June 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN A. CRESCITELLI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-04-294.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2010
Before Judges R. B. Coleman, Baxter and Coburn.
Following a trial by jury, defendant appeals from his December 12, 2008 conviction on charges of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count one) and third- degree attempted criminal restraint, N.J.S.A. 2C:13-2(a) and N.J.S.A. 2C:5-1(a)(2) (count two), for which the judge sentenced him to concurrent five-year terms of imprisonment. The judge ordered that such sentence be served consecutively to a 2005 sentence, from which defendant was still on parole. On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED BY REFUSING TO DECLARE A MISTRIAL AFTER THE JURY WAS REPEATEDLY INFORMED OF THE EXISTENCE OF A RESTRAINING ORDER AGAINST APPELLANT AND THAT APPELLANT WAS ON ISP WHEN THE INSTANT CRIMES OCCURRED.
A. Repeated mentioning of the existence of a restraining order against Appellant was devastatingly prejudicial and violative of the clear mandates of the New Jersey Supreme Court in Vallejo and Ch[e]nique-Puey.
B. Mention that Appellant was serving a non-custodial sentence on a prior crime was highly prejudicial and clearly violative of the rules of evidence and controlling case law.
II. THE TRIAL COURT ERRED BY NOT DISMISSING THE ENTIRE JURY AFTER JUROR 13 PREMATURELY MADE HER DECISION AS TO APPELLANT'S GUILT.
III. THE TRIAL COURT ERRED IN ITS ADMISSION OF APPELLANT'S ENTIRE PRIOR CRIMINAL RECORD FOR IMPEACHMENT USE UNDER SANDS/BRUNSON.
IV. THE TRIAL COURT ERRED IN ITS ADMISSION OF WITNESS LAUREN CROMWELL'S PRIOR STATEMENT UNDER N.J.R.E. 803(a)(1).
V. THE TRIAL COURT ERRED IN ITS ADMISSION OF EVIDENCE OF APPELLANT'S CHARACTER IN VIOLATION OF N.J.R.E. 404(a).
VI. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT'S MOTION FOR AN ACQUITTAL.
VII. THE TRIAL COURT IMPROPERLY SENTENCED APPELLANT.
A. The trial court improperly decided on aggravating factors in this case before the jury had even deliberated and gave a statement of reasons that did not even pertain to the instant case.
B. The trial court improperly assessed the aggravating and mitigating factors in this case.
C. The trial court imposed an excessive sentence upon Appellant.
We reject each of these claims and affirm defendant's conviction and sentence.
On December 2, 2006, defendant's former girlfriend, Stevi Kabbeko, arrived at the home of Lauren Crowell,*fn1 defendant's cousin, to leave fifty dollars to reimburse defendant for cell phone charges that had been charged to his account. Approximately fifteen to twenty minutes later, defendant arrived at Crowell's house with a friend. Kabbeko testified that defendant began screaming at her repeatedly to "get the f**k out." Kabbeko stated that defendant was very angry and grabbed her cell phone off the table while she handed him the fifty dollars.
After defendant pushed her out the door, Kabbeko walked to the side of the yard where defendant continued screaming at her and began calling her vulgar names. After approximately twenty minutes, defendant calmed down and the two walked toward his car, where he had placed Kabbeko's cell phone. When she asked him to return it to her, he refused, telling her that the phone "was in his name" and that he "paid for it." Kabbeko refused to leave without her cell phone because she had stored telephone numbers in the phone that were essential to her career as an aspiring singer and entertainer.
According to Kabbeko, defendant angrily told her he wanted her "to suffer like he had to suffer" and that "if he could not have [her], nobody could." Defendant then told Kabbeko he intended to put her in the trunk of her car. He was able to shove her inside the trunk even though she had tried grabbing defendant, the car doors, the trunk lid and whatever else she could to prevent him from succeeding.
While this was occurring, defendant told Kabbeko that she "was going to suffer like he did" and that "he was going to kill [her]." According to Kabbeko, defendant told her "[e]ven God can't help you now."
It was at this point that she heard Crowell say "are you crazy" and "what are you doing." Kabbeko remembered someone pulling her from the trunk of the car. The next day, she reported the incident to police and obtained a domestic violence restraining order.
During her testimony, Kabbeko twice referred to seeking a restraining order. On the first occasion, she testified without objection that when she arrived at police headquarters, the officer asked her if she wanted to "press charges or anything" to which Kabbeko responded, "I just want this restraining order." She did not specify whether a restraining order had been issued.
Kabbeko's second reference to a domestic violence restraining order came during her redirect testimony when the prosecutor followed up on a portion of the cross-examination, in which Kabbeko had been asked whether she went to the police station to accuse defendant of a crime only because she had learned that defendant had already gone to police accusing her of having assaulted him on the day in question. The following colloquy occurred during Kabbeko's redirect examination:
Q: Why were you going to go to the police?
A: Because I wanted a restraining order against him.
Q: And why did you want that?
A: Because I was afraid.
Q: What were you afraid of?
A: That he might have another chance to do what he was going to do that night.
As with Kabbeko's first reference to wanting to obtain a restraining order, Kabbeko never was asked, and never said, whether she had succeeded in obtaining such an order.
Kabbeko also testified that her relationship with defendant had become strained as defendant had to be home every night at 8:00 p.m. because "he was on a -- " and had "just moved back home." When defendant objected, Kabbeko said "oh, sorry." Although Kabbeko did not finish her sentence because defense counsel promptly objected, the record reflects that at the time in question, defendant was participating in the Intensive Supervision Program (ISP), which was why he was required to be home by 8:00 p.m.
Crowell testified for the State, although her testimony was vastly different from the taped statement she had originally provided to detectives. She asserted that when she went outside, she observed Kabbeko hitting defendant and defendant trying to protect himself from Kabbeko's blows. Crowell stated that she walked over to the two and pushed them apart, telling defendant to return to the house and Kabbeko to leave. Crowell testified that she never saw Kabbeko climbing out of the trunk.
Crowell maintained that on December 3, 2006, the day after the incident, police came to her house and "badgered and interrogated" her. She acknowledged giving a taped statement at the police station that day, but testified that she did not remember most of it. She also testified that even if given an opportunity to review the entire taped statement, it would not refresh her recollection of what she told the police, as she "was very upset that day."
At a hearing outside the presence of the jury, the prosecutor played the entire DVD of Crowell's statement to police, which contained both an audio and visual recording. After viewing the DVD in its entirety, Crowell testified that she still did not remember making some of the statements shown on the tape. At the conclusion of the N.J.R.E. 104(a) hearing, the judge ruled that if Crowell persisted in testifying that she was unable to recall certain details of her statement to police, the State would be permitted to confront her with her prior recorded statement. The judge stated, "I find [her] testimony to be absolutely disingenuous prevarication and her testimony is inconsistent, therefore, with her prior statement."
The State also called Officer Matt Bonsall, who was the police officer on duty when Kabbeko came to police headquarters to report that her ex-boyfriend had assaulted her the previous day. Bonsall testified that after asking a female officer to take Kabbeko to another room to photograph her injuries, he spoke with Kabbeko to advise her "of her domestic violence rights." Bonsall testified:
[C]onsidering that it was a domestic case, I advised her that she would be able to speak with a judge about obtaining a restraining order, which she also did.
And she spoke with a judge and was issued the restraining order and she -- At that point, defense counsel objected at sidebar to the testimony that a domestic violence restraining order had been issued.
Immediately after the sidebar discussion was concluded, the judge issued the following curative instruction to the jury:
Ladies and gentlemen, I'm going to give you what I call a limiting or curative instruction. This witness just made reference to the fact that Ms. Kabbeko was told of her domestic violence rights, which is not objectionable. But [also] that she received a Temporary Restraining Order.
I want you to totally disregard any reference to a judge having issued a Temporary Retraining Order, as just referred to by this witness.
The defendant doesn't even have any notice of that application, to object to it. It's basically going before the judge and saying, I have this relationship and this happened. . . . We don't know the ultimate outcome of what that was, nor is it relevant to these proceedings.
So I instruct you that you must not consider that in any way. If there's anybody that can't follow that, I need to know it. Anybody can't follow that instruction?
The record will reflect none of the jurors [raised their hands].
The next morning, defendant moved for a mistrial, arguing that Kabbeko's two references to seeking a restraining order, and Bonsall's testimony that a restraining order had been issued, denied him a fair trial. The judge denied the mistrial motion, reasoning that the curative instruction adequately neutralized any prejudice and that, when asked, no juror expressed any difficulty with accepting and applying the curative instruction the judge had issued.
During the judge's final instructions to the jury, he repeated his earlier instruction that the jury should disregard the testimony that Kabbeko obtained a domestic violence restraining order. The judge stated:
Any testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations. In that regard, I remind you that there was a mention of an application for a Temporary Restraining Order by Ms. Kabbeko. And I instructed you that that is an ex parte proceeding where a person need only tell a judge that there is a certain relationship between the parties. And that there has been an alleged act of domestic violence. And that, based upon hearing that, a judge would issue a Temporary Restraining Order as a, I call it a band-aid approach or at least a prophylactic measure. To ensure that there is a restraint until a full hearing can be heard. Until the defendant has an opportunity to be notified of the application, to be present and have counsel if they wish to have counsel.
So that there can be a full trial. But the Temporary Restraining Order is that which you've heard about. I'm telling you to totally disregard that. It has absolutely has no relevance in this proceeding and that is a limiting instruction.
Which I would expect you could follow because you all told me that you could. And if you there's any doubt about that, someone needs to let me know immediately without embarrassment because it's more important that I know.
And I see nobody indicating to the contrary. [Emphasis added.]
In Point I, defendant argues that the judge committed reversible error when he refused to declare a mistrial after the jury heard Bonsall's testimony that Kabbeko had been granted a restraining order. Defendant also maintains that Kabbeko's reference to the requirement that he return home no later than 8:00 p.m. impermissibly suggested to the jury that he was on ISP, thereby alerting the jury to the fact that he had a prior criminal conviction.
We turn first to defendant's arguments concerning the restraining order. Evidence that a judge has issued a restraining order against a criminal defendant is inadmissible because "[t]he order creates the inference that if a court found defendant guilty of domestic violence in a prior proceeding, that defendant is more likely guilty of the present [offense]." State v. Chenique-Puey, 145 N.J. 334, 343 (1996). In State v. Vallejo, 198 N.J. 122, 133-34 (2009), the Court reaffirmed its prior ruling in Chenique-Puey, reasoning that such evidence not only fostered the suggestion that the defendant was guilty of the crimes charged, but also impermissibly "told the jury that a judicial officer believed the victim, thus bolstering her credibility."
The Court began its analysis in Vallejo with the preliminary observation that despite a judge's efforts to exclude evidence of the existence of a restraining order, such testimony "'often unavoidably comes to the attention of the jury.'" Id. at 132 (quoting State v. Winter, 96 N.J. 640, 646 (1984)). The Court noted:
"The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that not every admission of inadmissible hearsay or other evidence can be considered to be reversible error; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." [Ibid. (quoting State v. Winter, 96 N.J. 640, 646).]
When inadmissible and prejudicial evidence, such as the existence of a restraining order, comes to the attention of the jury, the defendant will be entitled to reversal of his conviction unless the trial judge took the proper steps "to neutralize the negative effects of what transpired." Id. at 134. In Vallejo, the Court issued clear guidelines on what would, in the future, constitute an effective curative instruction: "Generally, for an instruction to pass muster in such circumstances, it must be firm, clear, and accomplished without delay." Ibid.
In Vallejo, the victim testified that the defendant beat her and would not let her leave his apartment for more than twenty-four hours and threatened to harm her if she left. Id. at 125-26. Although the trial judge had issued an order precluding the State from introducing evidence of a prior incident of domestic violence, several witnesses nonetheless testified about the prior incident. Id. at 127-29. The judge instructed the jury that during the trial certain "'things were blurted out that have nothing to do with this case. You can't use any of that blurted out information because that's not part of this case.'" Id. at 129. The judge added:
"Do you understand what I am saying? It's what you heard from the witness stand. Both parties have a right for you to consider only that which was dealt with in this courtroom relating to an incident that happened on May 21, 2005[,] in North Brunswick. Nothing before this, nothing after this. We are on the same page." [Ibid. (alteration in original).]
The Court held that the curative instruction provided by the trial court was flawed and insufficient because it did not identify what was "blurted out" or what information was "not part of this case." Indeed, it suggested that what the jurors "heard from the witness stand" could be considered and that anything that was "dealt with in this courtroom" relating to the May 21, 2005, incident was fair game. . . . Although in the last sentence of the instruction the judge was surely trying to eliminate consideration of the prior bad acts and the subsequent domestic violence order, the language was simply not clear enough or sharp enough to achieve its goal. [Id. at 136-37.]
We are satisfied that the curative instruction provided to the jury in this case does not suffer from the same flaws as the instruction provided in Vallejo. As we have noted, the trial judge promptly addressed the matter when he struck Bonsall's testimony about the issuance of the restraining order and instructed the jury in no uncertain terms that it must disregard that evidence. Moreover, the judge forcefully repeated that same instruction during his final charge to the jury the next day.
Furthermore, unlike Vallejo, where the judge's instruction was "not clear enough or sharp enough to achieve its goal," id. at 137, the instruction issued here by Judge Waters was direct, straightforward, firm and clear. Indeed, defendant does not claim otherwise. Instead, he complains that the giving of the instruction was needlessly delayed. He maintains that the judge should have given the jury a curative instruction after Kabbeko testified about the restraining order, rather than wait until Bonsall referred to the subject the next day. We disagree.
Kabbeko never testified that a restraining order was issued. Instead, she merely explained that she went to police headquarters because she wanted the protection of such an order. Thus, Kabbeko's testimony suffered from none of the prejudicial effects the Court discussed in Chenique-Puey and Vallejo. Her simple statement that she desired the protection of a restraining order did not convey to the jury "that a judge had found defendant guilty of domestic violence in this matter," id. at 133, nor did it create the impermissible inference "that if a court found defendant guilty of domestic violence in a prior proceeding, that defendant is more likely guilty of the present [offense]." Chenique-Puey, supra, 145 N.J. at 343.
For those reasons, there was no need for the judge to issue a curative instruction during Kabbeko's testimony. The only time such an instruction was necessary was when Bonsall definitively stated that a domestic violence restraining order had been issued, and at that time, the judge immediately gave the firm and clear curative instruction that we have described, which was repeated during his final charge to the jury.
Thus, we conclude that the curative instruction Judge Waters provided passes muster because it was "firm, clear, and accomplished without delay." Vallejo, supra, 198 N.J. at 134. Because the curative instruction was forceful and effective, the judge's refusal to grant a mistrial was not error, much less an abuse of discretion. See Winter, supra, 96 N.J. at 646-47 (observing that the decision of whether to issue a cautionary or limiting instruction or to instead impose "the more severe response of a mistrial, is one that is peculiarly within the competence of a trial judge," whose decision is reviewed for an abuse of discretion).
In Point I, defendant also maintains that Kabbeko's reference in her testimony to his being home by 8:00 p.m. impermissibly suggested to the jury that he had a prior criminal conviction. Her testimony was harmless, as it did not suggest to the jury why defendant needed to be home at 8:00 p.m. There could be many reasons for such a requirement, including something as innocuous as working at a job that required him to arrive at an extremely early hour in the morning. Her remarks that "he was on a --" and "had just moved back home" were far too cryptic to be understood by jurors as a reference to ISP. We therefore do not accept defendant's contention that Kabbeko's remarks suggested he had a criminal record. We reject both portions of the argument defendant presents in Point I.
In Point II, defendant maintains that the trial court committed reversible error by not dismissing the entire jury after juror 13 advised a sheriff's officer before opening statements that "she had already made up her mind about the [d]efendant." Defendant argues that during the time period when the jury was left alone with juror 13 while the sheriff's officer left the jury room to advise the judge of the juror's remark, the entire jury became tainted. He maintains that the judge's refusal to declare a mistrial was an abuse of discretion.
Once the judge was informed of the juror's comment, he questioned her individually, and she assured the judge that she had not discussed her sentiments with the other jurors. After accepting the juror's statement that she had not discussed her feelings with any of the other jurors, and had not shown any emotion in the jury room that would have tainted the others, the judge excused juror 13 and proceeded to question the remaining jurors as a group. The judge asked them whether anything had transpired that would interfere with their ability to be fair and impartial and to keep an open mind until they reached a verdict. None of the jurors expressed any difficulty in abiding by that instruction.
We review a judge's decision to proceed with the trial after an irregularity has occurred for an abuse of discretion. State v. Hightower, 146 N.J. 239, 266-67 (1996). In light of the extremely brief period that juror 13 was left alone with the other jurors, and the judge's prompt and direct questioning of the panel to probe for any bias, we are satisfied that the judge's refusal to discharge the jury and start anew was not an abuse of discretion. We thus reject the claim defendant advances in Point II.
In Point III, defendant maintains that the judge erred by permitting the State to impeach him with his three prior convictions. Defendant's prior record consisted of a 2001 conviction for third-degree burglary, a 2004 conviction for third-degree attempted eluding and a 2005 conviction for second-degree drug distribution. Defendant committed the present offenses on December 2, 2006 while on ISP as a result of his 2005 drug distribution conviction. The decision whether to admit a prior conviction into evidence against a criminal defendant for impeachment purposes "rests within the sound discretion of the trial judge," whose discretion "is a broad one." State v. Sands, 76 N.J. 127, 144 (1978). Unless the prior convictions are so remote that their probative value for impeachment purposes is substantially outweighed by their apparent prejudice, a judge's decision will not be disturbed on appeal. Id. at 144-45.
Here, defendant's three prior convictions occurred less than six years prior to the offenses for which he was on trial. We are satisfied that the judge properly exercised his discretion and have been presented with no meritorious reason to question the result the judge reached. We thus reject the claim defendant advances in Point III.
In Point IV, defendant maintains that the trial court committed reversible error by permitting the State to present to the jury Crowell's prior taped statement to police. We reject defendant's contention that the judge erred by admitting Crowell's prior taped statement in its entirety, rather than directing the prosecutor to selectively impeach Crowell with only those portions of her prior statement that were precisely relevant to the question posed. The procedure utilized here fully complied with the standards the Court imposed in State v. Gross, 121 N.J. 1, 9 (1990). Nothing in Gross requires a court to engage in the process defendant describes. We thus reject the claim defendant advances in Point IV.
In Point V, defendant argues that the trial court erred by admitting evidence of his character in violation of N.J.R.E. 404(a). In particular, he points out that Kabbeko testified that he looked "very angry" when he asked her to leave and that she had seen him angry before. Defendant contends that such testimony constituted "improper character evidence" that left the jury with the impression that he "was an angry, aggressive man." He maintains that this evidence "could have led to an improper inference of guilt," in light of the particular nature of the crimes charged. We reject defendant's claim that this testimony was unfairly prejudicial. The remark was harmless, as it consisted only of a brief mention of defendant's prior anger. Defendant's reliance upon State v. Hunt, 115 N.J. 330, 369-72 (1989), is unavailing. The testimony there was far more descriptive and far more extensive than the brief comment here. We thus reject the claim defendant advances in Point V.
In Point VI, defendant maintains that the trial judge committed reversible error when he denied defendant's motion for acquittal. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). When measured by the standard articulated in State v. Reyes, 50 N.J. 454, 458-59 (1967), the State's evidence was more than sufficient to survive defendant's motion for acquittal. We thus reject the claim defendant advances in Point VI.
In Point VII, defendant maintains that the sentence imposed was improper because: 1) the judge discussed the aggravating factors that pertained to the sentence before the jury returned its guilty verdict; 2) the judge's statement of reasons was a "boilerplate" explanation that did not pertain to his case; 3) the judge's findings of the aggravating and mitigating factors were not supported by the record; and 4) the sentence was excessive.
Addressing these arguments sequentially, we are satisfied that the judge's prospective discussion of the sentencing factors at sidebar was both brief and tentative, thereby demonstrating that the judge had not made up his mind about the aggravating factors in advance of receiving the pre-sentence report and hearing defendant's and his attorney's remarks at sentencing. Indeed, the judge stated during sentencing that he had intended to impose a two-and-one-half-year period of parole ineligibility but "reconsidered that based upon what [he heard] from defendant" during the sentencing proceeding.
Next, we agree with defendant that the portion of the judge's written statement of reasons that discussed the "plea agreement [being] fair and in the interest of justice," was improperly included in the statement of reasons. Nonetheless, this "boilerplate," which we believe was a clerical error in the preparation of the judgment of conviction, has no bearing upon the judge's comprehensive and well-reasoned oral remarks during the sentencing proceeding.
Defendant's third and fourth arguments respecting the sentence are entirely meritless. Defendant argues that the imposition of two concurrent five-year terms of imprisonment was an abuse of discretion. It is noteworthy that although the judge imposed the maximum sentence on each count, the judge ordered that the two sentences be served concurrently, not consecutively. Moreover, the judge denied the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender. Had the State's extended term motion been granted, defendant would have faced a ten-year term of imprisonment on each count. We are convinced that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).