October 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL J. PAOLUCCI DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 26-10-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011 -
Before Judges Messano and Yannotti.
Defendant Michael Paolucci appeals from his conviction for lewdness, N.J.S.A. 2C:14-4(a), following a de novo trial in the Law Division.
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2012). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Because in rendering his verdict, the Law Division judge did not discuss the witnesses' testimony at length, and because some of the issues defendant raises before us relate to procedural matters in the municipal court, we reference the municipal court proceedings at length in order to place the issues in full context.
Defendant was represented in the Stillwater municipal court by counsel. Prior to the introduction of any testimony, defense counsel noted that five witness statements were provided in discovery, but only two of the witnesses were present in court. The prosecutor explained that two of the missing witnesses "went back to Europe," and the third "live[d] in Florida." All three were beyond the subpoena powers of the court.
Defense counsel also noted that a DVD existed, supplied by defendant the day before trial and given to the prosecutor that morning, and that he intended to introduce the DVD in evidence.
Without specifically ruling on the admissibility of the DVD, the judge proceeded to trial.
Maril Davenport testified that she was the rowing coach at Blair Academy. On April 17, 2008, at about 3:30 p.m., she and another coach were in a boat on Swartswood Lake accompanying the girls' rowing team during practice. Davenport spotted a man, later identified as defendant, in a third boat, naked, and "pleasuring himself." She instructed the girls to "turn and keep rowing away." Davenport was certain that the man was naked and masturbating.
She contacted the men's coach via "walkie-talkie," and together it was decided to contact the police. Davenport drove her boat to the boat launch where the New Jersey State Park Police boat was located. She pointed out defendant who was still in his boat on the lake.
Stephanie Guilmet, the other coach, testified that when she spotted defendant, she instructed the rowers by megaphone to steer away from his boat. The rowers had noticed defendant because "[t]hey were all looking at him and pointing." Guilmet testified that she was approximately twenty-five feet from defendant, who was naked. In her handwritten statement provided to the police that day, Guilmet claimed defendant "began motioning himself inappropriately, appearing to masturbate."
Andrew Cockerham, of the New Jersey State Park Police, testified that he received a 911 call from the Stillwater police and "went straight for [his] boat launch." Davenport and Guilmet were present in their boat and provided written statements of the incident. Cockerham and other officers drove their boat to defendant's boat on the lake and "told him to head back to the boat launch." Defendant was "nervous, shaking [and] jittery," and Cockerham "smelled alcohol from a two and half to three foot distance . . . from him."
Defendant was arrested, denied drinking and being naked on the boat, and claimed the episode was a "misunderstanding."*fn1
However, during the interview, defendant asked "if he had three or four beers [today] would he be arrested for a D.U.I." Cockerham testified that defendant had on "jean shorts" at the time, and a "tanish, orangish . . . Speedo bikini-type suit" underneath. Defendant claimed he was fishing. Cockerham observed that defendant's boat had "[n]o tackle box, no live well, [and] no fish," although some fishing poles were "strung up on the side of his boat." The State rested after Cockerham's testimony.
Defendant called Park Police officer Viggiano.*fn2 He testified that when defendant arrived at the boat launch and was told of the accusation, he "was a little bit shocked about it." Viggiano described defendant's bathing suit as "like a leopard," "brownish color with sort of black stripes, [or] dots."
Defendant then sought to introduce a tape recording of Guilmet made by defense investigator, Bill Dalton. Because it had not been provided pre-trial, the judge continued the trial to permit the State to evaluate the evidence. The trial re-convened approximately one month later.
Dalton testified that he spoke to Guilmet the evening before she testified. Although he taped the conversation, the tape "ran out," and only some of the conversation was actually recorded. The tape was played for the judge.
Dalton acknowledged that Guilmet confirmed the contents of her written statement given on the day of the incident, including her assertion that "she couldn't confirm or deny whether [defendant] was wearing a bathing suit." However, on cross-examination, Dalton further acknowledged that Guilmet affirmed that portion of her statement in which she claimed defendant was naked and "appeared to be masturbating."
Defense counsel then sought to admit the written statements of three girls who were on the rowing team boat. The State objected, noting all three were unavailable because they were outside the State of New Jersey. The judge sustained the objection.
Gregory Juckett, defendant's long-time friend, testified he was on the lake on April 17, 2008 in his own boat. He saw the boats of the girls' rowing team, as well as defendant, who was in his boat. The boats were not close to each other. Defendant was fishing and had on a pair of "shorts."
Defendant testified that he was alone in his boat on the day in question. He removed his shorts, was briefly naked while lying in the well of the boat, and put on a Speedo bathing suit. He put his shorts back on when he approached Juckett's boat because he was embarrassed by the skimpy suit. Defendant claimed that he was fishing and had the pole down by his side. He testified that the girls' rowing team boats were never close to his boat. Defendant identified the Speedo bathing suit he was wearing that day.
Defense counsel sought to introduce the DVD showing defendant in his boat wearing the Speedo. The judge sustained the State's objection, noting it was "something that could have been taken . . . a long time before and . . . sent to the Prosecutor." However, photos of defendant wearing the Speedo while standing in his boat were admitted in evidence without objection. Defendant denied ever taking off his bathing suit and masturbating.
On cross-examination, defendant admitted drinking three cans of beer on his boat that day. After the park police ordered him to proceed to the boat launch, he "s[ank]" the empty cans. He admitted telling the officers that he had not drunk any beer that day. Defendant also admitted urinating over the side of his boat.*fn3
The municipal court judge thoroughly reviewed all the testimony. He found Davenport and Guilmet to be credible and had "serious issues as to [defendant's] credibility." The judge concluded that defendant had "conduct[ed] himself in a manner that was set forth by the . . . two coaches," that he "exposed himself by urinating," and that he "was naked in his boat while he was changing his . . . shorts." The judge found defendant guilty of lewdness, imposed a $500 fine, other financial penalties, and, in lieu of prohibiting defendant from boating on Swartswood Lake, ordered defendant to undergo counseling.*fn4
Defendant appealed pro se to the Law Division. He argued that the municipal court judge erred in refusing to admit the DVD and the statements of the three girls into evidence. It appears from the transcript that the judge reviewed the statements, and he permitted defendant to read into the record some of their contents during argument. Defendant also pointed out alleged inconsistencies in the testimony of Davenport and Guilmet.
The judge noted that the statements of the three missing witnesses "were consistent . . . with the testimony of Davenport and [Guilmet] regarding [defendant's] actions, that of masturbating. And the testimony of Guilmet and Davenport [were] also consistent in that regard." Noting "there were certain minor differences in the statements of [Guilmet] and Davenport," the judge nonetheless concluded "those differences do not rise to any [significant] degree to cause the Court . . . to not be firmly convinced of . . . defendant's guilt beyond a reasonable doubt." This appeal followed.*fn5
Before us, defendant has reiterated the arguments made before the Law Division. We find them to lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only the following.
As part of his appendix, defendant has supplied the statements taken from the three missing witnesses. It suffices to say that each of the girls stated that defendant "seemed to be nude," or "seemed to have no clothing on." The three described defendant "making a sexual motion with his hand," or "making a blatant motion of masturbation," or "pleasuring himself." In short, while we agree the statements were properly excluded as hearsay, even if deemed admissible, they were not exculpatory.
The DVD, which was excluded because of alleged discovery violations, was, at best, cumulative evidence. Photos showing defendant wearing the Speedo in his boat -- the proffer made as to the contents of the DVD when offered by defense counsel --were admitted in evidence at trial and the judge had the opportunity to consider them.
As noted above, our standard of review in this case is quite limited. The Court has said:
Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [Locurto, supra, 157 N.J. at 474 (citations omitted).]
Our review of the complete record convinces us that the credibility determinations made by the municipal court and the Law Division should not be disturbed.