July 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HEATH A. DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0233.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Ashrafi and Nugent.
On February 7, 2007, a Mercer County grand jury charged defendant Heath Davis with two counts of second degree sexual assault, N.J.S.A. 2C:14-2b (counts one and two); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(count three). On May 14, 2008, a jury acquitted defendant of sexual assault (count one), and convicted him of sexual assault (count two) and endangering the welfare of a child (count three). On October 20, 2008, after merging count three into count two, the trial court sentenced defendant to a six-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed mandatory fines and penalties. The court also ordered defendant to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19, including parole supervision for life, N.J.S.A. 2C:43-6.4.
On appeal, defendant argues:
THE TRIAL COURT'S REFERENCE TO DEFENDANT BY MULTIPLE NAMES IN THE PRESENCE OF A JURY ALLOWED THEM TO DRAW A NEGATIVE INFERENCE DEFENDANT USES AN ALIAS AND IT THEREFORE DENIED HIM A FAIR TRIAL. (Not Raised Below)
THE ADMISSION OF PREJUDICIAL HEARSAY IMPERMISSIBLY BOLSTERED THE VICTIM'S CREDIBILITY AND ULTIMATELY DENIED DEFENDANT A RIGHT TO A FAIR TRAIL. (Not Raised Below)
THE VICTIM'S OUT OF COURT HEARSAY STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE AS A FRESH COMPLAINT HEARSAY EXCEPTION.
DEFENDANT'S SENTENCE IS EXCESSIVE AND IS AGAINST THE WEIGHT OF THE APPLICABLE MITIGATING FACTORS, THEREFORE HIS SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING. (Not Raised Below)
The trial testimony established the following facts. On July 23, 2006, while attending a church service in Trenton, seven-year-old Steven*fn1 left his mother and other relatives to go to the bathroom in the church basement. Defendant followed Steven into the bathroom, called him by name, asked if he wanted to do anything, and pushed him onto the floor. Defendant pulled his own pants down, forced himself on top of Steven whose pants were unbuckled from using the bathroom, started moving his penis up and down between Steven's legs, and squeezed Steven's penis with his hand. Defendant turned Steven over, put his penis between the cheeks of Steven's buttocks, and repeatedly slapped Steven's buttocks.
Meanwhile, Steven's mother, Ann, began searching for Steven by calling his name and walking to the church basement. Defendant hid in a bathroom stall. Ann entered the bathroom and observed Steven pull up his pants and underwear as he rose from the floor. Steven told his mother that defendant was in the bathroom, but did not tell her what happened. When they returned home, Steven told his mother that defendant "hump[ed]" him in the church bathroom. Later that day, Ann consulted with her pastor, and the next day she took Steven to his pediatrician and then reported the incident to the police. She and Steven went to the police station where Detective Luke Sherill took a written statement from Ann and interviewed Steven outside of the presence of his mother.
Defendant testified on his own behalf at trial, maintaining his innocence. He testified that he entered the bathroom before Steven entered and nothing occurred while Steven was in the bathroom. Defendant claimed that Steven and Ann testified falsely.
Defendant first contends that he was denied a fair trial when the trial court referred to him by his alias. He argues that the trial court created an impermissible inference that he was involved in crime and using multiple last names to evade detection or apprehension. He maintains the reference to his alias possessed a clear capacity to produce an unjust result, and amounted to plain error. We disagree.
After jury selection, as the court was introducing the parties and their attorneys, the following occurred:
THE COURT: And, Mr. Davis, how do you wish to be addressed, as Mr. Johnson or Mr.
THE DEFENDANT: Mr. Davis.
THE COURT: And seated next to [defense counsel] is Heath Davis. Mr. Davis is the defendant in this matter. Mr. Davis, if you'll stand, sir, so everyone can see you.
Mr. Davis resides in the City of Trenton.
Thank you, sir.
The court mentioned defendant's alias again when it read the indictment to the jury:
THE COURT: The indictment is entitled State of New Jersey versus Heath A. Davis. And Count one reads as follows: The grand jurors of the State of New Jersey for the County of Mercer upon their oaths present that, Heath A. Johnson, also known as Heath
A. Davis, did on or about the 23rd day of July, 2006 did commit the crime of sexual assault upon [Steven].
We have explained that "[t]he principal objection to the use of an alias in a criminal proceeding is that an alias impli[es] that the defendant belongs to the criminal class and thereby prejudices the jury." State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004) (quoting State v. Salaam, 225 N.J.Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988)), certif. denied, 185 N.J. 266 (2005). "However, the majority of decisions involving this issue hold that the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Salaam, supra, 225 N.J. Super. at 73.
Here, defendant did not object to the references to his alias. The alias was neutral and carried no inherently pejorative connotation, nor did it suggest any criminal association. See State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.) (holding that there is a concern when a defendant has a pejorative nickname), certif. denied, 153 N.J. 216 (1998). The use of defendant's alias was not repeated in testimony or the summations, and did not go to the merits of the defense. See State v. Blanks, 190 N.J. Super. 269, 280 (App. Div. 1983). Additionally, in its final charge, the court did not mention the alias and specifically instructed the jury that "an indictment is not evidence of a defendant's guilt."
Where references to a defendant's alias are "made sparingly," and do not "suggest an element of criminal association or bad character[,]" the references "neither compromise defendant's right to have the jury evaluate themerits of his defense nor prejudice his right to a fair trial." Salaam, supra, 225 N.J. Super. at 76. Defendant's argument that the two references to his alias were clearly capable of producing an unjust result is speculative. Defendant has not demonstrated any tangible form of prejudice. The references to defendant's alias were harmless error.
Defendant next contends that the admission into evidence of hearsay statements denied him a fair trial. He asserts as reversible error Detective Sherill's recitation of what Ann told him, arguing that the hearsay improperly bolstered the victim's testimony, and denied defendant his Sixth Amendment right to confront witnesses against him. Sherill testified:
Q. You say you contacted Detective Hastings. Why did you contact Detective Hastings?
A. I spoke to [Ann] prior to that and she told me that she was in church on Sunday ... and she went down in the bathroom to get her son, and her son was pulling his pants up in the bathroom, and she asked him what was going on in the bathroom, and he didn't say anything, and she looked over into one of the stalls and saw someone standing in the stall. And she took him out of the bathroom and asked him what happened, and he said that Heath had pushed him down on the floor, pulled his pants down and pushed him down [on] the floor.
Sherill's testimony about what Ann told him was hearsay. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is not admissible at trial "except as provided by these rules or by other law." N.J.R.E. 802. Even if Sherill's testimony was elicited not for the truth of its content, but to explain his conduct in contacting another detective, the testimony was hearsay. Although an officer can explain his conduct by testifying that he acted "upon information received," if "the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." State v. Bankston, 63 N.J. 263, 268 (1973).
Defendant did not object to Sherill's testimony. Consequently, defendant must demonstrate plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 335-37 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004). Additionally, "'[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for a reversal on appeal....'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)).
Significantly, defense counsel asked Sherill during cross-examination, "[w]hat did the mom tell you happened?" When the prosecutor objected, defense counsel rephrased the question and asked, "[w]hat did you find out from the mom?" The prosecutor again objected, but the court permitted the question. Sherill then repeated what Ann said she observed and what Steven told her about the incident. Defense counsel subsequently questioned Sherill about details of the mother's statement, and later cross-examined Ann and Steven about the same statements and events. The State objected to the cross-examination of Ann about Steven's account of the incident, but the court overruled the objection because the questioning could "produce an inconsistency in the testimony."
Defendant not only acquiesced in that part of Sherill's direct testimony that he now complains about, but also persisted in pursuing the inquiry on cross-examination in the face of the State's objections, and subsequently cross-examined Ann and Steven on the same issues. The trial court permitted the cross-examination of Sherill and Ann over the State's objections, because of the apparent defense strategy to create inconsistencies in the testimony of the State's witnesses.
Defendant relies on State v. Bowens, 219 N.J. Super. 290 (App. Div. 1987), to support his argument that Sherill's testimony constituted plain error. Bowens is distinguishable. There, the testifying police officer implied that a sexual assault victim's grandmother had implicated the victim's father, the defendant. Id. at 299. The grandmother never testified and was never cross-examined. Id. at 301. Here, unlike the absent grandmother in Bowens, Ann and Steven appeared at trial, testified, and were cross-examined. More importantly, defense counsel cross-examined each State's witness about the details of what Steven told Ann about the assault, apparently as part of a trial strategy to develop inconsistencies in the testimony of the State's witnesses. We find no plain error in Sherill's testimony.
We reach the same conclusion concerning defendant's argument that Steven's testimony about what he told his mother constituted reversible error. Steven testified:
Q. Okay. And when you went to your house, did you talk to mommy?
A. Yes. She told me to come in her room and then she asked me one more time what happened, and I told her that he was humping me.
Q. Okay. You told her "he" was humping you, who is "he"?
Q. Did you explain to her how he was humping you?
Q. You just said he was humping you?
Q. Okay. Do you remember what else you told mommy?
Q. After you told mommy that Heath was humping you, what happened next?
A. She said-she said that I'm glad you got that off your chest, and then that's when she took my cousin to my Grandma's house, cause my grandma was cooking Sunday dinner.
Q. How did you feel when you told mommy about what happened in the bathroom?
A. I didn't tell her in the bathroom.
Q. No, when you -I'm sorry. How did you feel at your house when you told mommy what happened in the bathroom?
Q. How come?
A. Because that's something I could get off my chest.
Defendant argues that the hearsay statements were improperly admitted as "fresh complaint" evidence under N.J.R.E. 803(c)(27), because the requisite elements for admission were not established. We first note "[t]he 'fresh complaint' exception is based on common law and has never been codified in the Rules of Evidence although it is related to the exception enacted as N.J.R.E. 803(c)(2)." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2011). Thus, the "fresh complaint" exception is different from the "tender years" exception found in N.J.R.E. 803(c)(27).
Steven's testimony about what he told his mother was not offered by the State as either fresh complaint or tender years evidence. Nevertheless, defendant did not object to the testimony, cross-examined Steven about what he told his mother, and cross-examined Ann about what Steven told her. Steven knew defendant, identified him as the assailant, and provided details of the attack based on his first-hand knowledge. Under those circumstances, the admission of Steven's testimony about what he told Ann was not plain error requiring reversal.
Defendant also claims it was improper "for [Ann] to testify concerning [Steven's] identification of [defendant] as his sexual assailant because the State failed to satisfy the prerequisites for the admissibility of fresh complaint testimony." Defendant does not cite to the record, and his reference to Ann's testimony is unclear. Ann testified that when she entered the bathroom and saw her son, she asked him who was in the bathroom with him, and he replied, "Heath." Ann did not testify during direct examination as to what Steven told her about the details of the assault. Ann's statement that Steven told her defendant was in the bathroom was inconsequential and cumulative. Steven had already testified to that fact, and defendant admitted that he was in the bathroom with Steven. Consequently, if there was error in admitting Ann's testimony, it was certainly not plain error.
Finally, defendant argues that his sentence was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). "[A]n appellate court should not substitute its judgment for that of the lower court, and ... a sentence imposed by a trial court is not to be upset on appeal unless itrepresents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989).
In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations and citations).
The court imposed a sentence of six years imprisonment with eighty-five percent parole ineligibility under NERA. Defendant argues that he should have been sentenced to a term of five years subject to the NERA, because the trial court found one aggravating factor and two mitigating factors, and the mitigating factors quantitatively outweighed the aggravating factors.
Defendant's argument is flawed. The court found two aggravating factors: defendant's knowledge that the victim was particularly vulnerable due to his extreme youth, N.J.S.A. 2C:44-1a(2), and the need for deterrence, N.J.S.A. 2C:44-1a(9). The court found two mitigating factors: defendant had no prior criminal history, N.J.S.A. 2C:44-1b(7), and defendant is particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(10). The court weighed the aggravating and mitigating factors, and imposed a six-year sentence for a second degree crime with a sentencing range of five to ten years imprisonment. See N.J.S.A. 2C:43-6a(2).
There is ample evidence in the trial and sentencing record to support the court's findings of aggravating and mitigating factors. The judge imposed a sentence that was well within the sentencing range for the crime defendant committed. Considering the nature of the crime and the victim's age, the sentence "does not shock the judicial conscience." See State v. Denmon, 347 N.J. Super. 457, 468 (App. Div.), certif. denied, 174 N.J. 141 (2002).