August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL S. HOWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean ounty, Indictment No. 07-02-0392.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Grall and LeWinn.
Tried to a jury, defendant was convicted of five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and -2(a)(2)(a); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(a). He was sentenced to an aggregate term of forty years with a thirty-four-year parole ineligibility period, and assessed over $18,000 in penalties. We reverse and remand for a new trial.
The victim was defendant's step-niece, C.N., the daughter of his brother's wife. The indictment charged a course of sexual acts by defendant over a two-year period from June 2004 to September 2006, when the girl was between twelve and fifteen years old.
C.N. lived with her biological father, P.N., in Jackson, New Jersey, but would frequently visit her mother M.H., in Manchester, New Jersey on weekends, holidays and for extended periods of time during her summer vacation. M.H., her husband, P.H., and their two children shared a home with defendant, his wife and two children.
C.N. described her relationship with defendant initially as "an uncle/niece relationship." During the summer of 2004 when C.N. was twelve years old and staying with her mother, defendant engaged C.N. in a discussion of whether she had ever been kissed, and persuaded her to "practice kissing" with him. C.N. stated that she initially rejected defendant's attempts but finally gave in. C.N. stated that defendant told her not to tell anyone about the kissing "[b]ecause he c[ould] get into trouble."
C.N. testified that the kissing eventually "led to other things[,]" such as stripping to their underwear, lying together, kissing and touching. C.N. testified that defendant fondled her private areas with his hands while she was wearing underwear. These episodes would occur when defendant's wife and children were not home.
Sometime during the summer of 2004, before C.N.'s thirteenth birthday, defendant had vaginal intercourse with her in his bedroom. Again, defendant told C.N. not to tell anyone because, if she did, "he would get into trouble and the family would fall apart."
In September 2004, C.N. returned to her father's home to begin her eighth grade school year; defendant would talk to her by telephone frequently telling her "I love you" at the end of each conversation. During this time, C.N. described their relationship as "almost like a romantic type of relationship." After C.N. turned thirteen, she and defendant continued to engage in intercourse, as well as oral sex. This relationship continued through 2005 and into 2006.
Sometime during her eighth-grade school year, C.N. told a friend and a teacher about her relationship, but referred to defendant as "a kid from Manchester named Mike." When C.N. entered ninth grade in 2005, she gave another friend a note about "Mike from Manchester," as well. When C.N.'s stepmother discovered the note, C.N. reassured her and her father that it was a joke.
C.N. testified that defendant gave her a Valentine's Day card in February 2006, containing a handwritten message which read, "I love you me [sic] than words can say. I miss you all the time. I can't stop thinking about you. You are always in my mind. This card says it all. P.S.: Make love with me."
C.N. was staying at her mother's home at the time and she testified that defendant "came up to [her] room and handed [her] the card[,]" telling her "to make sure no one finds the card."
C.N. stated that when she returned to her father's home from that visit, she brought the card with her.
C.N. testified that toward the end of her freshman year in high school, in or about June 2006, she "would do things to make sure that [she] wasn't available to [defendant]." She would stay in her room with her mother, or talk on the phone in her room with her friends. She stated that defendant "never really said anything, but he would just bug [her] about it[,]" interrupting her when she was on the telephone and asking her if she "was going to do anything?"
C.N. testified that the "frequency of [her] sexual activity with [defendant]," changed during that time; "[i]t got to be less. . . . Instead of it being every night when [she] was there it was maybe just one time when . . . [she] was there. . . . One time on the weekends or one time during the week in the summer."
C.N. stated that she wrote a note for her friends, describing her sexual activities with "Mike from Manchester." In September 2006, during a weekend at Wildwood with her mother, stepfather and defendant and his family, C.N.'s mother found the note; C.N. refused to discuss it with her mother at that time. During that same weekend, C.N. and defendant had an unpleasant exchange when the family boarded a "tram car" and there was no room for C.N. and her stepsister.
The next day, C.N. told one of her friends about her mother finding the note and, for the first time, admitted that "Mike from Manchester" was, in fact, defendant. The friend's stepmother advised C.N. to tell her mother about it.
Later that day, C.N.'s father and stepmother came to pick her up in Manchester. C.N. was upset, and when she returned to her father's home, she asked to speak to her stepmother alone, started crying, and told her about her sexual relationship with defendant. C.N. then told her father, P.N., who drove to Manchester and told her mother that C.N. had been "raped" by defendant.
P.N. overheard a conversation in which defendant was confronted by his brother, P.H. who told defendant about C.N.'s accusation. P.N. heard defendant say, "we were fooling around, that's it."
P.H. testified that he confronted defendant about C.N.'s accusation, asking him, "did you do it"; and defendant answered, "yes."
Defendant testified and denied all of C.N.'s accusations.
He stated that he was never alone in the home with C.N., nor did he ever take her out alone.
Regarding the tram incident in Wildwood, defendant testified that he, his brother and their wives got on the tram; C.N. was sitting on a bench. Defendant told her there was room for her in the tram and "she didn't want that. So [he] said all right. So when the tram . . . started to go and then she kind of flipped me the bird, gave me the middle finger. So I got really mad and I told her to go "F" herself."
Defendant stated that when he answered "yes" to his brother's question, "did you do it?" he thought the reference was to the tram incident. Defendant also acknowledged that he had cursed at C.N. before because "[s]he used to whine over everything and [he] used to call her a big cry baby."
Regarding the Valentine's Day card, defendant testified that he bought it and inscribed it with the intention to give it to his wife. He "had it on the table downstairs in the kitchen[,] . . . started writing it out" but did not get a chance to finish and he left the card on the table. He did not know if C.N. "stole [the card] or not, but it was gone." He acknowledged that the card was not specifically addressed to a "wife," but denied that he intended the card for anyone else.
Following the prosecutor's cross-examination, the trial judge questioned defendant as follows:
Q: Just from a time frame clarification. That card, the Valentine's [D]ay card --
Q: You purchased this card for your wife in 2006?
Q: You went to a store and picked it out?
Q: And it is your testimony that you were writing it out at the upstairs kitchen table?
A: No. I was writing it downstairs.
Q: So you were downstairs at your kitchen table downstairs?
Q: And you got interrupted, you don't remember by what, and you were going to come back and finish writing it out to your wife?
Q: What's your wife's name?
Q: And when you came back you couldn't find the card?
Q: And that was in February of 2006?
Q: And is it your testimony that you never had any cross words with [C.N] until that day in September of 2006?
A: You mean fighting?
Q: Cross words, like where you told her to go fuck herself.
A: Yes, in September.
Q: They are your words, not mine.
A: My words, yes.
Q: And you did that in September over this tram ride?
Q: Can you tell me why or when she would have had an opportunity to take this card and why she would have taken it in February if she wasn't mad at you until September?
A: I don't know.
Q: And do I understand you to . . . say that the interaction that she testified to between you and her, the kissing and all the other things, never happened at all?
A: Never happened.
Q: And that because -- the only thing you can figure is that because you told her on that day in September to go fuck herself rather than ride on the tram, she made all this stuff up about you?
A: I think it is more than that. I think she was jealous.
Q: Jealous of what?
A: Of my wife and family.
Picking up on the judge's last question, the prosecutor pursued the issue of C.N.'s purported "jealousy[.]" Defendant stated that it "was probably more than that. . . . I do a lot with my kids and her family doesn't do a lot with her." Immediately following this exchange, the defense rested and court adjourned for the day.
On appeal, defendant raises the following contentions for our consideration:
THE TRIAL COURT'S CROSS-EXAMINATION OF THE DEFENDANT WENT BEYOND PERMISSIBLE BOUNDS, AS THE JUDGE'S RIGOROUS QUESTIONING UNDERMINED DEFENDANT'S EXPLANATION OF THE EVIDENCE INTRODUCED AGAINST HIM, AND THEREBY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
THE COURT ERRED IN PERMITTING THE INTRODUCTION OF HEARSAY TESTIMONY FROM MULTIPLE WITNESSES CONFIRMING C.N.'S REVELATION OF ABUSE BY DEFENDANT, AND BY REFERENCING ONLY A SMALL PORTION OF THAT TESTIMONY IN ITS FRESH COMPLAINT JURY INSTRUCTION. (Not Raised Below)
A. C.N.'s Testimony
B. Alyssa's Testimony
C. Deanna's Testimony
D. Peter's Testimony
E. Patrick's Testimony
THE INCOMPLETE JURY VERDICT SHEET DEPRIVED DEFENDANT OF HIS RIGHT TO HAVE THE JURY DELIBERATE ON EVERY ESSENTIAL ELEMENT OF THE CHARGED CRIMES, AND WAS NOT CURED BY THE COURT'S OPEN COURT JURY POLL ON WHETHER THE MISSING ELEMENT WAS UNANIMOUSLY FOUND. (Not Raised Below)
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE, DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
THE 40-YEAR PRISON SENTENCE WITH 34-YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The Sentences on Counts One and Two are Excessive.
B. The Court Erred in Imposing Consecutive Terms.
THE AGGREGATE $18,232.50 MONETARY PORTION OF THE SENTENCE CANNOT BE SUSTAINED.
A. The $2,527.50 Restitution Order Was Improper.
B. The $8,750 Sex Crime Victim Treatment Fund Penalty Was Excessive, and Not Imposed Following an Ability to Pay Inquiry
We concur with defendant's first contention regarding his cross-examination by the trial judge. We note that this point is raised as plain error; we are satisfied, however, that the manner in which the trial judge interjected himself into the trial proceedings, and the nature of his questioning, were "clearly capable of producing an unjust result . . . ." R. 2:10-2. As defendant asserts, "the jury's resolution of this case was entirely dependent upon [it] crediting the testimony of either the victim or the defendant." In such circumstances, it is particularly important that trial courts . . . use great restraint in questioning witnesses in order not to influence the jury. . . . [T]rial judges are "imposing figure[s]"; to jurors, they symbolize "experience, wisdom and impartiality." Therefore, if a judge's questions "suggest disbelief, the impact upon the jurors may be critical." This is especially true when the outcome of a case rests "primarily and necessarily" on the jury believing or rejecting a defendant's version of events.
[State v. Taffaro, 195 N.J. 442, 451 (2008) (citations omitted).]
The manner in which the trial judge questioned defendant contrasted sharply with the questions he posed to C.N. and her father, P.N. Cross-examination of C.N. concluded with a series of questions as to why she waited so long to make these allegations against defendant to her parents. The judge then pursued that line of questioning with C.N. as follows:
Q: [Defense counsel] has asked you several times, isn't it true you could go upstairs, you could have told somebody, at any time you could have told them?
Q: He's asked you several times, did [defendant] force you to do these things?
Q: You said no?
Q: Would it be fair to say that as a 12-, 13- and 14-year-old girl having a love affair with an older man, that you didn't object to that?
Q: And as it went on, maybe you were even a little excited about that sneaking around having sex as a young girl being the first girl of your group doing it?
Q: Kind of?
Q: And then you knew it was unseemly, so you didn't want to tell anybody?
Q: So part of you was keeping a dark secret and the other part of you was a little excited about it?
Q: Is that why you didn't tell anybody?
At the conclusion of this exchange, the judge told the jury that it should understand that when the [c]court asks questions of a witness or gets involved in a colloquy about the testimony and the evidence it is for the sole purpose of eliciting information for your benefit. And you are not to draw any inference from the fact that the [c]court asked any such questions. . . . I listen to the evidence and . . . if I have a question that I think perhaps would be helpful to you, and I speculate a little bit that maybe you would like to have the question asked, that's when I ask a question. If you find it helpful, it is for the purposes [sic] of getting information for you to use and for no other reason.
When P.N. testified about overhearing the conversation between defendant and his brother, P.N. expressed some uncertainty about the precise words defendant spoke. He reviewed a statement he had given to the police to refresh his recollection.
At the conclusion of P.N.'s testimony, the trial judge questioned him as follows:
THE COURT: What's the date of this statement that you gave to the police?
THE WITNESS: September 18th.
THE COURT: September 18th of what year?
THE WITNESS: 2006.
THE COURT: And that's the day after you went there and had this confrontation?
THE WITNESS: Yes.
THE COURT: Would it be fair to say your recollection of the events was probably better the day you gave the statement than today?
THE WITNESS: Much more vivid. Your Honor.
In his charge to the jury, the judge stated:
I remind you that if I've asked any questions -- and I did ask some questions --of witnesses in this case, I remind you it was for the sole purpose of eliciting information for your benefit. And you are not to draw any inference from the fact that I asked any such questions. Questions asked by the [c]court are not to be taken as being an indication of any belief by the [c]court that the [c]court has an opinion as to how the case should be decided.
We note that the language used by the trial judge when instructing the jury on the purpose of his questioning witnesses, was itself inappropriate and did not comport with the model charge, which reads:
The fact that I may have asked questions of a witness in the case must not influence you in any way in your deliberations. The fact that I asked such questions does not indicate that I hold any opinion one way or the other as to the testimony given by the witness. Any remarks made by me to counsel or by counsel to me or between counsel, are not evidence and should not affect or play any part in your deliberations.
[Model Jury Charge, (Criminal), "Criminal Final Charge, Judge's Questioning" (November 4, 2002).]
The fact that the judge told the jury, on two occasions, that his questioning was "for the sole purpose of eliciting information for [the jury's] benefit," further compounds the error engendered by the questions themselves.
As noted, the tenor of the judge's questions to defendant, which quite clearly implied a certain degree of incredulity on the part of the judge, contrasted sharply with his questions to C.N. and P.N., which were solicitous in nature, and tended to rehabilitate any "damage" caused by cross-examination, thereby reinforcing their credibility before the jury.
The Supreme Court has recently reaffirmed the principle that the type of improper judicial conduct present in this case, in and of itself, deprives a defendant of a fair trial and, therefore, will lead to reversal of the convictions resulting from that trial. In State v. O'Brien, 200 N.J. 520 (2009), the Court "reaffirmed the well-established principle" stated in Taffaro, supra, 195 N.J. at 451, that, in presiding over a jury trial, the judge, who holds a powerful symbolic position vis-à-vis jurors, must maintain a mien of impartiality and must refrain from any action that would suggest he favors one side over the other, or has a view regarding the credibility of a party or a witness.
When a judge questions a witness in such a way that he takes over the role of the prosecutor, it can give the jury the impression that the judge does not believe the witness, and that impression can deny the defendant his right to a fair trial. Not showing bias is particularly important when a criminal defendant is testifying, and judge must scrupulously insure that his questions do not evidence disbelief.
[O'Brien, supra, 200 N.J. at 523, 535 (citation omitted).]
Here, we are confident that the judge's questions to defendant "likely communicated to the jury that defendant's credibility should be seriously doubted. Indeed, none of the judge's questions elucidated facts not already clearly communicated to the jury several times." Id. at 537.
The prosecutor extensively cross-examined defendant about his testimony regarding the Valentine's Day card. Under the circumstances, the judge's questions re-visiting that testimony could only have served to inform the jury that the judge found it incredible. "[W]hile it is proper for judges to attempt to clarify testimony, they should not press defendants when the meaning of their responses is 'perfectly plain.' Questions of that sort may express incredulity and prejudice a defendant."
Taffaro, supra, 195 N.J. at 451.
Because we are satisfied that "the judge's questioning was gratuitous and evidenced incredulity with respect to defendant's . . . defense, along with support for the State's witness[es,]" O'Brien, supra, 200 N.J. at 539, we conclude that defendant was deprived of his right to a fair trial.
In the event of a retrial in this matter, we briefly address defendant's contention that the trial judge erred in failing to hold a hearing to determine the admissibility of fresh complaint evidence. Testimony by two of C.N.'s friends, as well as that of her father and stepfather, contained hearsay references to C.N.'s description of her relationship with defendant. Such testimony clearly bolstered C.N.'s allegations.
The term "fresh complaint" has been used rather loosely from time to time to refer to three discernibly different but related concepts. The common thread linking them is that they all deal with statements made by victims of some type of criminal sexual offense or child abuse, at a time when the details are still fresh in their minds, which relate something about the incident to third parties.
[Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2010).]
On remand, these statements shall not be admitted into evidence unless the State is able to establish a basis for admissibility.
We need not address defendant's remaining arguments, except to note that in the event of a retrial the jury verdict sheet should properly reflect all elements of the crimes charged. Defendant's sentencing arguments are moot in light of our decision.
Reversed and remanded.
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