On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012
Before Judges Simonelli and Hayden.
This is defendant Thomas Zowasky's second appeal. We reversed defendant's first conviction and remanded for a new trial, concluding, in part, that the jury's unrestricted private replay of his pre-trial videotaped statement outside of his presence and without receiving any of the precautionary measures required by State v. Burr, 195 N.J. 119, 135 (2008), constituted reversible error. State v. Zowasky, No. A-1089-06 (App. Div. January 15, 2009) (slip op. at 9-10).
On this appeal, defendant's assigned counsel raises the following contentions:
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT FAILED TO FOLLOW THE PRESCRIBED CAUTIONARY PROCEDURES WHEN THE DELIBERATING JURY REQUESTED A PLAYBACK OF DEFENDANT'S CONFESSION. (Not Raised Below.)
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE HIS CONFESSION.
THE TRIAL JUDGE EXPRESSED SUCH STRONG BIAS AGAINST DEFENDANT IN HIS COMMENTS DURING THE FIRST SENTENCING PROCEEDING THAT HE SHOULD HAVE BEEN PRECLUDED FROM PRESIDING OVER THE RETRIAL. THE SENTENCE IMPOSED AFTER RETRIAL NOT ONLY MUST BE PRESUMED TO HAVE BEEN TAINTED BY THAT BIAS, BUT ALSO VIOLATES LEGAL PRINCIPLES, AND, CONSEQUENTLY, MUST BE VACATED. (Not Raised Below.)
Defendant raises the following contentions in his pro se supplemental brief:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE HIS CONFESSION/BLURRING THE SEPARATE LINES OF ANALYSIS THAT ARE FOLLOWED IN RESPECT OF THE "SCRUPULOUSLY HONOR" REQUIREMENT VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS ACCORDED HIM BY THE [U.S. CONST., AMEND. XIV AND THE N.J. CONST. ART. 1, PARA. 10.]
THE TRIAL COURT'S ALLOWANCE OF A READ-BACK OF REDACTED PORTIONS OF DEFENDANT'S STATEMENT TO POLICE WAS HIGHLY PREJUDICIAL VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS ACCORDED HIM BY THE [U.S. CONST., AMEND. XIV AND THE N.J. CONST. ART. 1, PARA. 10.]
Finding no merit in any of these arguments, we affirm.
Following a second trial, defendant was convicted of five counts of
first-degree aggravated sexual assault of a victim less than thirteen
years old, N.J.S.A. 2C:14-2a(1) (counts one through five);
second-degree sexual assault, N.J.S.A. 2C:14-2b (count six); and
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a
(count seven). The trial judge imposed a fifteen-year term of
imprisonment on counts one, three and
four, to be served consecutively to each other, and a concurrent
fifteen-year term of imprisonment on counts two and five. All of these
sentences were subject to an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2. The judge also imposed a concurrent five-year term of
imprisonment on counts six and seven, and imposed the appropriate
assessments, fines and penalties. The terms of Megan's Law*fn1
Defendant's convictions stem from his repeated sexual assault of S.P., a twelve-year-old girl he had befriended, from December 2003 to September 2004. Defendant was forty-five years old at the time. On September 20, 2004, defendant gave a videotaped statement to Detective Brian Weisbrot (Det. Weisbrot) from the Burlington County Prosecutor's Office's Sexual Assault/Child Abuse Unit. Defendant acknowledged on the videotape that he voluntarily came to the Prosecutor's Office, and, prior to giving the videotaped statement, received and understood his Miranda*fn2 rights, and initialed and signed a Miranda card. He said that he and S.P. were boyfriend and girlfriend, they had a sexual relationship that began in December 2003, when she was twelve years old, he loved her, and he wanted to marry her. He described the various sexual acts in which they had engaged "countless times" including vaginal intercourse, anal penetration, cunnilingus, fellatio, and digital penetration of the vagina, and the various locations where the sexual acts occurred. Defendant also said that he met with S.P. after the police began investigating the sexual assaults, he told her that he loved and missed her, and she told him she was pregnant and having a miscarriage.
S.P. testified at the second trial that her sexual relationship with defendant began in December 2003, when she was twelve years old. She said they had engaged in various sexual acts, including sexual intercourse, fellatio, and cunnilingus, and their relationship was "[l]ike boyfriend and girlfriend."
S.P. also testified that she had received greeting cards from defendant.*fn3 In some cards defendant wrote "for my loving wife," "I love you," "I miss you," "thinking of you because I love you," "was up all night thinking of you," "I need you," and "Love you, Thomas." S.P. also received a handwritten letter from defendant, addressed "To my loving girlfriend," wherein defendant wrote:
I love you, baby, babe, more than anything. I also miss you too. More than anything. I want you, babe, more than anything. Most of all, I honestly need you, babe, more than anything ever. Babe, I wanted to tell you this a long time ago but I didn't.
I told you I love you, I told you I miss you, I told you I want you but I didn't tell you I need you, baby, I need you like the flowers need the rain. You know I need you, [S.P.]. I'm crazy in love with you. You know like the morning needs the sun. Well, I need you, [S.P.], baby. Things aren't always going to be like they are now. Me and you finding it hard to see each other alone. Yes, you have said many of times you wish things would get better or get back to the way we had been. You and me sleeping in each other's arms all night. We really started making some good love --- loving, baby. Oh, how I miss it too. But what loving you give me I cherish and hold as a greatest love, babe. You're my only love and I need you. I hope you need me as well.
[S.P.], I can't stand you saying you're going to hurt yourself, baby. I would go nuts if you did. I think, I think you know this too. Like the morning needs the sun, I need you every morning and every day, without you I'm lost. First, I would like --first I would walk out -- at first, I would walk out to go to work and, well, my heart was broken cause I didn't see you not waking up -- me up or coming inside surprising me in the morning, kissing before you went to school and me to work. Hey, even some love making. No, but as I walked out to go to work, [there was], no [S.P.] with me. As I stand there by myself looking, no [S.P.].
One minute, one mother fucking minute before your bus come, I get to see you. And I can't even talk to you. This baby hurts me bad. I'm lost without you.
If I could cry without everyone seeing, I would. This, baby, is why I talk to you -- or this is why I talk to myself at work as if I'm talking to you and, believe it or not, I hear you talking back to me in my spirit. That's my heart, babe. [S.P.], I love you more than anything ever before and in time you'll see everything fall into place and you're in everything I ...