August 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-01193.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011
Before Judges Graves and Messano.
Following a jury trial, defendant C.B. was convicted of the following offenses: seven counts of first-degree aggravated sexual assault of a victim less than thirteen years of age, N.J.S.A. 2C:14-2(a)(1) (counts one, two, three, nine, ten, eleven, and twelve); three counts of first-degree aggravated sexual assault of a victim at least thirteen but less than sixteen years old, N.J.S.A. 2C:14-2(a)(2)(c) (counts thirteen, fourteen, and fifteen); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count four); and three counts of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (counts five, six, and sixteen). On September 19, 2008, the court sentenced defendant to an aggregate term of 125 years in prison subject to 106 years and three months of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant presents the following arguments:
THE TRIAL PROSECUTOR IMPROPERLY BOLSTERED THE CO-DEFENDANT'S TESTIMONY THAT [C.B.] HAD COMMITTED THE OFFENSES CHARGED IN THE INDICTMENT BY CALLING ANOTHER PROSECUTOR TO VOUCH FOR HER CREDIBILITY, AND BOLSTERED THE COMPLAINANT'S TESTIMONY BY CALLING AN INVESTIGATOR IN THE PROSECUTOR'S CHILD-ABUSE UNIT. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE COURT VIOLATED THE PRINCIPLES OF STATE v. YARBOUGH IN SENTENCING THE DEFENDANT TO SEVERAL CONSECUTIVE TERMS AT THE MAXIMUM END OF THE SENTENCING RANGE, AND ERRED IN FAILING TO WEIGH SEPARATE AGGRAVATING FACTORS FOR EACH OFFENSE.
THE AGGRAVATING AND MITIGATING FACTORS CONSECUTIVE SENTENCES ENDANGERING IS NOT A NERA OFFENSE
After considering these arguments in light of the record and applicable legal standards, we conclude that defendant received a fair trial. Accordingly, we affirm the convictions, but remand for resentencing.
Tammy,*fn1 the victim of the sexual assaults, was nineteen years old when she testified at defendant's trial. Tammy testified she was living with her mother, Jennifer, and her brother, Tom, in Wrightstown in 1995 when her mother began dating defendant. About two years later, defendant moved in with them. Tammy testified her mother was employed on a full-time basis and defendant was "in charge" of her and her brother while her mother was at work.
Tammy described how defendant began touching her in "a sexual way" between her legs and "on [her] butt." She also described, in graphic detail, how she was sexually abused for the first time when she "was about seven or eight years old" and how the abuse continued for several years until she eventually told her grandmother about it while attending a wedding on July 29, 2005.
When asked why she did not tell her mother about the abuse and how frequently it occurred, Tammy testified as follows:
He told me not to tell her. But, another thing is I thought she might have already known because he had already said to her "I'm going to teach her about sex" and all these things. But, I don't think she really knew the extent of it.
Q. Did you have a conversation with your mom about what the defendant was doing to you?
A. . . . I figured she already knew so I never really sat down and had a full-fledged conversation with her.
Q. Okay. How many times would he make you have sex with him?
A. I couldn't even tell you how many times that was. I really couldn't. I have no idea how many times that was. I would put it easily in the hundred category. Easily.
Q. . . . [W]hat about oral sex? How often would he make you do that?
A. Well, at first it was more than anything, so it was basically every time he was alone with me. But, I can't honestly say it was every single time, but it was very often when I was alone with him.
According to Tammy, she was fifteen years old the last time defendant forced her to have sex with him. In addition, Tammy and her brother both testified that defendant physically abused them.
Jennifer, the children's mother, was also a witness for the State. Jennifer testified that she pled guilty to second-degree sexual assault as defendant's accomplice and, at the time of trial, she was serving a seven-year sentence at the New Jersey State Prison. Jennifer stated that she pled guilty because she "did not call the cops" when she knew defendant was sexually assaulting her daughter. She explained that she did not tell anyone about the abuse because defendant "beat [her] on a regular basis," and she was afraid of him.
On cross-examination, Jennifer acknowledged that she "decided to enter into a plea bargain" because she was "facing very serious charges." She also testified that the plea agreement required her to testify against defendant and that "a lot of charges were withdrawn" as a result of her plea.
Christine Shaw, the assistant prosecutor who handled Jennifer's case, testified as follows regarding the terms of the plea agreement:
Q. Were there any other terms of the plea agreement?
A. Part of the plea agreement was that she would provide a truthful factual basis.
Q. Was that done?
A. Yes. . . . .
Q. Ms. Shaw . . . [y]ou had a chance to review the file prior to pleading [Jennifer]?
A. Oh, yes.
Q. Okay. And part of that file contained certain statement that she made?
A. It did.
Q. Okay. And that was to law enforcement?
Q. Actually, to two separate agencies?
A. Yes, I think to the Prosecutor's Office as well as the Pennsauken Police Department.
Q. Okay. And her truthful factual [basis] at the time of her plea, was that consistent with what was in the Discovery?
A. Yes. That's why I was satisfied with it.
During cross-examination, Shaw confirmed her belief that Jennifer provided truthful testimony when she entered her guilty plea:
Q. Okay. Well, really we don't know what the truth is. It's just that that is what the requirement was?
A. The requirement was for truthful testimony, I believe is what the plea papers [said].
Q. Right. But you don't know any facts about actually what happened in the underlying case, do you?
A. Well, based on my review of the file and my handling of it, I was satisfied that she was truthful based on everything in total. So, I believed it to be truthful.
Q. I understand you believed it to be truthful, but you don't know that for a fact?
A. Well, to me that would be knowing it.
Q. You don't know it from any person[al] knowledge [or] observations?
A. No, I certainly wasn't there.
The State's remaining witnesses were Dr. Julie Lippman, a psychologist, who testified as an expert in the field of child sexual abuse, and investigator Amy Pisano of the Camden County Prosecutor's Office. Pisano interviewed Tammy on September 29, 2005, when she was seventeen years old. Pisano observed that Tammy was "able to give great detail as to the type of abuse that she suffered" and "was able to articulate answers that made sense."
Defendant did not testify or present any evidence. In her opening statement, defense counsel told the jury that the case was "about fabrication," and in her summation she stressed various inconsistencies in the State's proofs and the absence of any physical or medical evidence to corroborate "anything that [Tammy] said." Defendant's attorney also argued that Jennifer was not a credible witness:
Plea agreements allow defendants to reduce their exposure. And I asked her that. [Jennifer] agreed to take a plea and come in here and testify against [defendant] to reduce her exposure.
How reliable and how credible is her testimony? She has self-interests in this case. [For] whatever reason she doesn't want DYFS involved in her family, she's trying to reduce her exposure. That is why she comes in here. She's not just walking in here trying to help. She, according to her testimony, never tried anything to help.
Is [Jennifer] a credible witness? Absolutely not. She's inconsistent. She has an interest in this case. And of course, she's looking for a benefit from the State.
In the State's summation, the prosecutor made the following statements regarding Jennifer's credibility:
Every time [Jennifer] tried to intervene he beat her. She told you, she gave you a laundry list of the injuries that had happened: busted lip, knife to the throat, punches. Every time she intervened she got beat. She stopped intervening.
She loved that guy. She let the abuse continue. She placed the needs of the defendant above the needs of her own kids. There is no justification, no excuse. She came in her and she testified to those facts.
Next you heard from Christine Shaw. She was the assistant prosecutor who pled [Jennifer's] case. Okay. She explained basically that [Jennifer] was supposed to give a truthful factual [basis]. She did that at the time of her plea. She was supposed to provide truthful testimony at the trial of the co-defendant, the defendant here, if necessary. She, in fact, did that.
She has been sentenced now for over a year. Christine Shaw testified that there was no indication at all that [Jennifer] would not be cooperative with her and she was sentenced.
Defense counsel stated in her opening that this case is about fabrication. It's all lies. Who is lying and why?
While instructing the jury, the court stated that defendant had a constitutional right to remain silent and the jury was told not to consider "for any purpose or in any matter" the fact that he did not testify. The jury was also instructed that defendant was "presumed innocent even if he chooses not to testify." The court concluded its instructions at 12:33 p.m. on July 2, 2008, and the jury returned with its verdict approximately three hours later.
In his first point, defendant claims he is entitled to a new trial because assistant prosecutor Shaw improperly bolstered Jennifer's testimony by stating that Jennifer provided truthful testimony when she entered her plea. Defendant also claims that investigator Pisano improperly bolstered Tammy's credibility, and that the "prosecutor's misconduct constituted plain and reversible error." In response, the State contends that Shaw's testimony was proper rehabilitation of Jennifer's testimony on cross-examination regarding her plea bargain; Pisano's observations did not suggest or imply that Tammy was telling the truth when she testified; and "the testimony of both witnesses did not have the capacity to lead to an unjust result."
We find no error regarding Pisano's observations of Tammy, which neither suggested nor implied that she was a credible witness. However, in our view, it was improper for Shaw to express her belief that Jennifer was truthful when she entered her plea because her testimony was consistent with other documents that were not part of the record. See State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) ("A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility."), certif. denied, 182 N.J. 148 (2004). Nevertheless, we conclude that the error was not "clearly capable of producing an unjust result," Rule 2:10-2, because the outcome of the trial depended primarily upon the jury's assessment of Tammy's credibility, and it undoubtedly determined that she was a credible witness.
In his next point, defendant argues that the jury instructions regarding his right to remain silent "created the impression that he had an obligation to testify." Defendant did not object to the trial court's instructions, but he now argues that the use of the phrase "even if" was so flawed that it constituted plain error. We need not consider this issue, however, because the Supreme Court has specifically rejected the same argument. State v. Miller, 205 N.J. 109, 126-27 (2011).
Defendant also argues that the trial court violated the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985), when it imposed "eight consecutive sentences, seven of them at the maximum end of the sentencing range, for an aggregate sentence of 125 years with an 85% parole disqualifier." Defendant also contends that the court erred in weighing various aggravating factors; in failing to find as a mitigating factor that defendant had no previous indictable convictions; and that the three counts of endangering the welfare of a child were not NERA offenses.
In reply, the State contends that the trial court's findings regarding the aggravating factors and the lack of any mitigating factors were fully supported by the record, and the imposition of consecutive sentences was proper. The State acknowledges, however, that non-NERA sentences should have been imposed on two of the convictions for endangering the welfare of a child because the jury did not specifically find that the offenses were violent crimes and the current version of NERA, N.J.S.A. 2C:43-7.2(d) (effective June 29, 2001), does not include endangering the welfare of a child as one of the enumerated crimes to which NERA applies.
Defendant was forty-seven years old when he was sentenced on September 19, 2008. The court identified four aggravating factors: (1) the nature and circumstances of the offenses, N.J.S.A. 2C:44-1(a)(1); (2) the seriousness of harm to the victim and the victim's vulnerability due to her age, N.J.S.A. 2C:44-1(a)(2); (3) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and (4) the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court did not find any mitigating factors, and it specifically rejected mitigating factor number seven, N.J.S.A. 2C:44-1(b)(7), even though these were defendant's first indictable convictions because there were "multiple sexual offenses over many, many years."
The record supports the trial court's finding that there were no mitigating factors. However, as defendant points out, the court's analysis of the applicable aggravating factors was flawed because the court failed "to separately consider the aggravating factors for each separate offense." For example, the court found that aggravating factor two applied to count two (first-degree aggravated sexual assault) because the offense occurred when Tammy was only eight years old. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (noting that the "extreme youth" of a four-year-old victim was a proper aggravating factor). However, the holding of Taylor does not apply across the board to each of the other counts because the victim was not extremely young in comparison to the required elements of each offense.
Defendant's sentence is also problematic because the court imposed several consecutive sentences at the maximum of the sentencing range. See State v. Yarbough, supra, 100 N.J. at 644 (stating that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense"). Accordingly, the court must reconsider defendant's aggregate sentence and if consecutive terms are reimposed the court must explain whether a shorter term for successive offenses is warranted.
Finally, the State concedes that a NERA sentence was improperly imposed on at least two of the counts, and the remand court must make specific findings regarding the applicability of NERA and its real-time consequences. See State v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.) (reducing a sentence to the then-presumptive term in light of NERA's real-time consequences), certif. denied, 182 N.J. 142 (2004).
Defendant's convictions are affirmed; his sentence is vacated; and the matter is remanded to the trial court for resentencing.