May 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 03-03-0285 and 03-03-0385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 10, 2010
Before Judges Cuff, Payne and C.L. Miniman.
A jury found defendant J.E.J. guilty of second degree sexual assault. The victim is his step-daughter, who was eleven years old at the time defendant began to touch her inappropriately. He is serving a seven-year term of imprisonment subject to an 85% parole ineligibility term in accordance with the No Early Release Act (NERA).*fn1 The appropriate fines, penalties, assessments and fees were also imposed.
Defendant married Charlotte*fn2 in May 1996; her daughter Karen was six years old. Defendant and Karen had a close father-daughter relationship. Having known him since she was two years old, Karen thought he was her biological father and did not learn to the contrary until she was ten years old. Karen testified, however, that their relationship changed when she turned eleven years of age. At that time, defendant began to touch her in inappropriate places. Charlotte also discovered a letter written by defendant to Karen in which he professed his love for her. Charlotte called the police.
At trial, Karen testified that defendant began "touching [her] inner thigh, telling [her] stuff like, I love you, [and] hugs that just weren't like before." She said that he usually touched her inner thigh when the family was sitting in the bedroom watching television together and that such behavior occurred on more than fifteen occasions. A few times after defendant did this, he approached her and told her that "it was okay that was just the way he felt for [her] and things like that." He also told her that "he felt like [she] was telling him, it was okay, and that he could show his feelings for [her] and that there wasn't anything wrong with it."
Karen also testified that defendant's hugs became tighter and more aggressive as if he was trying to make her stay with him. She also recalled a particular instance when defendant tried to "french kiss" her and she "just closed [her] mouth and gritted [her] teeth to try to prevent his tongue from going inside [her] mouth." On another occasion, defendant, wearing only a towel and underwear, pulled Karen's sleeping bag off and her pants fell. She stated that defendant told her he was not trying to do anything, but he just wanted to touch her. This made her uncomfortable, so she kicked him away, arose and backed away from him. As a result of defendant's actions, Karen began to fear being around him, but she never told her mother. She was afraid it would affect her parents' relationship.
On July 21, 2002, while preparing to take Karen and the other two children to meet defendant at a soccer game in the park, Charlotte picked up a pair of defendant's pants and a letter fell out of his wallet. The letter was written in Spanish. She recognized defendant's handwriting and the paper he used. She had used the same paper a few days earlier. The contents of the letter, as translated by Detective Robert Meoqui, are as follows:
Nena*fn3 forgive my conduct but this is not strange for you. Because  not speak to you, not say good-bye, not give you the good mornings, not play, not be by your side, not kiss you, we didn't last the years this is something stupid between a father and daughter. I do this thinking that it is the only path that I have in order not touch you, not to kiss you. But I am mistaken all this I need the only thing I achieve is to have my spirit without life without desire for anything. Without dreams as if I were dead, in life.
For the first time in my life I am afraid. A lot of fear. . . . Because each day I need you very much this sentiment I have for your mother and now with you. But with you it is different because you are my daughter. I cannot make love to you. I can't deceive your mother with another woman or with you. What I feel is love and not evil. Never am I going to do something bad to you. The bad thing is what I am doing. No speaking to you, no greeting you, no kissing you, no touching you. Because the truth is that I want to want you. My little one, for me there are three paths. 1) that you call the police and put me in jail for sexual harassment. 2) that you tell your mother all of the truth so that she throws me out of the house. 3) Accept my love unconditionally until the law of God . . . decides what to do with our lives. You will grow up, become a beautiful woman, and get married. I will continue with your mother until the end of my life.
But for now accept that we need each other.
Because despite that you do not like that I caress you. I know . . . In the bottom of you[r] heart you also need me. . . . . Nena at times I ask myself why I fell in love with you, you being only a little girl and over all you being my daughter. And I find no answer. The only thing I know is that for love there are no limits, there is no age. Despite that you are hardly a little girl, you have awakened the sentiment of love. . . . Nena to leave. Always have I looked for the wrong path, and the truth is that I don't find it and don't go on and tell me that the path is God. Because God is love and he does not get involved in those things.
Charlotte said she knew from the letter that something was not right and was confused because she did not know what was happening in her house with her daughter and the man to whom she was married. Charlotte told the children about the letter and questioned Karen. At first, Karen denied that there was any misconduct, but then admitted that defendant had kissed her. When Charlotte asked Karen how defendant had kissed her, she responded, "the way he kisses you." With this disclosure, Charlotte drove the children to the home of the family pastor. After the pastor read the letter and spoke to Karen, Charlotte and the pastor decided to call the police.
Defendant testified at trial. He spoke about his marriage and stated that he felt that his marriage became strained because his wife became overcommitted to their church. He also described an incident when he struck Karen because she entered the bathroom to help her fourteen-year old male cousin. He stated the letter to Karen was an apology for hitting her and a way to organize his thoughts because his relationship with his wife had been so poor since that incident.
Defendant also gave a non-sexual explanation for the sleeping bag incident related by Karen. He said that he was only trying to awaken her, and when he pulled her sleeping bag off, her pants accidentally fell, too. He also maintained that he never kissed Karen anywhere but on her head, except for one occasion when he lightly touched her lips when he was kissing her goodbye.
Defendant denied that any bodily touch was sexual in nature. Defendant testified that he would always touch his sons, as well as Karen, when they were watching television, because that is what families do.
On appeal, defendant raises the following arguments:
THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF A CRUCIAL STATE'S WITNESS (THE ALLEGED VICTIM'S MOTHER) CONCERNING A PENDING CHARGE INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND PRESENT A DEFENSE AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.
THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT, CONCERNING A JUDGE'S CONDITIONS OF BAIL THAT PRECLUDED DEFENDANT'S CONTACT WITH HIS FAMILY OR ANY CHILDREN, IMPROPERLY SUGGESTED A PRE-TRIAL JUDICIAL DETERMINATION OF DEFENDANT'S GUILT, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Defendant argues that the trial judge improperly restricted his cross-examination of Charlotte, thereby inhibiting his effort to demonstrate her interest in obtaining a conviction. To properly address this issue, we must review Charlotte's testimony.
During her cross-examination, Charlotte related that the Division of Youth and Family Services (DYFS) became involved with her family. She admitted that once she reported defendant's actions, DYFS threatened to remove Karen and her other children from her custody if she refused to cooperate with the investigation. The judge precluded any questions that may have revealed that Charlotte had been charged with fourth degree neglect pursuant to N.J.S.A. 9:6-3, and that she had successfully completed Pretrial Intervention. The neglect charge emanated from an incident in which Charlotte allowed the children, including Karen, to be in defendant's presence contrary to the conditions of his bail.
Defense counsel repeatedly stated that he had no intention to pursue a line of questions that would prompt revelation that she had allowed her children to be in defendant's presence in violation of a bail condition and that the incident led to a criminal charge. He insisted that he simply wanted to question Charlotte to determine whether DYFS threatened removal of her children.
The right to question a witness with respect to bias is within the "broad discretion of the trial judge." State v. Vaccaro, 142 N.J. Super. 167, 176 (App. Div.), certif. denied, 71 N.J. 518 (1976). Trial courts "'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" State v. Garron, 177 N.J. 147, 187 (2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986)). Therefore, a judge's decision with respect to appropriate matters for cross-examination should only be overturned in the event of an abuse of discretion. State v. Kemp, 195 N.J. 136, 149 (2009). Even if a judge abused his/her discretion and committed an error, a trial determination should not result in reversal of a conviction unless the error is harmful. Id. at 149-50. Thus, an appellate court should "'disregard any error or omission by the trial court unless it is of such a nature as to have been clearly capable of producing an unjust result. The same standard applies whether the error was objected to below or whether the error was first claimed upon appeal.'" Id. at 150 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).
A criminal defendant's Sixth Amendment right to cross-examine and confront witnesses against him is absolute. See Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed. 2d 177, 197 (2004). During cross-examination, it is wholly permissible for an attorney to impeach the credibility of a testifying witness through evidence of a prior criminal conviction. N.J.R.E. 609. It is also permissible to cross-examine a witness with respect to bias, as "[i]t is 'fundamental' that a defendant has a right to explore evidence tending to show that the State may have a 'hold' of some kind over a witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001) (quoting State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996)). See also N.J.R.E. 607; State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996).
Because a defendant's right to confront witnesses against him is so important, if a trial judge abuses his discretion in restricting a defense attorney's cross-examination of a witness with respect to his/her bias, it may be grounds for reversal. See e.g., Van Arsdall, supra, 475 U.S. at 684, 106 S.Ct. at 1438, 89 L.Ed. 2d at 686-87; Parsons, supra, 341 N.J. Super. at 312. In Van Arsdall, supra, the Court set forth relevant factors for determining whether such a restriction surpasses the bounds of harmless error and warrants reversal: "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." 475 U.S. at 684, 106 S.Ct. at 1438, 89 L.Ed. 2d at 686-87.
There have been numerous cases in this state where the Court has reversed a conviction because the judge prohibited an attorney from cross-examining a key witness about his/her bias. The Supreme Court overturned a drug conviction because the State failed to disclose that a witness, who corroborated the police's versions of the drug transaction, was receiving treatment mandated from a prior drug charge. State v. Spano, 69 N.J. 231, 235-36 (1976). The Court found that "the conditional dismissal of the criminal charge against [the witness] could have motivated her to testify in support of the State's case" and that the lack of ability to argue the same to the jury prejudiced the case against the defendant. Id. at 234-35. In Vaccaro, supra, 142 N.J. Super. 167, this court overturned the defendant's conviction because the judge prohibited the cross-examination of four individuals regarding the favorable dispositions they received in exchange for testifying. The court held that a defendant did not have to be prepared to show an express or implied agreement between the witness and the State in order to impute bias during cross-examination. Id. at 176. We gave the following rationale for our decision:
Whether a witness actually received favorable treatment is not a sine qua non to appropriate cross-examination relating to colorable bias of the witness toward the State because of possible favorable treatment in connection with criminal charges. The test of propriety of questions addressed to credibility is not necessarily whether there was an arrangement to grant the witness concessions. It is as relevant and significant for a defendant to demonstrate the state of mind of the witness based on his subjective reactions to the favorable treatment he may have received or may hope to receive in connection with his own criminal involvement. State v. Taylor, 49 N.J. 440, 447-449 (1967); State v. Curcio, 23 N.J. 521, 523-525 (1957); State v. Blue, 124 N.J. Super. 276 (App. Div. 1973). This is a proper facet of proof relevant to bias and motivation which may be considered by the jury in assessing the credit to be given to the witness and his testimony.
[Id. at 175-76.]
In State v. Mazur, 158 N.J. Super. 89, 104 (App. Div.), certif. denied, 78 N.J. 399 (1978), this court applied the Vaccaro rationale and reversed a defendant's conviction when the judge prevented cross-examination of a witness relating to the prosecutor halting a fraud investigation in exchange for the witness' testimony. The trial judge did allow the disclosure of the prosecutor's actions in ceasing the investigation, but he did not permit the defense attorney to expand upon the line of questioning into the underlying facts. Id. at 104-05. In determining that reversal was warranted, this court reasoned as follows:
The "essential facts" demonstrating prejudice must always be allowed into evidence. It would be impossible to know the strength of Cohn's possible bias if it could not be determined what types of things the investigation focused upon. These areas of investigation are essential facts which the trial judge should have allowed defendant to develop.
Because the evidence against defendant arose primarily from Cohn's testimony, we conclude that the trial judge committed reversible error by precluding defendant from showing bias. While the jury was told that Cohn received a promise of immunity concerning the police "payoffs," thus demonstrating bias to some degree, the jury may well have considered this fact insignificant, since Cohn during the period in question was acting as a police agent anyhow. Therefore, other factors which might have shown Cohn to be biased toward the State may have played a decisive role in the jury's assessment of his credibility. [Id. at 105 (citations omitted).]
Whether a defendant's ability to demonstrate the interest of a witness to procure a particular result has been influenced by an evidentiary ruling must be assessed in the context of the particular trial. Kemp, supra, 195 N.J. at 149-50. Here, we cannot hold that defendant suffered any prejudice. Charlotte responded affirmatively when asked directly whether DYFS threatened her continued custody of her children. Her response to that question also included her knowledge that DYFS expected her to cooperate in the investigation and prosecution.
The trial judge precluded any further exploration of this topic, and we are satisfied that he did not err by doing so. Charlotte did not always give concise and targeted answers to questions posed by the prosecutor or defense counsel. She tended to elaborate. Despite defense counsel's protestations to the contrary, it is apparent from our review of the record that any further questions on the topic of threats to the custody of her children would have prompted a response about the criminal charge against her. The trial judge undoubtedly had the same fear.
Charlotte was an important witness because she authenticated the letter defendant wrote. She was not, however, a pivotal witness because she did not testify to any of the underlying abuse. There were a number of ways the letter could have been admitted into evidence, and defendant, himself, admitted he wrote the letter. Although she was undoubtedly important to the case, it cannot be said that defendant's conviction rested upon her testimony. It is far more likely that defendant's conviction rested upon the testimony of his step-daughter Karen. She was the victim of the abuse and testified to the specific instances of defendant's misconduct. Moreover, the majority of the facts to which Charlotte testified were corroborated by other witnesses, including the family pastor, defendant, and a detective from the police department who translated the letter. Defendant and Karen also testified to the family background and the details of the marriage between defendant and Charlotte.
Defendant argues for the first time on appeal that the prosecutor should not have questioned defendant about the conditions of his bail. In doing so, defendant now argues that the prosecutor improperly suggested that there had been a pre-trial determination of defendant's guilt. We disagree.
The prosecutor did question defendant about bail conditions. The discussion consisted of three questions and answers.
Q: What about after your arrest, didn't a judge tell you, you couldn't return to your home?
A: I could go to my home.
Q: You could go to your home after your arrest? And didn't a judge tell you [that you] weren't allowed back home?
A: No it wasn't a judge, it was there at the prison, where they gave me a piece of paper that said, I couldn't go back to the house. And I couldn't go back to the house. And I couldn't be around children under 16.
Q: Do you know that was the condition of your bail set by a judge?
These questions occurred during a portion of the cross-examination of the marital difficulties between defendant and Charlotte. Although the purpose of the questions is not entirely clear, this line of questioning seems to be in response to defendant's position that the charges were concocted to force him out of the house. There was no further mention of bail conditions during cross-examination or in the prosecutor's summation. Defendant did not object.
Under the circumstances, it does not appear that this extremely limited inquiry was inappropriate or caused any prejudice to defendant. Contrary to defendant's argument, this issue is not controlled by the rule announced in State v. Chenique-Puey, 145 N.J. 334, 343 (1996), which requires severance of a criminal charge, an element of which is a prior conviction. Moreover, by failing to object, defendant prevented the trial judge from ruling on the relevance of the inquiry, evaluating any prejudice caused to defendant by the inquiry, and fashioning an appropriate instruction, if required. State v. Williams, 113 N.J. 393, 452 n.14 (1988).
Finally, we are not persuaded that the seven-year term of imprisonment is manifestly excessive. The term is subject to NERA; therefore, he must serve eighty-five percent of the term before he is eligible for parole.
Our review of the sentence is limited. We review the record to determine if the judge followed the sentencing guidelines, whether the aggravating and mitigating factors found by the judge are supported by competent and credible evidence in the record, and whether the application of the guidelines to the facts as found renders "the sentence clearly unreasonable as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984).
The judge found three aggravating factors. He cited the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); the harm to the victim, N.J.S.A. 2C:44-1a(2); and the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The judge also found as a mitigating factor the lack of prior criminal involvement, N.J.S.A. 2C:44-1b(7). The judge must qualitatively evaluate the factors, State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002), and must guard against "double-counting," State v. Jarbath, 114 N.J. 394, 404 (1989).
In his discussion of aggravating factor one, the judge cited "the vulnerability of this victim who was less than 13 years of age when defendant took advantage of his position as her stepfather and repeatedly engaged in acts of sexual contact constituting sexual assault given her age at the time." As to aggravating factor two, the judge reasoned that "she was vulnerable to his advances and he violated a trusting relationship that had been established by reason of his family position." In discussing the need to deter defendant and others, the judge recognized a need to specifically deter defendant citing once again the familial relationship and Karen's vulnerability.
Sexual contact with a victim under the age of thirteen is considered sexual assault and a second degree offense due to the age of the victim. Defendant's step-daughter was eleven at the time of the various acts of sexual contact. It is a close question whether reliance on her age to invoke aggravating factor one is an impermissible double count. Our review of the judge's reasoning in its entirety, however, reveals more emphasis on the familial relationship, the vulnerability of the victim due to that relationship, and the fundamental violation of trust committed by defendant. These are proper considerations and indicate to us that we should not interfere with this mid-range term for a second degree offense.