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State of New Jersey v. Michael A. Parlin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. PARLIN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-11-0447.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Defendant Michael Parlin appeals from his conviction and sentence after trial by jury on charges of sexual assault and endangering the welfare of a ten-year-old girl. We affirm.

The prosecution presented evidence at trial from which the jury could have found the following facts. Defendant was a life-long friend of the child's mother, and he stayed at their home from time-to-time. They affectionately called defendant "Uncle Big Bird" because of his size.

On the night of December 28-29, 2005, defendant was in the basement with the girl playing video games and watching television. The mother went to bed in her own room at about 10:00 p.m. The girl fell asleep on a couch in the basement next to defendant. She woke up in the middle of the night and felt one of defendant's hands down her pants and the other under her shirt touching her breast. Startled, the girl got up and went to her room.

At about 2:00 a.m., the mother woke up and saw that her daughter's bedroom light was on and the girl was awake looking "shocked." She questioned her daughter, and the girl said: "it's Uncle Big Bird . . . I fell asleep down there and when I woke up his hands were in the wrong place." The girl then described in detail what she felt, demonstrating on her knee how defendant was "twirling his finger around [her] nipple." To make sure her daughter understood the seriousness of her accusation, the mother said she would order defendant to leave the house and asked whether she understood she would never see Uncle Big Bird again. The girl answered she understood and wanted defendant to leave. The mother went to the basement, awakened defendant by hitting him with a shoe, and screamed at him to leave the house. Defendant left.

The next day, the girl complained of pain when she used the bathroom, and the mother took her to the police. A detective from the prosecutor's office spoke to the girl, videotaping the entire interview. The girl explained and demonstrated on a doll that defendant had touched her breast and vaginal area. Her statement indicated some level of digital penetration, although not in literal or detailed language. Despite police advice, the mother decided not to have her daughter examined by a doctor.

On December 30, 2005, a detective from the State Police interviewed defendant after defendant signed a form waiving his Miranda*fn1 rights. Defendant denied any wrongdoing. He said he had been playing video games and watching television with the girl, but he fell asleep on a couch and the girl went upstairs to her room. After the initial police interview, defendant was held in custody.

On January 2, 2006, defendant agreed to a polygraph examination. Before the examination began, a State Police lieutenant again advised defendant of his Miranda rights, and defendant again signed a waiver form. After questioning defendant in separate segments during a two-hour period, the lieutenant told defendant that the polygraph had detected deception about the sexual conduct. Defendant then made the following admission:

I was sitting on the couch next to [the girl], I fell asleep, when I woke up my hand was down the front of her pants . . . My other hand was on her breasts outside of her shirt . . . I woke up, realized what I had done. I said whoa, and took my hand off of her . . . I'm not proud of what I did.

Another detective entered the room to interrogate defendant further. He advised defendant of his Miranda rights once again. Defendant signed a waiver form for a third time and gave a videotaped statement in which he made admissions similar to those quoted above.

Defendant was indicted in November 2006 on three counts: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault of a child under the age of thirteen, N.J.S.A. 2C:14-2b; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He filed a number of pretrial motions, including motions to suppress his statements to the police and to suppress the videotaped statement of the girl and the statements she had made to her mother soon after the incident. The trial court conducted pretrial evidentiary hearings and denied defendant's motions.

Trial before the jury was conducted over six days in April 2008. The prosecution presented the testimony of the girl and her mother, as well as the police detectives who had taken statements from the girl and defendant. Both videotaped statements were admitted in evidence and were available for the jury's viewing during its deliberations.

Defendant elected not to testify. He presented the testimony of his mother and a friend to establish that he suffered from sleep disturbances. The prosecution then presented rebuttal testimony to refute his allegations of sleep walking or any other sleep disorder.

In summation, defense counsel argued to the jury that defendant was not aware of the sexual conduct alleged because he was asleep and his disorder was the cause of the alleged contact with the girl. Among other points, the prosecutor's summation challenged the credibility of those defense arguments.

The jury found defendant not guilty of first-degree aggravated sexual assault, which required a finding of penetration, but guilty of second-degree sexual assault and third-degree endangering the welfare of a child, both of which did not require penetration as an element of the crimes. The court subsequently denied defendant's motion for a new trial.

At the sentencing hearing on September 4, 2008, the court merged the two counts of conviction and sentenced defendant on the charge of second-degree sexual assault to ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, which means that defendant is not eligible for parole until he serves eighty-five percent of that term and he must serve three years of parole supervision upon release from prison. In addition, defendant was sentenced to pay mandatory fines and penalties and advised that he is subject to the requirements of Megan's Law, including the registration, notification, and supervision for life requirements contained in N.J.S.A. 2C:7-2 to -11. Defendant filed a timely notice of appeal.

Defendant now raises the following arguments:

POINT I

THE INCRIMINATING STATEMENT MADE BY MR. PARLIN SHOULD NOT HAVE BEEN ADMITTED DURING THE STATE'S CASE-IN-CHIEF AS MR. PARLIN DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHTS BEFORE TALKING TO POLICE (NOT RAISED BELOW).

POINT II

THE ADMISSION OF HEARSAY TESTIMONY DEPRIVED MR. PARLIN OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT III

THE PROSECUTOR'S COMMENTS ON MR. PARLIN'S SILENCE DURING POLICE INTERROGATION VIOLATED HIS RIGHT AGAINST INCRIMINATION AND DEPRIVED HIM OF A FAIR TRIAL (NOT RAISED BELOW).

POINT IV

THE PROSECUTOR'S COMMENTS IN SUMMATION DENIGRATED THE DEFENSE AND DEPRIVED MR. PARLIN OF A FAIR TRIAL (NOT RAISED BELOW).

POINT V

THE TRIAL COURT ERRED IN DENYING MR. PARLIN'S MOTION FOR A MISTRIAL AT THE CONCLUSION OF THE STATE'S SUMMATION AND FOR A NEW TRIAL BEFORE SENTENCING BASED ON IMPROPER COMMENTS BY THE PROSECUTOR IN SUMMATION REGARDING MR. PARLIN'S FAILURE TO SEEK TREATMENT FOR HIS SLEEP DISORDER AFTER THE ALLEGED OFFENSE.

POINT VI

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY IN ACCORDANCE WITH A CHARGE ON DIMINISHED CAPACITY DEPRIVED MR. PARLIN OF A FAIR TRIAL (NOT RAISED BELOW).

POINT VII

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT VIII

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

Defendant also filed a pro se brief in which he raised the following additional arguments:

POINT [I]

THE COURT RECORD CONTAINS ERRORS, OMISSIONS, FRAUDULENT DATES, MISSING DATES, AND MISSING TRANSCRIPTS[,] WHICH SOMEONE ALTERED THE RECORD FILED WITH THE COURT AND EITHER FAILED TO MAKE THE REQUIRED ENTRY OR DELETED AFTER IT WAS MADE[,] DEPRIVING THE DEFENDANT OF DUE PROCESS. N.J. CON[S]T[.], ART. 1, PAR. 1; U.S.C.A. AMEND. 14. (Not Raised Below)

POINT II

THE PROSECUTOR[']S ACTIONS[ ] DENIED THE DEFENDANT NOTICE OF THE CHARGES, THE ASSISTANCE OF COUNSEL AND A FAIR AND SPEEDY TRIAL. N.J. CON[S]T. ART. 1, PAR. 1, N.J. CON[S]T. ART. 1, PAR. 10[,] U.S. CON[S]T. AMEND. 6, U.S. CON[S]T. [AMEND.] 14.

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE JURY UNFETTERED ACCESS[ ] TO VIEW THE VIDEO TAPED STATEMENTS[ ] AND ACCESS TO THE TRANSCRIPTS DURING DELIBERATIONS. (Not Raised Below) POINT IV

THE TRIAL COURT ERRED IN REPLAYING [THE GIRL'S] TESTIMONY FROM THE TRIAL, WITHOUT INQUIRING WHAT THE JURORS [WERE] SEEKING, OR

OFFERING A READING OF THE TRANSCRIPT. (Not Raised Below).

Most of the points argued before us are subject to the plain error standard of review because they were not raised before the trial court. Under the plain error standard, a conviction will be reversed only if an error "not brought to the attention of the trial . . . court" was "clearly capable of producing an unjust result." R. 2:10-2. The error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008); State v. Macon, 57 N.J. 325, 336 (1971). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).

I.

Defendant contends that admission of his statements to the police violated his rights against self-incrimination under the Fifth Amendment of the United States Constitution and under State common law. He does not raise a general challenge to the sufficiency of evidence upon which the trial judge denied his motion to suppress the statements. Instead, he argues his waiver of rights was not knowing and voluntary because the State Police were required to re-advise him of his Miranda rights after he failed the polygraph. He also contends that the State Police did not advise him that the polygraph results would be inadmissible as evidence in court.

These arguments were not raised during the suppression hearing, and therefore, defendant's contentions are subject to the plain error standard of review. We conclude that neither contention establishes error in the manner of police questioning.

In State v. Melvin, 65 N.J. 1, 6, 14 (1974), the Court held that Miranda warnings given before a polygraph examination were adequate; the police were not required to repeat the warnings before interrogating the suspect further. Recently in State v. Nyhammer, 197 N.J. 383, 401, cert. denied, __ U.S. __, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), the Court held that once a suspect has been apprised of his Miranda rights, the police are not required to repeat the warnings in the absence of a significant intervening event. In Nyhammer, the Court concluded that such an intervening event had not been shown where the questioning of the defendant originally focused on another person's involvement in sexual abuse of a child and later turned to defendant's own conduct only after he revealed relevant incriminating information. In those circumstances, the police were not required to re-administer Miranda warnings. Id. at 408-10. Furthermore, the Court held that the Miranda line of cases did not require the police to inform a defendant that he was a suspect in the investigation. Id. at 407-08.

In this case, defendant was given Miranda warnings three times, and he signed a waiver form each time. The State Police lieutenant began the polygraph session by advising defendant of his rights, and the rights were repeated once again before his videotaped statement was taken. The police were not required to repeat the warnings yet another time between those two events simply because defendant failed the polygraph and the police informed him of the failure.

Nor can defendant point to any constitutional authority for the proposition that the police are required to inform a suspect of the inadmissibility of a polygraph. Cf. State v. Morton, 155 N.J. 383, 450 (1998) (use of polygraph did not affect voluntariness of the defendant's waiver of right against self-incrimination); State v. Gerald, 113 N.J. 40, 54-55, 120-21 (1988) (police informed the defendant that polygraph showed deception, after which defendant confessed).

In conducting interrogation, the police sometimes tell a suspect they have obtained incriminating evidence as a tactic to persuade the suspect to confess. They are not obligated at the same time to assess the admissibility of evidence they have gathered and to provide legal advice about whether that evidence can be used against the suspect in the courtroom.

We have held that the police may not create false evidence to persuade a suspect to confess, State v. Patton, 362 N.J. Super. 16, 30-32 (App. Div.), certif. denied, 178 N.J. 35 (2003), but the police do not violate a defendant's constitutional rights if they elicit a confession merely by making false claims of having incriminating evidence. See State

v. Manning, 165 N.J. Super. 19, 30 (App. Div. 1978) (police are not outright prohibited from eliciting a confession by telling a suspect that an accomplice has already confessed and implicated the suspect, even if that claim is not true) (citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684, 693 (1969)), rev'd on other grounds, 82 N.J. 417 (1980). If the police can provide inaccurate information to a suspect to induce a confession, they cannot logically be held to a constitutional duty to give admissibility advice when they have true incriminating information.

We reject defendant's claim that the police violated his right not to incriminate himself by failing to re-advise him of his Miranda rights or to give him legal advice about the inadmissibility of polygraph evidence.

II.

Defendant argues that the trial court erred in allowing the mother to testify about her daughter's responses when asked whether she understood she would never see defendant again. Defendant contends that testimony was inadmissible hearsay and improper bolstering of the girl's credibility.

Defendant made a pretrial motion to bar the girl's out-of-court statements as a whole without specifying the ground now raised on appeal, and he did not object specifically at trial to the portion of the mother's testimony now challenged on appeal. We conclude that admission of the girl's statements in their entirety was not plain error.

The trial court conducted a pretrial hearing in accordance with N.J.R.E. 104 and ruled that the girl's statements to her mother on the night of the incident were admissible under N.J.R.E. 803(c)(27). That rule of evidence, sometimes called "the tender years exception" to the hearsay rule, State v. D.G., 157 N.J. 112, 115 (1999), provides in relevant part:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . . [(Emphasis added).]

Defendant argues that the girl's understanding that defendant would be ordered to leave was not a statement relating to sexual misconduct, as expressly required by the rule. However, the challenged evidence was part of the overall statement of the girl that, through careful consideration of the requirements of N.J.R.E. 803(c)(27), the trial court found had met the procedural and substantive requirements for admission.

Furthermore, the testimony was not improper bolstering of the girl's credibility. Similar questions could have been asked directly of the girl at trial to establish that she understood the implications of her accusations against defendant. The mother's exchange with her ten-year-old daughter in that regard was conceptually not different from asking the child whether she was telling the truth.

We reject defendant's argument of inadmissibility under N.J.R.E. 803(c)(27) because we discern no error in the mother's testimony elicited without objection at trial.

III.

Defendant argues that he is entitled to a new trial because the prosecutor made several prejudicial remarks during her closing argument to the jury.

"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). "[P]rosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations[,]" State v. DiFrisco, 137 N.J. 434, 474 (1994), but a prosecutor's arguments are not unfettered, State v. Williams, 113 N.J. 393, 447 (1988). The prosecutor is granted wide latitude to make "fair comment" on the evidence so long as he or she stays within legitimate inferences that can be deduced from the evidence. See State v. R.B., 183 N.J. 308, 330 (2005); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).

During the prosecutor's summation at trial, defense counsel did not object to the remarks now challenged on appeal. Later, he unsuccessfully moved for mistrial as to only one of the challenged remarks. Therefore, with the exception of the ground upon which mistrial was sought, the plain error standard of review applies. R. 2:10-2; State v. Papasavvas, 163 N.J. 565, 626, corrected by 164 N.J. 553 (2000). The alleged summation error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Feal, 194 N.J. 293, 312 (2008).

A.

First, defendant asserts that the following summation remarks by the prosecutor constitute plain error:

Did he say to the police officers -- it was a perfect opportunity, as counsel says, perfect opportunity to say these things. Did he say to them, I have this problem, I've had this problem for a long time, I've done all kinds of things in my sleep, I've woken up in different places? No. He simply says I woke up, my hands were there and I moved them. And they give him the opportunity. They say at the end, is there anything else you want to tell us about, anything else that we didn't ask you. He doesn't elaborate at all.

And now at the time of trial, it's a sleep disorder. He wasn't awake. He didn't know what he was doing. He did it in his sleep. And the witnesses have come and talked to you about some things they've seen over the years and how the pediatrician said he would outgrow it, he would get better, which was in effect, disputed on rebuttal by the two women that you heard from this morning.

So I submit to you, ladies and gentlemen, you're able to assess this disorder by what has been provided in this case. You can assess them against the burden.

Defendant contends that the prosecutor's reference to omission of his alleged sleep disorder in statements defendant made to the police was an improper and prejudicial comment infringing upon his right to remain silent. He cites State v. Muhammad, 182 N.J. 551 (2005), and State v. Deatore, 70 N.J. 100 (1976), in support of his argument that the prosecution may not ask the jury to infer that omissions from a defendant's statements to the police constitute evidence of his guilt. The State responds that defendant did not invoke his right to remain silent during the police questioning, and the prosecutor made a proper argument based upon the omissions in defendant's statements.

In Deatore, supra, 70 N.J. at 103-04, the defendant had been arrested by the police on a charge of armed robbery. He testified at trial that he had been elsewhere in the company of a woman in a motel room at the time of the robbery. In cross-examination, the prosecutor established that the defendant had not given that alibi account to the police at the time of his arrest. Id. at 107. On appeal, the Supreme Court reversed defendant's conviction, holding that the prosecution could not impeach the defendant with his silence while in police custody. Id. at 108-09.

In Muhammad, supra, 182 N.J. at 558-59, the defendant was charged with kidnapping and sexual assault crimes based on his encounter with a woman in his car. Immediately after the incident, defendant had accompanied the woman into Paterson police headquarters, where he told the desk sergeant that he was a police officer from neighboring Passaic and that the woman had been harassing him and his family members. Id. at 560-61. Before the desk sergeant, the woman accused the defendant of abducting and sexually assaulting her, and she produced physical evidence to support her allegations. The sergeant informed the defendant that he would be detained and an investigation would be conducted. The defendant did not make any further statements. Id. at 561.

At trial, the prosecution presented forensic evidence tending to prove that the defendant had engaged in sex with the woman. The defendant did not testify at trial, but his attorney argued to the jury that the woman was a prostitute and the sexual act had been consensual. Id. at 561-62. In response, the prosecution elicited testimony that the defendant had not told the Paterson police that he had engaged in consensual sex with the woman or that she was a prostitute. The prosecutor emphasized the absence of such statements in his closing argument to the jury. Id. at 562-64.

The Supreme Court held it was reversible error to use the defendant's silence at Paterson police headquarters as evidence of his guilt. It stated: "Making reference at trial to what a defendant did not say to the police is commenting on his silence." Id. at 565. The Court reviewed a series of State law precedents delineating restrictions on the use of a defendant's silence at or near the time of his arrest. Id. at 569-72 (discussing Deatore, supra, 70 N.J. 100; State v. Lyle, 73 N.J. 403 (1977); and State v. Brown, 118 N.J. 595 (1990)). The Court held reliance upon evidence that the defendant had failed to tell the police he had consensual sex with the woman and she was a prostitute violated the defendant's State law privilege against self-incrimination. Id. at 573-74.

More recently in State v. Tucker, 190 N.J. 183 (2007), the Court again addressed a similar issue but reached a different conclusion. In Tucker, the defendant had given several inconsistent statements to the police concerning his activities before his mother's murder, but he did not testify at his trial. Id. at 185-86. Before the jury, the prosecutor commented on certain omissions in the defendant's initial statement to the police. Id. at 188. On appeal, the defendant claimed those comments infringed upon his right to remain silent, as established in Muhammad, Deatore, and other cases. Id. at 189. The Supreme Court rejected defendant's argument, stating:

When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given. [Id. at 189.]

The Court acknowledged a variation between the facts in Tucker and cases where a defendant testified at his trial. Id. at 190. Nevertheless, the Court found "no meaningful distinction between the two situations that would justify a different result. In both instances, a defendant has waived the right to remain silent and freely spoken." Ibid.

In Tucker, the Court viewed its holding as being in accord with Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980). In that case, the United States Supreme Court held that cross-examination of a defendant regarding inconsistencies between his testimony at trial and his statements to the police "makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." Id. at 408, 100 S. Ct. at 2182, 65 L. Ed. 2d at 226. The Court rejected the notion that "[e]ach of two inconsistent descriptions of events may be said to involve 'silence' insofar as it omits facts included in the other version," describing such a view as a "formalistic understanding of 'silence.'" Id. at 409, 100 S. Ct. at 2182, 65 L. Ed. 2d at 227.

In this case, defendant did not invoke his right to remain silent when he was questioned by the police. To the contrary, he expressly waived his rights against self-incrimination and made voluntary statements. Although defendant did not testify before the jury, his defense was that his actions in sexually touching the girl were not knowing or intentional conduct but occurred during an episode of a sleep disorder. This defense was inconsistent with his prior voluntary statements to police during which he did not mention any sleep disorder but only that the incident had occurred while he had been asleep.

We recognize that some of the language our Supreme Court used in Muhammad, supra, 182 N.J. at 573, if read without qualification, would appear to prohibit the prosecutor's summation comments in this case. In Muhammad, the Court stated: "Defendant was not obliged to give the police the exculpatory story his attorney presented at trial, and the State was not permitted to use his silence to convict him." But the Court also explained that the factual circumstances in that case, as well as those in Deatore, supra, 70 N.J. 100, and in Lyle, supra, 73 N.J. 403, involved a defendant's actual silence while in police custody. Muhammad, supra, 182 N.J. at 572-73. In each of those cases, the defendants had made a statement to the police and then fallen silent upon learning that they were being charged or investigated for serious crimes. In contrast, defendant in this case was not silent. He never invoked his right against self-incrimination, either expressly or by his actions, and he always knew the nature of the accusations and the police suspicions of his criminal conduct. He spoke freely to the police in an effort to explain why he had his hands on the girl's body.

In these circumstances, we hold that the reasoning and holding of Tucker control the prosecutor's references to omissions in defendant's statement to the police. Because defendant never invoked his right to remain silent, his rights against self-incrimination were not violated when the prosecutor argued to the jury that defendant had not mentioned his sleep disorder to the police.

B.

Next, defendant argues there was prejudicial error in the prosecutor's summation comments regarding his failure to obtain treatment for his alleged sleep disorder after the incident with the girl. The prosecutor made the following remarks:

And now at the time of trial, it's a sleep disorder. He wasn't awake. He didn't know what he was doing. He did it in his sleep. And the witnesses have come and talked to you about some things they've seen over the years and how the pediatrician said he would outgrow it, he would get better, which was, in effect, disputed on rebuttal by the two women that you heard from this morning.

So I submit to you, ladies and gentlemen, you're able to assess this disorder by what has been provided in this case. You can assess them against the burden. You can assess that with a person who has this disorder but never got it checked, never went to a doctor that we're aware of, didn't go to a sleep clinic, a sleep disorder center that's right in the very town where his mother lives. And even after he wakes up and finds himself supposedly with his hand down a ten-year old girl's pants, even then he doesn't go and do anything about it, this disorder that he's had for many years. And think about that. Use your common sense and your rationality about does that make sense. He did nothing before or after.

Defense counsel objected to the statement that defendant did nothing after the incident to treat a sleep disorder. He explained to the judge that defendant was incarcerated from the day following the incident and thus could not obtain any treatment. The judge agreed that the prosecutor's comment was misleading and requested that defense counsel draft an instruction to the jury during the lunch recess to cure any prejudice from the remark. After the recess, defense counsel reported that he could not think of any language that would cure the problem without referencing defendant's incarceration. Instead, he moved for a mistrial. The judge denied defendant's motion, explaining that: the thrust of the prosecutor's comment went to if this was such a condition why hadn't it been treated prior to his arrest. And there may well have been some at least inference that he, despite this incident, still didn't get treatment, but I think that that's minor in the grand scheme of things considering the totality of the evidence.

And it certainly in my view would not warrant a mistrial, but your concerns are noted.

A trial court's denial of a motion for a mistrial is reviewed under the abuse of discretion standard. State v. Winter, 96 N.J. 640, 647 (1984). A mistrial may be required only if the prejudice cannot be cured by instruction to the jury or another remedy. Ibid.

Here, although the prosecutor's statement that defendant failed to treat his alleged sleep disorder after the time of his arrest should not have been made, it could have been cured by an instruction to the jury or a stipulation to the effect that treatment was not available. There was no reason to specify the reason for unavailability. When viewed in context of the entire summation and the other admissible evidence presented, the isolated comment was a fleeting, minor point; it was harmless error in the trial.

C.

Defendant asserts that the prosecutor improperly commented that defendant was "taking advantage" of the victim and her family, and that these comments were unfairly critical of defendant's "constitutional right to trial" and to "challeng[e] the State's proofs." We quote the entire relevant passage that included references to "taking advantage":

In my opening, I told you that this was about taking advantage of a child and her family and her mother, taking advantage of the friendship and the love and the innocence of that child, and of the relationship she and her mother had with this defendant. I told you it was about taking advantage of all of those things, and violating all of those things, violating this little girl in the u[t]most way by sexually abusing her, by touching her, touching her breasts, touching her vaginal area, putting his finger inside of her, the u[t]most violation of her body, both emotionally and physically. And I told you that how did he repay this family for taking him in and for their friendship, and providing him with food and shelter. Well, this is how he repaid them, by violating all of those things.

And now you've heard all of these witnesses. You've seen and heard how he took advantage. And now I submit to you that you've heard these witnesses and that taking advantage is still continuing because now it's being taken advantage of common sense, rational thinking, believability and creditability.

Because now taking advantage of I have a sleep disorder. I have something wrong with me. I didn't know what I was doing. That word disorder has been tossed around quite a bit in counsel's opening, and now again in closing. Sleep disorder.

It's not in dispute that something happened to this child, something sexual. Counsel, basically, has said that. So it's just did he know what he was doing. Ladies and gentlemen, of course he did, and he just had to explain it away, blame it on something else. The blame game. It's something that happened to me that I didn't know. Don't let him continue to take advantage. Go to that deliberating room and return the only verdict that the evidence supports, that he can no longer take advantage, that after two and a half years it has to stop, and he knew what he was doing, and he's guilty of these charges.

In context, the prosecutor's remarks made reference to defendant taking advantage of an alleged sleep disorder to defray responsibility for his actions. There was no reference to defendant taking advantage by his decision to stand trial. Defendant's gloss upon the quoted comments is taken out of context and not supported by the record.

IV.

Defendant argues plain error in the trial court's failure to give a diminished capacity charge in its jury instructions. He contends that evidence of his sleep disorder supported a finding by the jury that he did not know he was touching the girl, and therefore, the jury should have been instructed that it could consider defendant's diminished mental state in determining whether the prosecution had proven beyond a reasonable doubt the requisite state of mind required for conviction. Defendant did not request a diminished capacity charge or otherwise make a relevant objection. Therefore, this argument on appeal is subject to the plain error standard of review.

The Supreme Court recently addressed a similar issue regarding failure to give a diminished capacity charge in State v. Rivera, 205 N.J. 472 (2011). In Rivera, the defendant had presented expert testimony addressing his insanity defense but only "scattered observations" of the expert touched on concepts of diminished capacity. Id. at ___ (slip op. at 26). Citing State v. Choice, 98 N.J. 295, 299 (1985), the Court held: "a trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." Rivera, supra, 205 N.J. at ___ (slip op. at 24). The Court found no error in the omission of a charge on diminished capacity from the jury instructions. Id. at ___ (slip op. at 28).

The defense of diminished capacity is addressed by N.J.S.A. 2C:4-2 as follows:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

To be entitled to a diminished capacity instruction under that section, the defendant must have been "diagnosed as suffering from some type of underlying mental disease or disorder." State v. Reyes, 140 N.J. 344, 364-65 (1995). Without such a diagnosis from a qualified witness or through admissible evidence, the defendant is not entitled to a diminished capacity instruction. See id. at 365.

Here, defendant did not present any expert testimony about his alleged sleep disorder or otherwise. He also did not present any other evidence showing that he had been diagnosed with any mental disease or defect. He presented only his mother and a friend to describe his sleeping habits. Defendant's mother testified that as a child defendant was a "restless sleeper," that he would urinate in his sleep, and that he would occasionally sleepwalk. The friend testified that defendant was a "violent, restless" sleeper who would "scream out or laugh" in his sleep. She also said that he would occasionally sleepwalk and that she "found him asleep in various places with things knocked over." The prosecution then presented the testimony of the victim's mother and a former girlfriend of defendant to refute evidence of unusual sleep habits.

The fact testimony presented was insufficient to establish that defendant suffered from any mental disease or defect necessitating a diminished capacity instruction. The trial court instructed the jury as follows regarding the sleep evidence:

I have defined for you the mental states of purposely and knowingly when discussing the three charges or counts. As to those mental states, if you find that the defendant was not aware of his actions with respect to [the girl] because they were done in his sleep, then the State has failed to prove that the defendant acted with purpose or knowledge as the case may be and you must find him not guilty.

This instruction sufficed to alert the jury that it was required to find that defendant's conduct did not occur while he was sleeping and unaware of his actions. Defendant was not entitled to a diminished capacity instruction.

V.

In his pro se brief, defendant argues that the trial court erred in providing to the jury during its deliberations the videotaped statement of the girl and equipment to view the tape without court supervision. In support of this argument, defendant cites State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994), where we held that juries should not have unrestricted access to a child sexual abuse witness's videotaped trial testimony during deliberations. Id. at 643-44.

Since the time of defendant's trial in April 2008, our Supreme Court has addressed application of Michaels to a taped pretrial interview of a child sexual abuse victim. In State v. Burr, 195 N.J. 119, 133-34 (2008), the Court held that the restrictive procedure we required in Michaels for allowing a jury to see again a child witness's testimony will also apply to a pretrial interview of a child sex abuse witness "in the future." Ibid.

We need not decide whether the directive of Burr applies retroactively to a case such as this that was tried before the opinion in Burr was issued. We conclude there was no prejudicial error in allowing the jury to review the girl's taped testimony. The trial court would have acted properly within its discretionary authority had it followed the procedure required by Burr and Michaels and replayed the tape for the jury in open court. In this case, the taped statement contained visual demonstration on an anatomically correct doll of the girl's allegations of the touching of her body parts. Her trial testimony, or a readback of her taped statement, would not have adequately depicted that demonstration.

In addition, the circumstances in this case indicate that defendant was not prejudiced by deviation from the later-mandated procedure. During its deliberations, the jury asked for a transcript of the girl's trial testimony. Because a transcript was not available at that time, the court brought the jury into the courtroom and replayed the videotaped recording of the girl's trial testimony in its entirety.*fn2 After viewing the trial testimony again, the jury returned with its verdict, acquitting defendant of the most serious charge of first-degree aggravated sexual assault that would have required proof of penetration. In her trial testimony, the girl had said nothing about alleged penetration in defendant's acts, but in her videotaped police interview, she had said that his finger went "in" her private area. Thus, it appears that the jury placed greater weight on the girl's trial testimony than her police interview.

We conclude that the potential use of the taped statement in the jury deliberation room did not constitute plain error entitling defendant to a new trial.

VI.

Last, defendant appeals as excessive the ten-year sentence of imprisonment.

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365. The test to be applied is "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Defendant argues the trial judge erroneously found aggravating factors three (likelihood of offending again), six (extent of criminal record), and nine (need for deterrence), N.J.S.A. 2C:44-1a(3), (6), and (9), based only on his criminal record. At the time of sentencing, defendant was thirty-seven years old and had a record of twenty-seven prior adult arrests or charges preceded by seven juvenile charges. Seven of the adult charges had resulted in indictable convictions, and five of the juvenile charges had resulted in adjudications of delinquency. The court found that defendant was eligible for a discretionary extended term sentence under N.J.S.A. 2C:44-3a but sentenced him instead at the top of the second-degree range of conviction.

Defendant also argues the judge erroneously failed to find mitigating factors eight (circumstances unlikely to recur), eleven (excessive hardship upon defendant and his dependents), and twelve (cooperation with the police), N.J.S.A. 2C:44-1b(8), (11), and (12). Defendant was separated from his family, and there was evidence of substantial child support arrears. His cooperation with the police involved denials of knowing and purposeful conduct, which the jury rejected.

We find ample support in the record for the court's finding of aggravating factors and rejection of the mitigating factors claimed. The sentence imposed was within the court's sentencing discretion. See State v. Bieniek, 200 N.J. 601, 608-09 (2010).

VII.

We reject all other arguments raised by counsel and defendant's pro se brief as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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