 103 N.J. 508, 535-39 (1986).
To make a prima facie showing, defendant must "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 2417, 162 L.Ed. 2d 129, 139 (2005); see Osorio, supra, 199 N.J. at 502. Applying the standard then applicable, the trial court concluded that defendant failed to make a prima facie showing that the exercise of the peremptory challenges against S.J. and T.W. was not based upon a neutral reason specifically related to the trial.*fn2
We agree that, in light of the unusual circumstances in which the peremptory challenge to S.J. was exercised, defendant failed to present sufficient evidence to raise an inference of discrimination. The record clearly shows that, at a time when her race was apparent but her involvement with law enforcement was unknown, the State had no objection to S.J. serving as a juror in this trial. The State repeatedly declared that the jury as constituted was acceptable after she was seated and other jurors were challenged, both by the State and defendant. It was not until the next day of jury selection, after the State discovered that S.J. had failed to disclose an arrest and her own complaints to the police, that the State moved for her to be excused for cause and exercised the peremptory challenge.
Our conclusion is unaffected by the argument that the State selectively investigated S.J., purportedly as a result of her race. In making the request to have her excused for cause, the prosecutor stated that she had initiated an inquiry because the juror's name was familiar to her. At the same time, she disclosed that she had made a similar inquiry regarding another venireman with an Irish surname to determine if he was a member of a family she knew. Therefore, the record refutes the characterization of the "investigation" as selective, based upon S.J.'s race. Moreover, the inquiries made did not include an interview of S.J. and so, defendant's contention that the State violated Rule 1:16-1 also lacks merit.
Defendant alleges that the trial court erred in failing to grant his motion to sever the counts so that a separate trial would be conducted as to each victim or, in the alternative, that the charges involving M.C.S. be severed from those concerning the other victims.
The decision whether to grant a motion for severance rests within the discretion of the trial judge and is entitled to great deference on appeal. State v. Morton, 155 N.J. 383, 451- 52 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Brown, 118 N.J. 595, 603 (1990); State v. Pitts, 116 N.J. 580, 601 (1989). Joinder is permitted when two or more offenses "are of the same or similar character or are based on . . . [two] or more acts or transactions connected together or constituting parts of a common scheme or plan." R. 3:7-6. Central to the inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting Pitts, supra, 116 N.J. at 601-02).
A review of the allegations and evidence here supports the conclusion reached by the trial court that evidence of the separate offenses would be admissible at trial pursuant to State v. Cofield, 127 N.J. 328, 338 (1992) and N.J.R.E. 404(b). In each incident, the victim was approximately twenty years older than defendant and was a client of Friendship House. Defendant approached each victim in the same manner, seated in a car near Friendship House and claimed to know each victim in an apparent effort to gain her trust. This evidence demonstrated a common plan and intent, an admissible purpose under N.J.R.E. 404(b) that satisfied the first prong of the Cofield test. Cofield, supra, 127 N.J. at 338. The charged offenses occurred within four months of each other and were, therefore, reasonably close in time, satisfying the second prong of the Cofield test. Ibid. The evidence regarding each offense, which included the testimony of the victims, was clear and convincing, satisfying the third Cofield prong. Ibid. Finally, because defendant contended that M.C.S. had consented to having intercourse with him, the issue of intent was critical. As a result, the probative value of the evidence to determining his intent was substantial and clearly outweighed any claim of prejudice by defendant. See ibid.
Defendant argues that reversal is required because, he contends, the State instructed witnesses not to speak to his representatives. This issue arose prior to jury selection when the prosecutor advised the court that, after being contacted by defendant's representatives, M.C.S. had called her counselor and stated that she did not want to speak to them. The prosecutor asked the court to order defendant's representatives not to contact M.C.S. again. When defense counsel agreed that no further efforts would be made to contact M.C.S., the court considered the matter closed but stated that a hearing would be held if there was a problem of prosecution interference with defense efforts to interview witnesses. Defense counsel then stated that witnesses had told her investigator that the prosecutor's office had issued a blanket order that they should not speak to defense investigators. This was adamantly denied by the prosecutor.
On the following morning, defense counsel brought investigator Alexander Saavedra to court to recount what the witnesses had said to him. The prosecutor asked for the investigator to be placed under oath and questioned. Rather than delay jury selection by holding a hearing at that juncture, the court stated that, if counsel thought it would solve the problem, he would direct that someone from the prosecutor's office contact the witnesses and advise them "that they are allowed to speak to the investigator and it's their decision whether or not they wish to do so." The court stated that if counsel thought a further hearing was required, it would be scheduled after jury selection.
Although skeptical that this would encourage the witnesses to speak to the defense investigator, defense counsel agreed to try this procedure before holding a hearing. Pursuant to a request made by defense counsel, the trial court asked the prosecutor to contact the Friendship House representative to advise their clients that the "defense does have the right to speak with them and it's up to them individually whether they wish or do not wish to speak to the defense investigators."
On the following day, defense counsel informed the court that several potential witnesses from Friendship House and the building where M.C.S. had previously lived had advised her investigator that they could not speak to him. The prosecutor denied that she or anyone from her office had told any potential witness not to speak to a defense representative. The court instructed the prosecutor to send someone to M.C.S.'s previous address and instruct the residents that they were free to speak to defendant's representatives if they wished to do so. The prosecutor stated that she had spoken to the Friendship House counselor the prior evening and had asked her to convey such information to staff and clients. The court asked the prosecutor to contact Friendship House once again and reiterate that message.
This issue arose again during trial when the prosecutor advised that I.G. had called her office and stated that she did not want to be contacted by defense representatives. Another resident at M.C.S.'s former residence, Michael Morabito, told the defense investigator that he had been instructed not to speak to defense representatives and had not received any instruction from the prosecutor's office that he was free to speak if he chose to do so. However, in a handwritten statement, Morabito stated that it was the Friendship House clinical director who had told him not to speak to defense representatives. Having concluded that the prosecutor's office had complied with its directives, the court stated that defense counsel was free to subpoena Morabito but that the State had no further obligation to contact him and advise him of his right to speak to a defense representative.
The principles applicable to this issue were summarized as follows:
Witnesses belong neither to the prosecution nor to the defense. Both sides have an equal right, and should have an equal opportunity to interview them. However, while it is true that a witness is not to be prevented from speaking to the defense by the prosecution, it is equally true that a witness cannot be required to speak to an investigator or an attorney. The matter rests, or at least it should rest, entirely with the witness. [United States ex rel. Trantino v. Hatrak, 408 F. Supp. 476, 481 (D.N.J. 1976) (citations omitted), aff'd, 563 F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed. 2d 524 (1978).]
In this case, the issues involving access to witnesses concerned victims M.C.S. and I.G., and certain persons associated with Friendship House, all of whom were unidentified in the record except for Michael Morabito. As noted, the issue was first raised by the prosecutor after M.C.S. was approached by a defense investigator and had communicated her desire that she not be contacted further by the defense. In response, defense counsel did not refute this version of events and represented that no further efforts would be made to contact M.C.S. A similar request was made by I.G. after she was contacted by a defense investigator. Again, defense counsel acknowledged that the victim's request came after the defense investigator attempted to interview I.G., and, in recognition of the witness's right to decline to be interviewed, counsel represented that no further effort would be made to contact I.G. Morabito identified the clinical director of Friendship House, rather than anyone associated with the State, as the person who had told him not to speak to the defense. The court repeatedly stated that the defendant had a right to attempt such interviews and directed the prosecutor to inform the Friendship House personnel and other potential witnesses that they were free to speak to defense representatives if they wished to do so.
The waters were unnecessarily muddied here by the role the prosecutor assumed in acting as an advocate for the position that the defense should not contact witnesses. We find no fault in the prosecutor merely communicating information received from witnesses regarding their desire not to be contacted. However, just as the witness does not belong to either the State or the defense, the prosecutor should not attempt to represent the interests of witnesses who choose not to speak to the defense. To the extent that there was any factual issue as to the role, if any, the prosecutor played in the witnesses' decision to decline to be interviewed by the defense, this could easily have been resolved by a brief hearing. The court repeatedly offered to hold such a hearing and advised defense counsel that Morabito could be subpoenaed to court to be interviewed by the defense investigator.
Defendant did not make any further request for a hearing or seek to subpoena Morabito to court for an interview. Although Jean O'Connor, the senior counselor at Friendship House, with whom the prosecutor communicated regarding the court's directives, testified at trial, no effort was made to question her about those communications or any instructions given by Friendship House to staff or clients regarding interviews with the defense. Similarly, no effort was made to question the victims, each of whom testified, about their decision to decline to speak to the defense. It may well be that there was little to gain from a hearing. Based upon the defense investigator's attempts to interview M.C.S. and I.G., counsel was aware that those victims did not want to speak to the defense. The defense made no complaint that the third victim, K.R., refused to speak to defense investigators. The information regarding Morabito revealed that it was the clinical director of Friendship House who had told him not to speak to the defense. The State was, of course, obliged to provide defendant with any information from potential witnesses that was exculpatory in nature, see State v. Marshall, 148 N.J. 89, 284 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963)) cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), and no argument has been made that any other witness who declined to speak to the defense had information that would have substantially benefited defendant. We therefore conclude that the record here does not support a conclusion that the State "use[d] its influence to discourage witnesses from speaking to counsel or counsel's agents." See ibid.
Defendant also argues that it was error to admit certain hearsay statements of M.C.S. After she was assaulted, M.C.S. went to Friendship House, where she told Karen Reining, an employee, what had occurred. Reining testified as to this "fresh complaint" evidence and defendant does not challenge the admissibility of her testimony. Defendant argues, however, that it was reversible error to permit the testimony of Alexis Fitzsimmons, a sexual assault nurse practitioner, and Officer Niamh McGuinness as to M.C.S.'s statements.
Officer McGuinness responded to Friendship House within minutes after the police were called about a suspected rape. She found M.C.S. crying, with puffy eyes, and extremely upset. She was so concerned about M.C.S.'s physical condition that she had an emergency medical technician check her vital signs. She was permitted to testify over objection to M.C.S.'s description of what had happened to her. The trial court ruled that such testimony was admissible pursuant to N.J.R.E. 803(c)(2). We grant substantial deference to the trial judge's discretion on evidentiary rulings, Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009), and find no abuse of discretion here.
Defendant did not object to Fitzsimmons' testimony at trial. Fitzsimmons testified that she responded to the emergency room to examine M.C.S. on the day of the assault. Before examining her, she interviewed M.C.S. and memorialized her version of the event on the sexual assault examination report. The testimony complained of now is:
[M.C.S.] had said that she had been raped, that she didn't have very good vision and had gotten into a car thinking that she knew who the person was or they knew her, and that she realized she didn't know the person and tried to get out, wasn't allowed to get out and was then raped, sexually assaulted.
The State contends that this testimony was admissible hearsay pursuant to N.J.R.E. 803(c)(4), which permits the admission of:
Statements in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
Statements that are not reasonably pertinent to diagnosis and treatment are inadmissible, Palmisano v. Pear, 306 N.J. Super. 395, 400-01 (App. Div. 1997), and should be redacted from statements otherwise admissible under N.J.R.E. 803(c)(4). See Cestero v. Ferrara, 57 N.J. 497 (1971) (applying Evidence Rule 63(12)). While M.C.S.'s statements to Fitzsimmons that she was raped are reasonably pertinent to diagnosis and treatment, the State has not presented persuasive argument as to why her statements about poor vision and mistaking her attacker for someone she knew met that standard. Nonetheless, we find no error, let alone plain error, in the admission of that statement as it was made at a time when M.C.S. was still "under the stress of excitement caused by" her assault and was, therefore admissible pursuant to N.J.R.E. 803(c)(2). Moreover, M.C.S. testified and was subject to cross-examination on the statements attributed to her.
Defendant argues that the court committed reversible error in denying his motion, made on the day that pretrial motions were heard, to have the victims, and M.C.S. in particular, examined by a psychiatrist. Defendant does not contend that any of the victims was incompetent to testify, but argues that he made a showing of "substantial need" that warranted such an examination and that such discovery was necessary for an effective cross-examination of the psychiatrist presented by the State. The authorities relied upon by defendant to support his argument that a "substantial need" was shown, State v. R.W., 104 N.J. 14 (1986) and State v. Hass, 218 N.J. Super. 133 (App. Div. 1987), are inapposite as they concern challenges to a witness's competency to testify. The record also belies defendant's contention that his defense was prejudiced by the court's ruling. Defendant was provided with discovery regarding M.C.S.'s mental condition. The court stated that defendant could have an expert review the discovery, observe the victims in court, prepare a report and testify regarding his review and observations. Defendant's expert also received a copy of the report prepared by the State's expert and was in court during his testimony. Defense counsel vigorously cross-examined the State's expert, who conceded that M.C.S. was subject to delusions, even on medication; that she had a history of cutting herself, a symptom of anger, anxiety or depression; that M.C.S. has paranoid trends; that she tries to present herself as a fully functioning adult and will not admit that she is "mentally retarded." After the State's expert testified, the court expanded the parameters of testimony that would be permitted from the defense expert, specifically allowing an opinion that M.C.S. was capable of misinterpreting the events that occurred involving defendant. The legitimate interests of defendant in pursuing discovery regarding the victims' mental condition, cross-examining the State's expert and presenting his own expert testimony were, therefore, all met and the court did not err in denying the motion.
Defendant argues that the trial court abused its discretion in imposing consecutive sentences and committed plain error in finding aggravating factors.
The kidnapping and aggravated sexual assault of M.C.S. occurred as part of a continuing criminal episode and the sentences imposed for those sentences were concurrent to each other. The luring of I.G. and K.R. occurred on a single day approximately four months later. The sentences imposed for those offenses were concurrent to each other and consecutive to the sentence imposed for the offenses committed against M.C.S. Although defendant argues that all sentences should have been concurrent, these were separate offenses against separate victims, with the passage of four months between the kidnapping and rape of M.C.S. and the efforts to lure I.G. and K.R. The factors 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) support the trial court's decision to impose a consecutive sentence here. See State v. Cassady, 198 N.J. 165, 181-182 (2009).
In stating the reasons for sentence, the court identified four aggravating factors: (1) the seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or substantially incapable of exercising normal physical or mental power of resistance, N.J.S.A. 2C:44-1(a)(2); (2) the likelihood that the defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (3) the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and (4) the need to deter the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Defendant challenges the court's finding of these aggravating factors for the first time on appeal. The court found no mitigating factors. Defendant does not cite any mitigating factor that the trial court erroneously failed to consider.
The evidence supported a conclusion that defendant targeted clients of Friendship House, choosing victims who he had reason to believe were developmentally disabled and therefore substantially incapable of exercising normal mental power of resistance. His efforts to lure I.G. and K.R. after raping M.C.S. strongly supports a conclusion that it was likely that he would commit another offense. It is true that defendant had no prior convictions. However, although prior arrests may not be given the same weight as convictions in making this determination, the trial court was permitted to consider his prior arrests and pending charges as support for a finding that N.J.S.A. 2C:44-1a(6) applied. State v. Jones, 179 N.J. 377, 407 (2004); State v. Green, 62 N.J. 547, 571 (1973). Therefore, each of these findings, as well as the finding of a need to deter, had ample support in the record. Because "the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record," its sentencing decision is entitled to our deference. Cassady, supra, 198 N.J. at 180; State v. O'Donnell, 117 N.J. 210, 215 (1989). We see no reason to disturb the sentence imposed.
Defendant's arguments regarding evidence of defendant's alias, the prosecutor's summation and cumulative errors were not presented to the trial court and therefore are not properly before us for review, State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We are satisfied, however, that these arguments lack any merit.
Defendant contends that the trial court committed plain error in failing to strike his aliases from the indictment and from Sergeant Thomas Salcedo's testimony and in failing to give a curative instruction. Defendant was indicted as "Barry Carey a/k/a Lorenzo Carey a/k/a Malik Carey." His aliases were read to the jury at the time the trial court read the indictment and were included in the testimony of Sergeant Salcedo as he described the steps taken by the police to identify defendant. We note that there is nothing inherently prejudicial in the names themselves; they are not pejorative and do not suggest any criminal association. Defendant was identified by tracing the motor vehicle used to approach each victim to his girlfriend, who referred to him as "Lorenzo" and said that he liked to be called "Malik." The names used by defendant were, therefore, relevant to the evidence against him. Even if the admission of a defendant's alias is irrelevant, such admission "will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988). Where, as here, the references to a defendant's aliases were limited and did not "suggest an element of criminal association or bad character on the part of defendant[,]" the references "neither compromised defendant's right to have the jury evaluate the merits of his defense nor prejudiced his right to a fair trial." Id. at 76. The proof of defendant's guilt was compelling and included the testimony of the three victims who were able to identify him as the man who approached each of them as they walked to Friendship House. The notion that references to wholly innocuous nicknames could have caused the jury to reach a result it otherwise might not have reached is speculative at best.
Defendant also alleges as plain error that certain comments made by the prosecutor in summation deprived him of a fair trial. The comments complained of include references to defendant as "the proverbial wolf in sheep's clothing," and that "defendant had already gotten a taste of the victim from the Friendship House" when he raped M.C.S. These comments were brief and fleeting in nature. Moreover, in light of defendant's method of approaching the victims, there was support in the record for the characterization of defendant's conduct as a wolf in sheep's clothing. Therefore, we conclude that the comments fell within the wide latitude accorded the prosecutor in summation, see State v Wakefield, 190 N.J. 397, 457 (2007); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969), and did not substantially prejudice defendant's fundamental right to have a jury fairly assess his case. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).