On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0744.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Following a three-day jury trial in January 2008, defendant G.L.D. was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts one and two); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts three, nine, and thirteen); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a) and (c) (counts four, five, six and ten); and four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts seven, eight, eleven, and twelve). The minor victim of these sexual offenses was defendant's stepdaughter, who at the relevant times had been staying at or visiting his residence.
At sentencing, defendant received three consecutive fifteen-year prison terms, each subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts five, six, and ten. On count four, the court imposed a fifteen-year term, also subject to NERA, to run concurrent to counts five, six, and ten. On counts one, two, three, nine and thirteen, the court imposed prison sentences of seven years flat, to run concurrent to each other and to counts four, five, six, and ten. On counts seven, eight, eleven, and twelve, the court imposed sentences of four years flat, to run concurrent to counts one, two, three, four, five, six, nine, ten, and thirteen. The court also imposed the requirements under Megan's Law, including mandatory registration as a sex offender and parole supervision for life, plus applicable fines and penalties.
Defendant now appeals, principally arguing through his appellate counsel that his right against self-incrimination was violated by references at trial to his pre-arrest silence; that the prosecutor improperly alluded to his flight from the family residence after his sexual encounter with the minor victim was discovered by the child's grandmother; and that his aggregate forty-five-year sentence was excessive. Defendant also raises various other contentions of error in a pro se supplemental brief.
For the reasons that follow, we sustain defendant's conviction and his sentence.
The relevant proofs adduced at trial are as follows. In essence, defendant was caught by his mother-in-law in the act of a sexual encounter with his stepdaughter. The child corroborated the incident, as well as other prior sexual attacks by defendant, in her trial testimony. Defendant, on the other hand, denied initiating any sexual contact with the child. He contended that she had falsely accused him of sexual wrongs in an effort to manipulate him and his relationship with her mother. We discuss the facts with these competing theories of the case in mind.
In August 2000, defendant and the child's mother, B.E., were married. One month prior to the marriage, B.E. and her daughter D.P.,*fn1 who was then ten years old, moved into defendant's four-bedroom home in Browns Mills. Defendant had been living in the home with his two minor sons, both of whom moved out of the residence shortly after the marriage. After the households combined, Diana began to exhibit behavioral problems. Those problems were exacerbated after her mother gave birth to a son, fathered by defendant, in August 200l. A few months later, in January 2002, Diana moved in with her own father, R.P. The mother explained that, at the time, she thought Diana's "outbursts" were attributable to a number of experiences, i.e., a new school, new friends, a new stepdad, and a new baby.
In August 2003, Diana's maternal grandmother, J.E., moved into the marital home. A short time later, extensive termite damage was discovered in the master bedroom, causing defendant and his wife to take over the room that Diana had previously occupied. Consequently, by the summer of 2006, Diana was sleeping in the living room on the occasions when she stayed overnight with defendant, her mother, and her grandmother.
On September 9, 2006, Diana went to sleep on the couch in the living room at approximately 9:30 or 10:00 p.m. Shortly thereafter, her grandmother J.E., who had retired to her own bedroom at about 7:00 or 8:00 p.m., went to the kitchen to get a drink. J.E. then observed defendant "humping over [her] granddaughter," for "about forty-five seconds." She asked, "[w]hat the hell's going on[?]" J.E. then watched defendant pull up the front of his pajama bottoms. Believing that she had just seen defendant and Diana "having oral sex," J.E. proceeded to hit and punch defendant and call him foul names.*fn2
That night, Diana, who was then still lying on the couch, did not say anything. When she made eye contact with her grandmother, she "pulled the blanket over her head." J.E. called for B.E., who had been asleep in the bedroom. When J.E. told her what she had seen, B.E. backed up into a storage cabinet, turned sideways and slid down the cabinet, wrapped her arms around her body, and began rocking back and forth saying, "God, no, please, God, no."
At that point, defendant went to the kitchen, got his keys, and left the house. He then came right back in the house, grabbed a knife from a knife block on the kitchen counter, and went out the door again. B.E. called 9-1-1, and the police arrived within about ten minutes.
Pemberton Township Police Officers Vincent Cestare and Brian Warrick arrived at the family's home shortly before midnight. A "flash," i.e., an immediate notification, was communicated over the police radio, advising that the police were looking for defendant and that he should be detained. Shortly thereafter, the police shift supervisor, Officer Gregory Hale, also arrived at the home. Moments after Officer Hale's arrival, defendant telephoned the house, and J.E. answered the phone. Defendant asked to speak to the police, and J.E. handed the phone to Officer Hale. According to Officer Hale's trial testimony, the first thing defendant said to him on the call was, "I f[***]ed up, man, I f[***]ed up."
Officer Hale informed defendant that a "flash" had been put out for him, and that he should return to the house. When defendant arrived back at the home about eight to ten minutes later, he was taken into custody. An indictment ensued, charging defendant with the aforementioned thirteen counts of sexual offenses and other crimes.
In her testimony at trial, Diana stated that, on September 9, 2006, "[she] was woken up by [defendant] rubbing his penis on her chest." She estimated that "it was probably going on for like 45 minutes to a half hour" before her grandmother walked in.
Diana stated that she loved defendant "like a boyfriend" and that she did not tell anyone that this had happened before because she "didn't want to get him in trouble." She testified that, when she was about ten years old, defendant started to touch her and kiss her "[i]n [her] breast area and [her] vagina and on [her] lips." She stated that this happened "[e]very weekend that [she] was there." She testified that when she was around twelve or thirteen, the contact progressed to oral sex. She stated that this happened "[a]bout once every weekend."
The child further explained that when she was age fifteen, defendant's sexual contact with her progressed to vaginal intercourse, which she said happened "[e]very once in a while. It only happened like three times." She added that, in a typical weekend, she and defendant would engage in "sexual acts" every day. According to Diana, she thought defendant was going to leave her mother and instead be with her once she turned eighteen.
In his own trial testimony, defendant insisted that he had not sexually assaulted Diana on September 9, 2006, or at any other time. He contended that the child had inappropriately initiated sexual contact with him and, moreover, had fabricated allegations against him as a means of blackmail. Defendant stated that the child's efforts to blackmail or threaten him began approximately one year prior, in 2005.
Defendant described an earlier incident in 2005, in which Diana allegedly came into his bedroom, got into his bed, and fondled him. According to defendant, he yelled at her and told her he was going to tell her mother. He alleged that, in response, Diana cautioned him that "if [he] told her mother anything she was going to tell her [mother, B.E.] that [he'd] been molesting her." Defendant further contended that Diana would send him text messages "almost constantly," so much so that his wife and Diana's father had to intervene to stop them.
With respect to the critical events of the night of September 9, 2006, defendant testified that when he leaned over the couch to give her a hug, Diana "reached up and grabbed [his] crotch." Defendant contended that he responded by grabbing her left wrist with his right hand and telling her to let go. He asserted that "she was pulling at [him] and [he] was trying to get her to let go, then she pulled so hard [he] almost fell on top of her so [he] reached out to brace [him]self." Defendant denied any effort on his part to initiate sexual contact with Diana, or to gratify himself. He also maintained that he told Officer Hale that the child had been attempting to blackmail or threaten him for approximately a year.
In addition to hearing these narratives from the principals (Diana and defendant), the jury also heard testimony from J.E., B.E., the three responding police officers (Cestare, Warrick, and Hale), a detective from the Burlington County Sexual Assault Unit, and a prior co-worker of defendant's. Upon considering these proofs, the jury found defendant guilty on all counts of the indictment.
Following the verdict, defendant moved to relieve his trial counsel. That motion was granted by the trial judge after a hearing. Defendant then filed a motion to vacate the verdict, and for a new trial. The trial judge denied that motion, observing that "[t]he jury's verdict was consistent in all regards, [and] in all respects[,]" and that there was not "a manifest denial of justice in this case."
On January 9, 2009, defendant, represented by new counsel, appeared for sentencing. At that time, the court imposed the aggregate forty-five-year sentence and the associated Megan's Law conditions, as previously described.
Through his appellate counsel, defendant now raises the following points on appeal:
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT UNDER THE NEW JERSEY PRECEDENT BY REPEATEDLY COMMENTING ON HIS PRE-ARREST SILENCE. (Not Raised Below)
THE PROSECUTOR COMMITTED MISCONDUCT BY CIRCUMVENTING THE JUDGE'S REFUSAL TO CHARGE FLIGHT IN THAT SHE REPEATEDLY REFERRED TO THE DEFENDANT'S ALLEGED FLIGHT IN HER SUMMATION. (Not Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In a pro se supplemental brief, defendant presents the following additional arguments:
DEFENDANT'S POST-TRIAL PRO SE MOTION FOR A NEW TRIAL SHOULD BE ALLOWED AS FILED IN TIME DUE TO COUNSEL'S INTENTIONAL FAILURE TO TAKE ANY POST TRIAL ACTIONS. ...