On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Following a trial by jury, defendant Timothy A. Paziora appeals from his October 3, 2008 conviction on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). After appropriate merger, the judge sentenced defendant to a fifteen-year term of imprisonment on count one, concurrent to a seven-year term of imprisonment on count two. The conviction arose from defendant's digital penetration of his girlfriend's daughter and his touching of the child's vaginal area when she was ten years old.
On appeal, defendant raises the following claims:
I. BY TELLING THE JURY THAT DEFENSE COUNSEL KNEW HIS CLIENT WAS GOING TO BE FOUND GUILTY AND BY MISCHARACTERIZING THE EVIDENCE, THE PROSECUTOR'S CLOSING ARGUMENT CROSSED THE LINE OF PROPRIETY AND PREJUDICED THE DEFENDANT (ANSWERED IN THE NEGATIVE BY THE LOWER COURT).
II. THE PROSECUTOR BREACHED HER ETHICAL OBLIGATIONS BY PRESENTING MISLEADING TESTIMONY FROM ANGELA BENNETT AND THEN MAKING THAT TESTIMONY THE CENTERPIECE OF HER CLOSING ARGUMENT (ANSWERED IN THE NEGATIVE BY THE LOWER COURT).
III. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE [THE ALLEGED VICTIM'S] MENTAL HEALTH HISTORY AND HIS FAILURE TO OBJECT TO THE PROSECUTOR'S CONTINUING DEPICTION OF THE TESTIMONY OF HER WITNESSES AS CORROBORATIVE OF THE TESTIMONY OF [THE ALLEGED VICTIM] (NOT PRESENTED TO THE LOWER COURT).
Although we do not agree with defendant's precise characterization of the prosecutor's conduct as expressed in defendant's point headings, we do agree that the prosecutor's summation exceeded the bounds of legitimate advocacy. We reverse defendant's conviction. In light of that disposition, we need not reach the ineffective assistance of counsel claim that defendant advances in Point III or the Brady*fn1 violation he discusses in Point II.
After her parents' separation in January 2009, Kate*fn2 lived with her mother, Angie, and her brother, Leo. In June 2000, Angie met defendant in an online chat room. Shortly thereafter, defendant, who lived in Williamsport, Pennsylvania, began staying at Angie's home with Angie, Kate and Leo, often remaining from two to ten days. According to Kate, she and Leo sometimes stayed in the house with defendant for approximately two hours after school until their mother returned home from work. Leo, however, was frequently at his girlfriend's house after school, rather than at home with his sister and defendant.
Sometime between September and December 2000, when Kate was ten years old, defendant summoned her into her mother's bedroom while she and defendant were alone in the home. He patted the bed as an instruction that Kate sit next to him, which she did. Defendant placed his hand on her knee and moved it up her thigh while repeatedly assuring her that it was "O.K." Kate told defendant he "shouldn't be doing that" and walked out of the room.
On another occasion, during the same time period, Kate was sitting on the living room couch when defendant suddenly sat down next to her, blocking her movement with his legs. As before, he placed his hand on her knee and moved his hand up her thigh, but this time he inserted his fingers into Kate's vagina. Afterward, defendant warned Kate that if she told anyone what he had done, he would "do something to [her] family." A few weeks later, defendant again digitally penetrated Kate and again threatened to harm her family if she disclosed what he had done.
On the weekend immediately following Thanksgiving 2000, Kate tearfully told her father that she did not want to return to her mother's home and wanted to live with him and his wife, Jennifer. Even after she moved into his home, Kate's father never asked her to explain why. According to Kate's trial testimony, once she moved in with her father and Jennifer, the incidents with defendant were "like pushed in the back of [her] mind so [she] didn't ever think about it."
Not until 2006, some six years later, did Kate reveal what defendant had done and why she had decided to leave her mother's home. When Kate was nearly sixteen years old, Jennifer found a letter from Kate's boyfriend in which he described their sexual activity. Jennifer "confronted" Kate about the contents of the letter. During that same conversation, Jennifer told Kate that she had been reading text messages on Kate's cell phone and was concerned "about the [sexual] content of those messages."
According to Jennifer's trial testimony, she had become concerned about Kate's emotional well-being a few months before her conversation with Kate about the letter and text messages. Kate, who had usually been extremely outgoing and friendly, had become moody and withdrawn. During their conversation about the letter and the text messages, Jennifer asked Kate why she was "so totally different," at which point Kate "broke down" crying. When Jennifer asked whether anyone had molested her, Kate was unable to answer aloud, but wrote the name "Tim" on a newspaper and handed it to Jennifer.
By then, Kate, her father and Jennifer had moved to Virginia. On April 28, 2006, Jennifer contacted Hunterdon County authorities to report Kate's allegations. Patrolman Brian Griffiths, along with Detective Neiber of the Hunterdon County prosecutor's office, traveled to Virginia to take statements from Jennifer and Kate.
The investigation of Kate's allegations included an interview with Angie, during which she supplied police with a calendar in which she had recorded each of the occasions that defendant had stayed overnight in the home with her, Kate and Leo.
Defendant testified, denying that he had ever touched Kate inappropriately or that he had ever inserted his finger into her vagina. He also denied that he was ever alone in the house with Kate. On cross-examination, defendant generally agreed that the events recorded on Angie's calendar were accurate. Defendant also acknowledged that at some point after Kate moved out and began living with her father, he decided to "calm down" his relationship with Angie. He testified that his relationship with Angie ended in April 2001.
Defendant called three character witnesses, Edward Bremme, who was defendant's friend and Alcoholics Anonymous sponsor; Adelane, his former wife, whom he had not seen in more than ten years but who testified that he was an honest person; and Kimberly Adams, his current girlfriend, who testified to defendant's reputation for honesty. By the time of trial, Adams had been involved with defendant for approximately six years. On direct examination, when asked whether she had any children, Adams responded that she had one son and two daughters. Her daughters were eleven and fourteen years old.
While the jury was deliberating, the prosecutor and defense counsel engaged in what the prosecutor described as a "light and friendly" conversation. During that conversation, the prosecutor asked defense counsel why he had not asked Angie on cross-examination about her two three-way sexual trysts that involved defendant, herself and another partner. Defense counsel responded by saying that his client had not told him about those incidents.
Further discussion between the prosecutor and defense counsel established that although the trysts had occurred after Kate had left her mother's home and had moved in with her father, the incidents had occurred long before the trial began, yet they did not appear on Angie's calendar.
Upon learning of these trysts, defense counsel filed a motion for a new trial, arguing the fact that these encounters occurred after Kate moved out contradicted the State's theory that defendant lost interest in Angie after her daughter moved out. Defense counsel also argued that Angie's failure to note these events on her calendar showed that, contrary to the State's assertions, Angie had not listed on her calendar each of her contacts with defendant. The defense therefore argued that the information in question was exculpatory and that the prosecutor's knowing failure to reveal this information to defendant constituted a Brady violation that entitled him to a new trial. Defendant's new trial motion also included a claim that the prosecutor's closing argument was so inflammatory as to deny him a fair trial.
In opposition to defendant's new trial motion, the assistant prosecutor filed a certification in which she discussed the circumstances under which she had first learned about the trysts. During the week before trial, defense counsel told her that his client had told him that Angie "cheated on him" with other men during the time she was dating him. The prosecutor became concerned "that the defense may try to discredit [Angie] by accusing her of having other men at the home when her children were present." During pretrial preparation, the prosecutor therefore asked Angie about sexual encounters with others, and Angie confirmed that she had been involved in two separate sexual encounters with defendant and another person, once another man and once another woman. The prosecutor maintained that she and Angie did not discuss whether Angie had marked these trysts on her calendar.
The prosecutor admitted in her certification that she did not provide this information to defense counsel in discovery, either prior to or during the trial. According to the prosecutor's certification, the issue finally came up during her "light and friendly" conversation with defense counsel while the jury was deliberating. The prosecutor's certification concluded with an account of her post trial attempts to learn more about these trysts from Angie and her belief that Angie's calendar may have alluded to one of the three trysts.
After hearing argument, the judge rejected defendant's claim of a Brady violation, ruling that "the new evidence was fully known to the defendant, was not favorable to the defense, nor [would] it appear to be material or relevant." The judge likewise rejected defendant's claim that the ...