March 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1495.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011 -
Before Judges R. B. Coleman and J. N. Harris.
Defendant V.F. appeals from a judgment of conviction stemming from engaging in sexual conduct with his minor daughter. We affirm.
An Essex County Grand Jury returned a ten-count indictment charging defendant with six counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a)(2)(a); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and a single count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a). Two counts were dismissed by the trial court at the conclusion of the State's case, and the jury convicted defendant of the remaining eight counts. The court imposed an aggregate sentence of eleven years imprisonment. This appeal followed.*fn1
J.F., the daughter of defendant, was born and raised in Haiti. Defendant and J.F.'s mother never married. When J.F. was ten years old, she moved to the United States, where she resided with defendant, a stepmother, and a sibling from her father's side of the family. In August 1999, J.F.'s stepmother died. J.F. testified that shortly thereafter, defendant began sexually touching her at least three to four times a week for the next "[t]wo, going on to three years." J.F. was thirteen years old when defendant's conduct started.
Defendant would come into J.F's bed at night, lay on top of her, and "put his hand under [her] shirt . . . put his tongue in [her] mouth, and he once put his hand . . . in her panties."
J.F. stated that defendant never exposed his penis to her or penetrated her, and that he touched her vagina only once.
According to J.F., when she told defendant not to touch her, he would tell her "to shut up," "it's not that serious," or in Creole say, "I'm going to do you," which she took to mean "I'm going to have sex with you." During the last incident J.F. could remember, she recalled defendant coming into her bed and touching her breasts under her shirt and put his hand "in [her] panties." When she tried to push him off, defendant punched her twice.
Following regular instances of this behavior, J.F. noticed moisture on her clothing after defendant had lain on top of her. Two of the garments -- a red skirt and a black pair of shorts that looked like a skirt -- she threw into a basket in her bedroom; the rest of the soiled clothing she washed or threw away. J.F. claimed that she saved the two stained clothing items because she learned in school that "there are certain . . . steps to take" when being sexually abused.
In June 2002, J.F. decided to tell her aunt about the touching after defendant threatened to kill her. J.F. also told her school principal, and her cousin's stepdaughter, about the abuse. The principal reported J.F.'s allegations to the New Jersey Division of Youth and Family Services (DYFS) by telephone, who in turn contacted the police. According to the principal, a DYFS worker and a police officer arrived at her office in less than one hour to meet J.F. after her initial call.
Later, at the police station, J.F. was questioned outside the presence of her aunt and brother. There, she divulged for the first time that she had preserved two articles of stained clothing in a basket in her bedroom. Her allegations were reduced to a typewritten statement which J.F. reviewed and signed.
Defendant was arrested shortly thereafter. The police obtained from defendant consent to search his home. The black shorts and red skirt were collected from J.F.'s bedroom and sent to the New Jersey State Police Forensic Laboratory for testing. The red skirt, but not the black shorts, tested positive for defendant's semen.
During the trial, two witnesses testified on defendant's behalf that they had stayed overnight in J.F.'s bedroom for brief periods of time in 2000, and had never witnessed defendant touch J.F. or climb into her bed at night. One of the witnesses, J.F.'s cousin's stepdaughter, testified that contrary to J.F.'s sworn statement, J.F. never confided in her about any alleged molestation.
Defendant testified in his own defense, maintaining that he never touched his daughter inappropriately and never engaged in any sexual relationship with her. He did admit, however, that his relationship with J.F. had deteriorated ever since he punished her for violating certain house rules. They also disagreed over where J.F. would attend high school.
Defendant explained the presence of his semen on the skirt by relating an incident in which J.F.'s aunt seduced him. According to defendant, he ejaculated onto the floor during this encounter, and J.F.'s aunt may have used an article of clothing from the "children's room" to clean up the ejaculate, although he did not observe the particular article of clothing she used. J.F.'s aunt did not testify at the trial.
On June 24, 2004, defendant was found guilty of four counts of aggravated criminal sexual contact, three counts of endangering the welfare of a child, and one count of terroristic threats. On September 10, 2004, the trial court denied defendant's motion for a new trial and sentenced defendant to concurrent four-year terms on the aggravated criminal sexual contact counts, concurrent seven-year terms on the child- endangerment counts, and a consecutive four-year term on the terroristic threats count, resulting in an aggregate sentence of eleven years.
Defendant first argues that the trial judge erred in rejecting his motion for a mistrial after J.F. testified that she once attempted suicide as a result of the alleged sexual abuse by defendant. He argues that the perceived error, along with the court's failure to give a limiting instruction, denied him his constitutional right to a fair trial under the United States and New Jersey constitutions. See U.S. Const. amend. V, VI, and XIV; N.J. Const. art. I, ¶ 10.
Because the trial court, who heard the case and observed the witnesses, was in the best position to "'to gauge the effect of a prejudicial comment on the jury in the overall setting,'" Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 51 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 647 (1984)), certif. denied, 200 N.J. 210 (2009), we review the trial court's decision to deny a mistrial under an abuse of discretion standard. State v. Goodman, 415 N.J. Super. 210, 234-35 (App. Div. 2010), certif. denied, ___ N.J. ___ (2011).
At trial, near the end of J.F.'s direct testimony, the prosecutor asked if she took any medicine during the period of abuse. Defense counsel immediately objected on the ground that there had been no discovery as to J.F.'s medical records, stating "[w]hat I'm afraid of is, there's going to be testimony that she somehow either committed suicide or took medication." The prosecutor assured defense counsel and the court, "[t]here's nothing going on like that. As far as I know she took aspirin," at which point defense counsel replied "[i]t looked like it was going in the other direction. Okay, that's fine." The subsequent questioning, and more pointedly, J.F.'s response forms part of the basis for this appeal.
When the prosecutor subsequently asked J.F. if she ingested medication during the alleged period of abuse, she responded that she took "[t]ylenol like the stuff that was in the cabinet." Then, when asked why she took the medicine, she stated, "I wanted to kill myself." Defense counsel immediately requested a sidebar and moved for a mistrial, claiming unfair surprise. He argued that he had been provided no discovery as to the medicines J.F. had taken or the fact that she contemplated suicide. Defense counsel stated that the testimony was "unduly prejudicial to his client, [and] something we cannot rebut at this point in time."
The prosecutor admitted that he "had learned she was depressed" and that she had once told him "she wanted to die," but that he did not construe such statements or the ingestion of Tylenol as evidence of a suicide attempt. The court pronounced that the topic was off-limits moving forward, but denied defense counsel's motion, reasoning that "[o]ne never knows what a witness is going to say on the witness stand," and concluding that the State was not "disingenuous in the way that [the prosecutor] conducted [the] direct examination," and "I don't think [defendant was] prejudiced." The trial resumed without any instruction to the jury regarding the use or effect of the five-word statement made by J.F.
Defendant asserts that the court's refusal to grant his motion for a mistrial, coupled with its failure to remedy the supposed prejudicial remark with a curative instruction denied him a fair trial. The State counters that defense counsel never requested a limiting instruction, which it surmises was a deliberate choice made to minimize the effect of the comment and not highlight it further.
We turn first to the trial court's threshold decision to deny defendant's motion for a mistrial. A mistrial is an "extraordinary remedy" that should only be granted to prevent a "manifest injustice." Goodman, supra, 415 N.J. Super. at 234.
Because "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury . . . the record cannot be purged of all extraneous influence." Winter, supra, 96 N.J. at 646. To require a mistrial, the inadmissible evidence must have been so prejudicial as to "'to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Id. at 647 (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "[E]ven in the context of an error of constitutional magnitude . . . 'not any possibility can be enough for a rerun of the trial.'" Ibid.
Given the provocative nature of J.F.'s response and its lack of relevance to the issues before the jury, a curative instruction should have been given. J.F.'s statement that she took medicine because she "wanted to kill [her]self," without more, was more prejudicial than probative. See N.J.R.E. 403. Nonetheless, we find the error harmless beyond a reasonable doubt.
Following the sidebar conference, J.F.'s statement about wanting to kill herself was never repeated or alluded to by the parties, counsel, or the court for the remainder of trial. See State v. Feaster, 156 N.J. 1, 76-77 (1998) (holding that although the trial court should have given a limiting instruction, the fact that the prosecutor did not "comment on the [impropriety] during summation" weighed against a finding of reversible error), cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). Although reliant upon J.F.'s testimony, the State's case relied heavily on scientific evidence to establish defendant's guilt. Moreover, although defendant testified in his own defense -- denying any sexual relationship with his daughter and providing an alternative theory for how his semen ended up on J.F's clothing -- the jury convicted him of all counts in the indictment that were presented to it.
We accept the longstanding principle that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953)). In this case, the stray remark did not prevent defendant from establishing a defense on the merits. See State v. Witte, 13 N.J. 598, 612 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Therefore, in light of the comment's fleeting nature, the ability of the trial judge to gauge the statement's effect on the jury, and the strength of the State's case, the omitted curative instruction was not so unduly prejudicial as to have denied defendant a fair trial and we find no basis for reversal. See State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.), certif. denied, 109 N.J. 54 (1987).
Defendant's next point argues that the prosecutor committed plain error by suggesting, in his summation, that defendant tailored his testimony to comport with that of the other witnesses since he was the last to testify at trial. Specifically, defendant urges that the prosecutor's intimation that defendant concocted the incident with J.F.'s aunt after listening to the testimony before him was "unsubstantiated" by the evidence and sufficiently prejudicial to warrant a new trial. We disagree.
Because defendant did not object to the now-challenged summation remark at trial, we review the perceived misconduct for plain error and will not upset the verdict unless the error was "clearly capable of producing an unjust result." R. 2:10-2; Macon, supra, 57 N.J. at 333. To warrant reversal, "[t]he possibility [of an unjust result] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
Although prosecutors are "expected to assert vigorously the State's case" throughout trial and are given reasonable leeway to do so in summation, State v. Daniels, 182 N.J. 80, 96 (2004), they have a corresponding duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262, (1956)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Prosecutorial misconduct can provide grounds for reversal "where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
When confronted with claimed prosecutorial misconduct on appeal, a court must consider "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." 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). More specifically, an appellate court must consider: "'[(1)] whether defense counsel made a timely and proper objection [; (2)] whether the remark was withdrawn promptly [;] and [(3)] whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Id. at 576 (quoting State v. Ramseur, 106 N.J. 123, 322-23 (1987)). Generally, where defense counsel fails to object when the remarks are made, they will not be deemed prejudicial. Ibid.
This is because failure to raise a timely objection (1) suggests that the remarks were actually of no moment and (2) deprives the court of the opportunity to issue a curative instruction.
Frost, supra, 158 N.J. at 84.
In this case, the prosecutor stated in summation:
Look, put the defendant's testimony generally in context. He's here. He's here from the outset. He's here for all of the testimony. Presumably he has knowledge of the discovery. But he sits and he listens to every single witness as they come and go, pays attention to what's said. And besides what they say, there are certain insurmountable facts. And when he decides that he's going to tell you his version of events, he's weaving a carpet here. And in the pattern of the carpet are elements he can't get past. Like the DNA. And his version doesn't even attempt to say that it's not his DNA. That's insurmountable. There's no way he can get past that.
In furtherance of his position, defendant cites our Supreme Court in Daniels. There, the Court reversed and remanded for a new trial when a prosecutor, in his summation, commented on defendant's ability to tailor his testimony by virtue of his presence at trial. Daniels, supra, 182 N.J. at 85. In Daniels the prosecutor stated in his summation the following:
Now, I said that the defendant in his testimony is subject to the same kinds of scrutiny as the State's witnesses. But just keep in mind, there is something obvious to you, I'm just restating something you already know, which is all I do in my summation, the defendant sits with counsel, listens to the entire case and he listens to each one of the State's witness[es], he knows what facts he can't get past. The fact that he was in the SUV. The fact that there's a purse in the car. The fact that a robbery happened. But he can choose to craft his version to accommodate those facts. [Id. at 87.]
Although the defendant in Daniels did not object at trial, the Court reversed and remanded for a new trial, noting that to allow such comments in the State's summation effectively "punish[es]" the defendant for exercising his right to confrontation. Id. at 98. In so doing, it "issued a blanket prohibition against a prosecutor's 'drawing the jury's attention to defendant's presence during trial and his concomitant opportunity to tailor his testimony' during summation." State v. Feal, 194 N.J. 293, 298 (2008) (quoting Daniels, supra, 182 N.J. at 98). While holding that "the State cannot call the jury's attention to the defendant's presence at trial, a place where the defendant is constitutionally authorized to be," Daniels, supra, 182 N.J. at 99-100, the Court confirmed that a reviewing court should only reverse when such misconduct is "'so egregious that [it] deprived the defendant of a fair trial.'" Daniels, supra, 182 N.J. at 96 (quoting Frost, supra, 158 N.J. at 83).
The comments made in the prosecutor's summation in Daniels are similar to those made in this case. This is not entirely surprising because the trial in this matter was conducted in June 2004, and Daniels was decided six months later, in December 2004.*fn2 Therefore, as a threshold matter we conclude that the contested statements themselves were improper. To require reversal, however, not only must the statements have been "clearly and unmistakably improper," they must have also "substantially prejudiced" defendant by their unqualified admission at trial. Timmendequas, supra, 161 N.J. at 575.
Here, although the prosecutor did not state outright that defendant fabricated the incident with J.F.'s aunt in his summation, he did "highlight[ ] the fact that defendant was able to 'sit' in the courtroom during trial, enabling him to 'listen' to other witnesses testify." Daniels, supra, 182 N.J. at 101. Furthermore, although the trial court in this case issued a model instruction in its charge, reminding the jury to differentiate between actual evidence and mere commentary by counsel or the trial court, it was similar to the instruction that the Court in Daniels found insufficient to "cure the prosecutor's comments." Id. at 102.
Unlike Daniels, however, where the outcome of the case hinged on the credibility of the State and defendant's witnesses, the DNA match in this case was a highly persuasive aspect of the State's case, regardless of how credible defendant's testimony was concerning his encounter with J.F.'s aunt. See Frost, supra, 158 N.J. at 87. The fact that defense counsel failed to timely object to the remarks also militates against any unduly prejudicial effect. See Timmendequas, supra, 161 N.J. at 576. Therefore, even if the prosecutor's remarks in summation were "clearly and unmistakably improper," it cannot be said that they "substantially prejudiced" defendant in presenting the merits of his defense. Id. at 575.
In defendant's final point he challenges the eleven-year sentence as excessive. Defendant received concurrent four-year terms on the four aggravated criminal sexual contact counts, concurrent seven-year terms on the three child-endangerment counts, and a consecutive four-year term on the one count of terroristic threats. Although he urges us to recognize that the only justified sentence would be for a minimum term, defendant argues that the maximum cumulative sentence should have been eight years: five years on the child-endangerment counts, plus three years on the aggravated criminal sexual contact counts and terroristic threats count.
We review sentencing decisions under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Absent a "clear error of judgment or a sentence that 'shocks the judicial conscience,'" we will not reverse a sentencing decision that is supported by sufficient credible evidence in the record. Ibid. (quoting State v. Roth, 95 N.J. 334, 364 (1984)). With regard to the application of aggravating and mitigating factors, as long as the factual findings undergirding a particular factor are "supported by substantial evidence in the record," State v. Cassady, 198 N.J. 165, 180-81 (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)), the trial court "need fear no second-guessing." Roth, supra, 95 N.J. at 365; see also State v. Bieniek, 200 N.J. 601, 612 (2010).
The trial court found two aggravating factors to exist: (1) "[t]he gravity and seriousness of the harm inflicted on the victim" and (2) "[t]he need [to deter] the defendant and others," N.J.S.A. 2C:44-1(a)(2); -(9). On the opposite side of the sentencing ledger, the trial court found one mitigating factor: defendant's lack of prior criminal history, N.J.S.A. 2C:44-1(b)(7). Concluding that the two aggravating factors preponderated over the sole mitigating factor, the court imposed mid-range sentences.
Defendant asserts that J.F.'s age should not have been considered as an aggravating factor since the victim's age was an element of the crime charged, aggravated criminal sexual contact. N.J.S.A. 2C:14-3(a); N.J.S.A. 2C:14-2(a)(2). The State urges that the trial judge considered more than J.F.'s age in finding aggravating factor two, such as her vulnerability as a recent immigrant to the United States, the physical size of defendant as compared to J.F., and her limited means for escape from her situation.
In determining whether "[t]he gravity and seriousness of the harm inflicted on the victim," should constitute an aggravating factor for sentencing purposes, the court "should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim." State v. Kromphold, 162 N.J. 345, 358 (2000). Here, the court considered J.F.'s immigrant status and the fact that the accused was her parent and the person "she looked to for support, for guidance, for spiritual nourishment, and all the other things that a child would look to a parent for." Acknowledging that the victim's age is "built into the offense," the court emphasized that this was not an isolated incident, but a course of conduct that spanned over two years. Accordingly, while we acknowledge that facts that go to establishing "elements of a crime . . . should [generally] not be considered as aggravating circumstances in determining that sentence," we are convinced that there was an adequate factual basis to support aggravating factor two, apart from the victim's youth. Kromphold, supra, 162 N.J. at 353 (citing State v. Yarbough, 100 N.J. 627, 633 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)).
Because the aggravating and mitigating factors applied were adequately supported by evidence in the record and since defendant's sentence is within appropriate statutory terms, we have no basis to disturb the aggregate sentence.