April 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0386.
The opinion of the court was delivered by: Per Curaim
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2011
Before Judges Waugh and St. John.
Defendant J.R. appeals from his conviction on one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14- 2(c)(1), and one count of fourth-degree criminal sexual conduct, contrary to N.J.S.A. 2C:14-3(b).*fn1 We affirm.
Defendant is the father of Wanda,*fn2 who was born in Honduras. When Wanda was three years old, defendant moved to the United States. Wanda remained in Honduras with her mother. After the move, defendant and Wanda spoke occasionally via telephone, at most once a month.
When Wanda was a teenager, she and defendant began discussing the possibility of Wanda moving to America. As she grew older, Wanda was reluctant to make such a move because she had three daughters whom she did not want to leave behind in Honduras. Nevertheless, Wanda eventually decided to move to the United States so that she could eventually give her children a better future.
Wanda came to the United States lawfully in September 2007, when she was twenty-six. At that time, Wanda's children did not have the necessary documents and were not able to come with her.
After she arrived in this country, Wanda lived with defendant and his wife in Elizabeth.
At the time of the alleged offenses, defendant lived in a two-bedroom apartment. One bedroom was occupied by him and his wife, and the other by a friend of defendant. Wanda slept in the living room.
On September 12, the day after Wanda's arrival, defendant made sexual advances to her, which she rebuffed. Wanda testified that, from September 13 to November 16, defendant sexually assaulted her on a daily basis while his wife and friend were at work. According to Wanda's testimony, defendant physically restrained her during the assaults, and also threatened to kill her and to take away the documentation she needed to stay in the United States if she told anyone. Wanda testified that, on one occasion, defendant sexually assaulted her late at night while his wife was asleep in the bedroom. On another occasion, defendant took Wanda to a hotel where he sexually assaulted her.
Approximately one week after she arrived in the United States, Wanda contacted her mother in Hondouras and told her that defendant had sexually assaulted her. Wanda's mother then contacted her cousin to arrange for Wanda to move in with him.
He also lived in Elizabeth. However, Wanda's mother did not disclose the sexual assaults to the cousin.
The cousin called Wanda approximately two weeks later and the two met. Because the two did not know each other, Wanda did not initially tell her cousin that defendant had sexually assaulted her. The cousin and Wanda continued to meet on the weekends, but Wanda still did not feel sufficiently comfortable with him to disclose the sexual assaults.
On November 16, after defendant told Wanda to leave his apartment, she moved into the apartment rented by her cousin and his wife. Defendant subsequently contacted Wanda in an effort to convince her to move back to his apartment, but she refused. However, on November 20, Wanda went to defendant's apartment to gather her belongings, relying on defendant's assurances that his wife would also be there. Wanda testified that defendant was alone in the apartment when she arrived, and that he sexually assaulted her.
Defendant had previously arranged for Wanda's green card to be sent to his home. Wanda contacted defendant a few days following the November 20 assault to see if it had arrived. Around that time, Wanda also spoke with defendant regarding the sexual assaults because she did not "want to have problems with him." They agreed that the sexual assaults "should be a part of the past and that [they] should move on." Their relationship improved after reaching that agreement.
On December 7, Wanda and defendant met to gather documents that she needed to obtain her green card. That same day, the cousin suggested that they invite defendant over for dinner because it was defendant's birthday. Later that night, defendant and several friends came to the cousin's apartment to celebrate.
During the party, defendant became drunk. Wanda took him to a bedroom so he could rest. While in the bedroom, defendant attempted to kiss Wanda and shoved her into a closet when she resisted. At that point, the cousin came into the room and Wanda ran to the bathroom. Defendant left after the cousin told him to leave.
However, Defendant attempted to get back into the apartment when Wanda opened the door for another guest. He attacked Wanda, but the cousin was able to pull him away and again told defendant to leave. The cousin called the police because Wanda was afraid defendant would return. While waiting for the police to arrive, Wanda told the cousin for the first time that defendant had been sexually assaulting her.
When the police arrived, they asked the cousin to call and instruct defendant to come back to the apartment. The police arrested defendant after he returned.
Defendant was indicted on May 2, 2008. He was tried before a jury over the course of four days during May and June 2009. The State offered testimony consistent with the facts stated above at trial.
Defendant testified at trial, denying all of Wanda's allegations. He also disputed the events related to his birthday party. Defendant claimed that after Wanda lost money in a card game at the party, she insulted him and jumped on him. According to defendant, the cousin pulled Wanda away from him. Defendant's wife testified on his behalf. She did not witness anything to suggest that defendant and Wanda had any kind of sexual relationship, although they constantly argued about Wanda's children coming to the United States. She also testified that she worked two jobs and did not know where defendant and Wanda were while she was at work. Defendant's wife did not attend the December 7 party. The wife's daughter testified on defendant's behalf, asserting that Wanda's cousin told her that Wanda had asked him to lie to the police so they would arrest defendant.
The jury found defendant guilty of sexual assault and criminal sexual contact. On December 4, the trial judge sentenced defendant to a term of imprisonment of eight years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for the sexual assault, and to one year of imprisonment, to be served consecutively, for the criminal sexual contact. The judge ordered parole supervision for life, registration under Megan's Law, and imposed required fines and penalties.
Defendant raises the following issues on appeal:
POINT I: THE STATE'S EMPHASIS ON INFLAMMATORY DETAILS CONCERNING THE VICTIM'S BACKGROUND AND THE EMOTIONAL IMPACT OF THE ALLEGED SEXUAL ASSAULTS WAS UNDULY PREJUDICIAL AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
A. Evidence Of The Victim's Character And Emotional Suffering Were Inherently Inflammatory And Created A High Risk Of Undue Prejudice.
1. Inflammatory background evidence.
2. Inflammatory victim-impact evidence.
B. The Probative Value Of [Wanda]'s Personal Background And The Emotional Impact Of The Alleged Assaults Was Substantially Outweighed By The Risk Of Undue Prejudice.
C. The State's Inflammatory Presentation Ran Afoul Of The Prosecutorial Duty To Refrain From Appealing To The Jury's Emotions.
D. Admitting The Evidence of [Wanda]'s Background And Emotional Suffering Was Harmful Error.
To put defendant's contentions in context, we outline the aspects of the prosecutor's conduct during the trial about which defendant now complains.
During opening statements, the prosecutor discussed the testimony that the State intended to offer at trial. In doing so, the prosecutor told the jury the following:
[Wanda] made a big sacrifice in life. [Wanda] left her home in Honduras, where she lived all her life. She left behind a family and her children to come to America, to try to better her life for herself and, more importantly, for her children.
Coming to America was supposed to be an opportunity for [Wanda] to find a better life for herself and her family. It was also an opportunity for [Wanda] to meet the defendant, who is her father that she never really knew.
Unfortunately, the defendant saw [Wanda]'s coming to America very differently. What [Wanda] saw [as] an opportunity to make a better life for herself and her family, the defendant used . . . as an opportunity to repeatedly sexually assault her and threaten to kill her and take away the life she was trying to create for herself and her family.
Over the course of this trial, you're going to have an opportunity to learn all this about [Wanda]'s life. And like I said before, [Wanda] was born in Honduras and grew up there most of her life.
[Wanda] lived in Honduras most of the time with her mother, and the defendant, who is her father, left Honduras when Wanda was an infant, so [Wanda] never really knew him too well.
As [Wanda] got older, the defendant would call her and occasionally they would speak on the phone together. In 2007, the defendant started to ask [Wanda] to come to America, and told her that there was more opportunity here and that she could have a better life.
[Wanda] was kind of torn about what to do. On one hand, Honduras had always been her home, where her family was. The people that she loved the most in her life, her mom and her children, were over there in Honduras. But, on the other hand, as you can probably imagine, life in Honduras is not easy . . . and [Wanda] wanted to provide the best that she could for her family.
On September 11, 2007, [Wanda] . . . came to this country. When she arrived here, she was having mixed feelings. On one hand, she missed her family back home, but on the other hand she was excited about starting her new life here.
After outlining the details surrounding the first time defendant touched Wanda in a sexual manner, the prosecutor continued:
Now as you can imagine, at this point, [Wanda]'s got about a million things running through her head. She's in a new country, where she doesn't really know anything about the country. The family that she loves is back home. Her father, who she had just met, had just tried to kiss her on the mouth and touch her breast, but still she wanted the opportunity for a better life for herself and her family.
Well, . . . on September 13 of 2007, the defendant took away any opportunity [Wanda] had to find a better life in this country.
On September 13, when they got up in the morning, defendant's wife went to work. When they're in the apartment, and they're alone together, the defendant shoved [Wanda] down onto the bed. And [Wanda] asked him, what are you doing? What's going on? The defendant told her, this is how things are in America. Shut up and just go along with it or I'll kill you.
At that point, he climbed on top of [Wanda], held her down, and raped her. When he was done raping her, he told her, if you tell anyone what I've done, I will kill you and take away the life you're trying to build here.
That was the first time that the defendant raped [Wanda], but unfortunately it was not the last. For the next two months, while [Wanda] was living in his apartment, he would sexually assault [her] on a daily basis . . . while threatening to kill her and take away the life she was trying to build.
Defense counsel did not object to the prosecutor's opening statement.
On the second day of trial, the prosecutor asked Wanda about her life in Honduras. Defense counsel objected. At sidebar, the prosecutor stated: "I believe [her answer is] going to [be] it was okay . . . ." The judge overruled defense counsel's objection, based on the presumption that "the testimony [would be] consistent with the proffer." Wanda then answered the question:
PROSECUTOR: Now around 2005 and 2006 when the defendant is talking to you about coming to America, are things still hard for you over in Honduras?
[WANDA]: Very difficult . . . .
PROSECUTOR: Why didn't you want to come to America?
[WANDA]: Because of my - because of my daughters . . . .
PROSECUTOR: Eventually did you decide to come to America?
[WANDA]: I did it for my mom . . .
[s]he told me to come so that I could give my children a better future . . . .
PROSECUTOR: When you flew out here on September 11th of 2007, how did you feel on the plane ride out here?
[WANDA]: Very bad . . . because my entire family was left behind . . ..
PROSECUTOR: And that night when you went to bed, your first night here [in the United States], how were you feeling?
[WANDA]: Bad, I was not with my daughters or with my mother. The prosecutor also asked Wanda to tell the jury the names of her three children, which she did. On eleven occasions, the prosecutor asked Wanda to describe how she felt after being sexually assaulted and how it felt to tell others that her father sexually assaulted her. There were no objections to those questions.
Wanda's mother was questioned about how she felt when she learned defendant had sexually assaulted Wanda. She was also questioned about Wanda's demeanor while she told her mother over the phone that defendant had sexually assaulted her. There was no objection to those questions.
Because defense counsel did not object to the State's opening and most of the testimony at issue,*fn3 we must consider his argument that the prosecutor engaged in misconduct under the plain error rule. See R. 1:7-2; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). In addition, it is ordinarily "fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (citations and internal quotation marks omitted).
"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262, (1956)).
In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court 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. Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.
[Ibid. (internal citations and quotation marks omitted).] Nevertheless, the prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. Ramseur, supra, 106 N.J. at 320 (citation and internal quotation marks omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (alterations in original) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).
Most importantly for our analysis in this case, a prosecutor's alleged "misconduct must be viewed in the context of [the entire] trial." Id. at 323. The State's case was that defendant had sexually assaulted Wanda over a period of many weeks, but that she had not told anyone initially because she was afraid of the consequences. After she told her mother and her mother arranged for her to contact her cousin, she did not tell the cousin about the sexual assaults until after the altercation with defendant following the party at the cousin's apartment. In contrast, the defense case was that there had been no sexual assaults and that Wanda's testimony was not credible. The defense's argument on credibility was based in part on her long delay in disclosing the alleged sexual assaults. With respect to Wanda's reasons for making the accusations, defendant testified that he and Wanda had argued over his unwillingness to help her bring her children to the United States and restrictions that Wanda thought he had been unfairly placed on her activities.
The following excerpt from the defense summation demonstrates how the evidence to which defendant now objects was used by defense counsel.
She tells you that she was being raped on a daily basis, and there's a certain, you wonder, well, why would she lie about that. Well, think about the situation that she is in. We know you know much about [Wanda's] personality. We've seen her testify here. You've seen her testify here.
What we do know is that she comes from Honduras. She left her three children to come up here. Now emigration to the United States comes because people want to make their lives better. They want to have more, they want to have more freedom, they want to have more opportunity, they want to have a better life that they believe, many, many millions of people have found . . . in the United States, but that comes at a tremendous personal cost for many, many people.
Leaving your three children, I don't doubt that she loves her children, I think she misses her children terribly, and she's sad and upset, leaving all of her friends behind, that must be tough, too, coming to live with a father she has never known, that's tough, too, suddenly being under the restrictions in the house of . . . older people who she doesn't know.
It's a common emigrant experience to come to the United States, to stay with people, relatives and friends, until you get on your feet, you get out, and you go. That's what happened with [the cousin] and that's what was happening here.
So when you look at the evidence of what she said, that she was here and that she called up to get some relief for what was happening to her when she talked to her mother and told her mother about it, remember when she met [the cousin] she didn't tell him what was happening to her.
Here was her rescue from this situation of being raped on a daily basis, and what did she do? Her mother testified she was desperate, she was desperate. She sees . . . her cousin, does she tell him? She said on the witness stand she didn't even talk to him about moving in with him.
Now [the cousin] bolstered his story. He started embellishing as he goes along, as he talks about it a long time, he's bolstering his story and saying yeah, she talked to me about that, but he was already on the record to say that she didn't talk to me about the sexual assault. So he said [she] never said anything about the sexual assault.
Does that make any sense? Does a woman who's desperate, does a woman who has an opportunity, a cousin, someone who's familiar, somebody that she knows, somebody who she can rely on to get her out of what is a terrible, terrible situation, and what does she do? Nothing. She has the opportunity to do, nothing.
And if you think maybe, okay, she's depressed, she's upset, she's confused, she doesn't really know what to do, but she called her mother and her mother said, well, I got in touch with [the cousin's] grandmother, I got the number, I . . . called [the cousin] up and told him to contact [Wanda] . . . but I didn't tell [the cousin] about my situation.
Well, look at it this way, it would be a normal and natural thing for a mother, hearing about the sadness of her daughter leaving her children, assume there was no sexual assault, and that's consistent with what happened.
She calls her mother, she's upset, she's not happy here, she misses her children, she misses her family, she misses Honduras, and her friends, and her mother says, well, you've got a cousin, you remember [the cousin], oh, he's up here, yes, oh, I'll get his number, I'll put you in touch with him so that she'll have somebody younger, more her generation, somebody that she can have fun with, somebody who can introduce her to a social life here in the United States that she so desperately wants and needs.
And so she does that, but even if [Wanda] is there, one of the basic instincts that every mother has is to protect her child, and that never goes away, and she's hearing about the desperation of her daughter, in this impossible situation, the man that had left her and gone to the United States years, and years, and years before, who had never seen her daughter, that man, who she was married to and who walked out on her life is now sexually abusing that daughter, a desperate, horrible situation that she would feel guilty about, she calls [the cousin] up and does she say she's desperate, you've got to get her out of there, go over there, get her stuff, take her to your apartment, I don't care, you've got to get her out of there? No, please get in touch with [Wanda], please get in touch with [Wanda].
Maybe she's unhappy, maybe she's lonely, maybe she needs the contact with young people, but nothing about rescuing her from this terrible situation.
So when I say look to see whether they're telling the truth by what their conduct is at the time, does their conduct make sense? Does their conduct make sense? No, it does not. It does not.
Now you say, well, why would the daughter lie. Well, the daughter was unhappy. She's apparently chafing under the restrictions of living in the household. She wants her children there and is upset because [defendant] won't support bringing the children, not enough money for the children, the husband in Honduras is putting up obstacles to that, [defendant] says there's no child care here, you've got to arrange for all that. [Wanda] is upset about that.
Then, and this is where it gets to the restriction part, [Wanda] is thrown out of the house. Now think about that. [Wanda] is thrown out of the house. [Wanda] is thrown out of the house the defendant said . . . she was rebellious. Their story was that . . . she was sitting on someone's lap, a friend of [the cousin's] at a bar and her father came in and thought that that was an inappropriate thing for his daughter to be doing and they had an argument and he kicked her out of the house and she went to live with [the cousin].
Although the effort was ultimately unsuccessful because of the jury's credibility determinations, defense counsel made careful and cogent use of the arguments and testimony about which defendant now complains, largely for the first time, to argue his client's case to the jury.
Having examined the arguments and evidence at issue and the use made of it by defendant in trying to persuade the jury that Wanda's testimony was not credible, we conclude that there is no basis to reverse the conviction because the prosecutor's conduct, when viewed in context, was not "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83 (citing Ramseur, supra, 106 N.J. at 322). Consequently, we affirm defendant's conviction.