August 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCELLUS D. BARNES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1815.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Graves and Yannotti.
Defendant Marcellus D. Barnes was tried before a jury, which found him not guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), but guilty of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant appeals from the judgment of conviction dated December 14, 2010. We affirm.
At the trial of this matter, the State presented evidence which established that on July 8, 2009, J.S. was residing with her mother in Asbury Park. She was fifteen years old at the time, and had a son who was one-and-one-half years old. J.S. was home alone with her child at around 8:00 a.m. She said she was bored. She called defendant and invited him over. Defendant was then thirty years old and worked at a local pizza parlor. It seems that a friendship had developed between defendant and J.S. in the weeks before July 8, 2009.
Around 9:00 a.m., defendant returned J.S.'s call and thereafter, he went to J.S.'s house. They sat and watched television in her bedroom. The baby was running around. J.S. testified that she wanted "to do some sexual things[.]" Defendant wanted to leave but J.S. would not let him leave. J.S. started to perform oral sex upon defendant. The baby came into the room. J.S. stopped and put him to sleep on the bed. J.S. and defendant started to have sex.
J.S. said she performed oral sex upon defendant twice, and she and defendant twice engaged in sexual intercourse. At some point, J.S.'s mother returned to the home and observed defendant and J.S. engaging in sexual intercourse. J.S.'s mother chased defendant from the house and called the police. J.S. was taken to a hospital. She refused to allow the nurse to test her because she did not want to get defendant into trouble. J.S. did, however, provide buccal swabs.
The jury found defendant not guilty of sexual assault but guilty of endangering the welfare of a child. Thereafter, defendant filed a motion for a new trial. The trial court denied the motion. The court sentenced defendant to parole supervision for life and required that defendant comply with Megan's Law, N.J.S.A. 2C:7-1 to -23. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE PROSECUTOR'S IMPROPER AND PREJUDICAL COMMENTS DURING SUMMATION AND OTHER ERRORS WHICH DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
POINT TWO THE TRIAL COURT'S REFUSAL TO HOLD AN EVIDENTIARY HEARING REGARDING THE PROSECUTOR'S INTRODUCTION OF INFLAMMATORY TESTIMONY REGARDING RUMORS THAT DEFENDANT HAD AIDS WAS PREJUDICIAL ERROR MANDATING REVERSAL OF HIS CONVICTION.
Defendant argues that the trial court should have granted his motion for a new trial because of certain comments the prosecutor made during her summation. We do not agree.
The trial court may grant a defendant a new trial "if required in the interest of justice." R. 3:20-1. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; State v. Perez, 177 N.J. 540, 555 (2003).
Defendant maintains that he was denied a fair trial because the prosecutor stated in her summation that the testimony of J.S. and her mother that defendant had engaged in sexual activity with J.S. was "undisputed." Defendant maintains that this was an implicit comment on his election not to testify or call witnesses on his behalf. Defendant also says that the prosecutor's comment shifted the burden of proof to defendant.
We note that defense counsel objected to the prosecutor's comment. Thereafter, the trial court gave the jury the following curative instruction:
There was a comment just made by the prosecutor about testimony being undisputed. Whether or not testimony is credible is for you to decide. You are not to infer from her comment that . . . the defendant here, . . . is not contesting [the testimony]. Simply because he didn't get on the stand to say I didn't do it doesn't mean it occurred.
I will read you a charge on [defendant's]
[c]onstitutional right not to testify. You are aware he has a [c]onstitutional right not to testify. You cannot give any adverse inference to the fact that he decided not to testify, and you will find the facts as you find them to be based upon the credible testimony, not simply because someone said X, Y or Z. So you are to disregard that comment.
In addition, in its final instructions, the trial court told the jurors that it had given them an instruction limiting their use of certain evidence, including the instruction provided during the prosecutor's summation. The court stated that the "evidence must be considered by you for the purpose" indicated, and the jury could not use the evidence "for any other purpose."
In denying defendant's motion for a new trial, the trial court stated that the prosecutor's characterization of the evidence as uncontroverted followed defense counsel's summation [which was] replete with the theme that the State failed to produce certain evidence or produce a witness to explain the lack thereof and that the sexual act did not, could not occur because it could not have taken place as described by the victim. Presumably, the [assistant] [p]rosecutor's comments were in response to this argument.
The court additionally stated that the harm resulting from the comments was minimal because the State had presented multiple witnesses, the prosecutor's remarks were brief, and the prosecutor did not make any direct comment on defendant's exercise of his right not to testify. The court also said that defendant had not shown that the jury would have reached a different conclusion had it not been for the prosecutor's remark. The court concluded that defendant was not denied a fair trial.
We are satisfied that the trial court's instructions appropriately addressed the potential for prejudice that could arise from the prosecutor's comment. As the trial court noted in its decision denying defendant's motion for a new trial, the prosecutor did not directly comment on defendant's exercise of his right not testify at trial. Moreover, as we have explained, the court instructed the jury to disregard the assistant prosecutor's statement. We must assume that the jury followed the court's instructions. State v. Burris, 145 N.J. 509, 531 (1996).
Defendant also argues that the trial court should have granted his motion for a new trial because the prosecutor stated in her summation that "[t]he fact of the matter is that [J.S. and defendant] had sex. J.S. told you she had sex with him." Defendant contends that the prosecutor thereby improperly bolstered J.S.'s credibility and improperly stated her personal belief as to defendant's guilt. Again, we disagree.
"A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (citing State v. Marshall, 123 N.J. 1, 154, 156 (1991)). Nevertheless, a prosecutor is permitted to "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." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citations omitted), certif. denied, 182 N.J. 148 (2004).
The record shows that in his summation, defense counsel strongly attacked the credibility of J.S. and her mother. He argued that it was impossible for J.S. and defendant to have engaged in all of the acts she testified about between 9:00 a.m. and the time her mother returned to the house. Defense counsel additionally argued that J.S.'s description of what was happening when her mother arrived differed substantially from what her mother said she saw when she entered the room.
In her closing statement, the prosecutor responded to these arguments. As we noted previously, the prosecutor stated that defendant and J.S. "had sex." But that statement was made in the context of arguing that J.S. and her mother were credible witnesses. She stated, "I'm asking you to consider did it seem like anything that her or her mother said was a lie? Did it sound made up? If you believe what they said then you've got to find this defendant guilty." Thus, considered in the context of the entire summation, the prosecutor did not vouch for J.S. Furthermore, the prosecutor did not refer to evidence not in the record or offer a personal opinion as to the credibility of the witnesses or defendant's guilt.
Defendant additionally contends that the prosecutor improperly commented on the testimony which indicated that J.S.'s baby was on the bed when defendant and J.S. were having sex. It should be noted, however, that defense counsel repeatedly mentioned this fact in his summation. In responding to those comments, the prosecutor said that defense counsel's remarks were intended to make J.S. "look bad[.]"
The prosecutor added that J.S. was fifteen years old at the time of the alleged offenses. She stated, "What does it say about the [thirty] year old that has no qualms about having sex with her when her child is on the bed? What does that say about the [thirty] year old, the guy who's twice her age that should know better?"
Defendant maintains that the prosecutor improperly impugned him by making these statements. We do not agree. The prosecutor was merely responding to defense counsel's remarks, which she viewed as an attempt to impugn the victim. We are satisfied that the prosecutor's statements were not inappropriate. Indeed, they were a fair comment on the evidence. Moreover, defense counsel did not object to the remarks when they were made, thereby suggesting that he did not view the remarks as prejudicial. State v. Frost, 158 N.J. 76, 83 (1999).
We therefore conclude that the trial court did not err by denying defendant's motion for a new trial. The trial court correctly found that the result here was not a miscarriage of justice under the law. R. 3:20-1.
Next, defendant argues that the trial court erred by failing to declare a mistrial sua sponte after J.S. testified that she had been taken to the hospital because "there was a rumor going around" that defendant had a certain illness. Defendant also argues that the court erred by failing to conduct an evidentiary hearing to investigate the source of the rumor and whether the prosecutor knew or could have anticipated J.S.'s statement during her direct testimony. Again, we disagree.
The record indicates that, in his opening statement, defense counsel pointed out that there was no physical evidence that defendant engaged in sexual intercourse with J.S. Defense counsel stated that the evidence would show that J.S. "absolutely refused to be examined, provide any clothing, any samples, anything." He commented that J.S. had only provided oral swabs that "were never even tested."
When J.S. testified, the prosecutor asked J.S. why she had been taken to the hospital, and J.S. replied that there was a rumor that defendant had a certain illness. Defense counsel objected and, when questioned about J.S.'s testimony, the prosecutor stated that this was "the first time [she] was hearing of this[.] The court said that it was "very difficult" for it to believe that the prosecutor did not know "that answer was coming."
The court then provided the jury with the following instruction:
Ladies and gentlemen, you heard an answer given in response to a question of, Do you know why you went to the hospital? In these types of situations, it is policy for the police department to transport an alleged victim to the hospital.
Any comment about a rumor that I was taken because the defendant may have had [a certain illness] is totally irrelevant to why she went to the hospital, that is No. 1. No. 2, there is no evidence at all in anything that has gone on in this case that the defendant may have [that illness]. There's no evidence of that at all. So I ask you to totally disregard that last answer about . . . the rumors . . . . That's not the reason she was taken to the hospital.
It's a procedure for her to go to the hospital when these allegations are made.
The trial court must immediately and specifically provide the jury with a curative instruction "to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into the trial." State v. Vallejo, 198 N.J. 122, 135 (2009) (citing State v. Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)).
We are satisfied that the trial court was not required to declare a mistrial sua sponte as a result of J.S.'s statement. As we have explained, the court provided an immediate and specific instruction to the jury. The court's instruction appropriately alleviated the possibility that defendant would be prejudiced by J.S.'s statement.
Defendant additionally argues that the trial court should have conducted an evidentiary hearing to determine the source of the rumor and whether the prosecutor knew or could have anticipated the statement when she questioned J.S. We are convinced, however, that the court did not abuse its discretion by refusing to conduct such a hearing. The court's curative instruction addressed the issue and a further inquiry into the matter was unnecessary.
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