September 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADRIANE PORCELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-04-1150 and 07-04-1314.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011 --
Before Judges Messano and Yannotti.
Defendant Adriane Porcell was tried before a jury and found guilty on five counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1); and four counts of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). After merging certain offenses, the trial court sentenced defendant to eighteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction entered on December 12, 2008. For the reasons that follow, we affirm.
At the trial of this matter, A.M. testified that in February 2005, defendant came to live with her mother, brothers and sister in Irvington. A.M. stated that defendant was her mother's boyfriend but he behaved like a "stepfather" to her. A.M. said that one day, when her mother was out, defendant gave her a note which stated that she was "cute." At the time, A.M. was twelve years old and defendant was thirty-one years old.
A.M. threw the note away but that night she wrote a note to defendant and said that nothing could "happen" between them because he was older and was already involved with her mother. Defendant wrote A.M. another note stating that he loved her and age did not matter. Later that evening, after her brothers and sister were asleep, defendant approached A.M. and told her that they could "be together" because he loved her. A.M. went to sleep.
Sometime thereafter, A.M.'s mother began to work the night shift. One evening, when A.M.'s mother was working, defendant called A.M. to his room. They were sitting on the bed and started kissing. Defendant told A.M. to take her clothes off. She complied. A.M. testified that defendant placed his penis into her vagina. A.M. stated that, around two weeks later, she again had sexual relations with defendant. According to A.M., defendant performed oral sex upon her. He then put his penis inside of her vagina.
A.M. further testified that one night several weeks later, while A.M.'s mother was working and her brothers and sister were asleep, defendant again called her to his room. According to A.M., defendant put his penis inside her anus. He withdrew after she said that he was hurting her. Defendant then told A.M. to turn over and lay down on her back. A.M. said that defendant then put his penis inside her vagina.
The following day, when A.M. returned from school, defendant told her that he was "scared" that she was pregnant. He gave A.M. a pregnancy test to use. Defendant said that the test results were negative. Defendant told A.M. not to tell anyone what he had done because if she did, he could go to jail "like for thirty years."
A.M. testified that sometime later, during the summer of 2005, she was with defendant in his bedroom. Her mother was working and her brothers and sister were sleeping. Defendant told A.M. to take her pajamas off. She complied. Defendant took off his clothes and they started to kiss. A.M. stated that defendant put his penis in her vagina. Defendant was wearing a condom. After defendant removed his penis, A.M. saw him throw a used condom into the garbage.
A.M. additionally testified that in the winter of 2005-2006, defendant began to have "problems" with A.M.'s mother and moved out of the house. However, sometime in 2006, defendant resumed his relationship with A.M.'s mother and he began to stay at the house twice a week. According to A.M., one night, when her mother was working and her brothers and sister were sleeping, she and defendant went to her mother's room. They kissed. Defendant put his penis in her vagina. A.M. stated that defendant was not using a condom.
A.M. further testified that in the summer of 2006, she told her cousin she had been having sex with a man but she did not reveal that the man was defendant. A.M.'s cousin told her mother, who informed A.M.'s grandmother, who told A.M.'s mother. A.M.'s mother was angry and took A.M. to the police station. A.M. did not tell the police that defendant was the person with whom she had been having sex. A.M. was taken to the hospital and examined. There, A.M. revealed that defendant was the person with whom she had the sexual encounters.
A.M.'s younger brother also testified at trial. He stated that one evening in July 2005, he woke up and went to the bathroom. When he passed his mother's room, he heard the bed moving. He looked into the room and saw his sister naked, on top of defendant. He testified that he did not tell his mother because he was afraid she would kick A.M. out of the house.
The jury found defendant guilty on all charges. Defendant was sentenced on December 12, 2008.*fn1 As stated previously, the trial court merged certain offenses and sentenced defendant to eighteen years of incarceration, with a period of parole ineligibility as prescribed by NERA. This appeal followed.
Defendant raises the following argument for our consideration:
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN SHE BOLSTERED THE TESTIMONY OF THE STATE'S CRITICAL WITNESS AND MADE MANY APPEALS TO THE JUROR'S EMOTIONS, EVEN IN DISREGARD OF THE COURT'S RULING REQUIRING A NEW TRIAL (Partially Raised Below).
As noted, defendant contends that certain remarks made by the assistant prosecutor in her summation denied him of his right to a fair trial. To address this contention, we briefly summarize the summations given at trial.
In his closing argument, defense counsel challenged A.M.'s credibility. He pointed out that initially, A.M. stated that she had sexual relations with someone other than defendant. He also asserted that A.M. was not being honest when she stated that she did not prepare her testimony. Counsel said that the details of each alleged sexual encounter with defendant were similar. He pointed out that, while A.M. said that she and defendant had passed notes to each other, those notes were never produced at trial. Counsel also stated that the results of A.M.'s physical examination did not support her testimony.
In responding to these arguments, the assistant prosecutor argued that A.M. had been credible. She stated that defendant "made" A.M. fall in love with him and there was no reason for her to demonize him. She went over the details of A.M.'s testimony and indicated that A.M.'s descriptions of the sexual encounters were those of a "young kid" inexperienced with sexual matters.
The assistant prosecutor additionally stated that A.M. had been trying to protect defendant but, at some point, "[s]he couldn't hold it in anymore." The assistant prosecutor asked the jury to imagine what this poor girl went through[.]
In love, confused, young, doesn't know about sex, was a virgin having sex with a grown man, a man she trusted, [who] made her believe it was okay. Well[,] he's a grown up, he's kind of the dad, he must be right.
I am the kid and if he says it's okay, it's probably okay.
The assistant prosecutor then detailed the manner in which A.M. was physically examined, reminding the jury, "that she's spread eagle on a table getting examined like a grown woman."
Defendant's attorney objected to these remarks. At a side bar, counsel stated that the assistant prosecutor was improperly endeavoring to engender sympathy for the victim. The assistant prosecutor responded by stating that the manner in which the physical exam was performed was relevant to A.M.'s credibility implying that A.M. would not have subjected herself to the exam if she had not been telling the truth.
The court ruled that the details of the manner in which the physical exam was performed was not relevant. The court stated, however, that counsel could discuss the findings that resulted from the physical exam. The assistant prosecutor stated that she disagreed with the court's ruling. The assistant prosecutor continued her summation.
She stated that A.M. had to go to the hospital and meet with doctors who examined her, "inserted instruments inside her body" and tested her for certain diseases. The assistant prosecutor reiterated that the examining doctors had to "insert instruments." She asserted that another doctor examined A.M. as well "in her butt regions." She said that it did not "end there" because A.M. later had to go to another doctor where A.M. was again examined "stripped down" with her legs "in stirrups[.]"
Defendant's attorney objected and the court again ruled that the "procedure" had no relevance to the crimes allegedly involved in the case. The assistant prosecutor disagreed, stating that these facts lent credence to A.M.'s testimony. The court indicated that the recitation of these facts was an effort to elicit sympathy for A.M. The court stated, "What [A.M.] had to go through has nothing to do with the elements [of the charged offenses]."
The assistant prosecutor argued that A.M. would never had subjected herself to "all of those things if she wasn't telling the truth." The court rejected this argument and stated that the assistant prosecutor was "doing a sympathy act as opposed to rehabilitating credibility." The court ruled that it would not allow the assistant prosecutor to go further with this argument. The assistant prosecutor completed her argument.
Thereafter, defense counsel moved for a mistrial. Counsel argued that in her summation the assistant prosecutor improperly used the word "victim" and "child" repeatedly. He asserted that this had evoked sympathy for the victim. He stated that the case was not about the victim but rather about whether the State had proven all of the elements of the charged offenses beyond a reasonable doubt.
The court denied the motion, noting that it had sustained defense counsel's objection to the assistant prosecutor's remarks concerning the examination and the assistant prosecutor stopped making those remarks. The court indicated that it would instruct the jury that its decision should not be based on sympathy, bias or prejudice. The court added that it might include additional cautionary comments to the jury. The court concluded, however, that it was not convinced that there was anything in the prosecutor's remarks which would cause the court to declare a mistrial.
The State argued that a cautionary instruction was not necessary. The court disagreed. When the court instructed the jury, it provided the following instruction:
The closing arguments of the State may have contained a statement or argument that could be taken in a way that might elicit sympathy for the alleged victim, [A.M.] or possibly prejudicial feelings against the defendant, Adriane Porcell. These emotions have no place in deciding the case or in performing your functions as jurors. Your job is to decide the facts in this case. In other words to decide what actually happened.
Your ultimate determination is whether or not the State has proven its case against the defendant, Adriane Porcell. This requires that you evaluate the testimony and other evidence without bias, prejudice or sympathy. You're to evaluate the evidence rationally, not emotionally.
To the extent that any of the comments by the prosecutor should in any way introduce these emotions in your evaluation process, your deliberations, you should disregard those statements.
Later, as part of its general instructions, the court stated:
Regardless of what counsel said or what I may have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as the judges of the facts. Arguments, statements, remarks, openings, summations of counsel are not evidence and must not be treated as evidence.
Although the attorneys may point out what they think is important in the case, you must rely upon your understanding and recollection of the evidence that was admitted during the trial. Whether or not the defendant is proven guilty beyond a reasonable doubt is for you to determine based upon the evidence presented during the trial.
Any comments by counsel are not controlling. It is your sworn duty to arrive at a conclusion after considering all of the evidence that was presented during the course of trial.
It is well established that "[p]rosecutors are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor." State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)). Even so, "there is a fine line that separates forceful from impermissible closing argument." Ibid. (quoting Jenewicz, supra, 193 N.J. at 471). "[A] prosecutor must refrain from improper methods that result in wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Ibid. (quoting Jenewicz, supra, 193 N.J. at 471).
A conviction may not be reversed unless the prosecutor's conduct was "clearly and unmistakably improper" and "'substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." Ibid. (quoting State v. Harris, 181 N.J. 391, 495 (2004)). In deciding whether reversal is warranted, we "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Marshall, 123 N.J. 1, 153 (1991)).
We are satisfied from our review of the record that the assistant prosecutor's comments did not deprive defendant of his right to a fair trial. We recognize that the assistant prosecutor strongly believed that because the victim underwent the physical examinations, her testimony about the sexual encounters with defendant was credible. Even so, as the trial court correctly ruled, the description of manner in which those examinations were performed could garner sympathy for the victim and thereby prejudice the defense.
We are convinced, however, that the assistant prosecutor's comments were not so egregious as to deprive defendant of a fair trial. As we noted previously, the trial court sustained defendant's objections to the remarks and stopped the assistant prosecutor from continuing to discuss the manner in which the examinations were performed. The court also provided the jury with a cautionary instruction that informed the jury that it must disregard any comments by the assistant prosecutor that might elicit sympathy for the victim or prejudice the defendant.
Moreover, the trial court emphasized that the jury must decide the case on the basis of the facts and made clear that bias, prejudice or sympathy could play no role in its decision.
We are satisfied that the court's curative measures appropriately addressed the potential for prejudice that could arise from the assistant prosecutor's errant remarks and, therefore, those remarks did not have the capacity to divert the jury from its obligation to render a verdict based on the evidence.