October 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-06-1117.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2012
Before Judges Fisher and Waugh.
Defendant G.L.W., to whom we refer using the pseudonym Gloria, appeals her conviction for two counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and one count of sexual assault, contrary to N.J.S.A. 2C:14-2(b). We affirm.
We discern the following facts and procedural history from the record on appeal.
Gloria was born in Jamaica in 1985. She came to the United States to attend college in Georgia, and graduated in 2007. She then moved to Teaneck to live with her father, his wife, and their two children.
Because her half-sister was at college, Gloria used her bedroom. Her half-brother, G.W., to whom we refer using the pseudonym Greg, was sharing his bedroom with his maternal grandfather, who was visiting the family. Greg, who was twelve years old at the time, slept on the floor and his grandfather slept in Greg's bed.
After a few weeks, Greg started sharing Gloria's bedroom, sleeping in the double bed with her. She agreed to let him do so and, according to Greg, his parents were aware of the arrangement and allowed it to continue.
One night in June 2007, Greg touched Gloria by tickling or stroking her back. The participants' versions of what happened next differ significantly. According to Greg, the activity became sexual and included his fondling Gloria, her touching his penis, and his engaging in oral sex at her urging. Although Gloria admitted to touching Greg's penis in her subsequent statement to the prosecutor's office, she had originally maintained that Greg had engaged in the sexual conduct against her will. Both Gloria and Greg agree that she put a stop to the encounter and told him that their conduct was wrong.
On the following day or soon after, Gloria reported the incident to her father, who then told his wife. The couple discussed the incident with Gloria and Greg. Greg told his father that he had initiated the sexual conduct. The father and Greg's mother established specific ground rules for Gloria's continued residence at their house, including prohibiting Greg from sleeping in the same room with Gloria.
Approximately eighteen months later, Greg's mother discussed the incident with a counselor, whose supervisor reported it to Division of Youth and Family Services (DYFS). After interviewing Greg and his mother, DYFS reported the matter to the Bergen County Prosecutor.
Gloria was interviewed by Prosecutor's Detective Ismael Alsina and Teaneck Police Sergeant Christopher Kurschner on December 26, 2008. Prior to questioning, Alsina informed Gloria of her Miranda*fn1 rights and told her "[y]ou don't have to answer my questions." He also asked Gloria to sign a Miranda form, summarizing in clear language that she possessed the "right to remain silent and refuse to answer any questions," "the right to talk to an attorney at any time and have him present with you while you are being questioned," the right to have an attorney "appointed to represent you" should "you [be unable to] afford to hire" one, and the right to "stop answering questions or request an attorney at any time." The form additionally reminded Gloria that anything she said "can and will be used against you in a court of law." Gloria initialed each point and signed the portion of the form indicating she had read and understood "the above statement of my rights and they have also been read aloud to me."
Throughout the interrogation, Gloria was reluctant to admit that the sexual encounter with Greg was consensual. In responding to the detectives' questions, she initially characterized herself as the victim and Greg as the aggressor in the sexual incident. Expressing his belief that she was not being truthful, Alsina repeatedly implored Gloria to tell the truth and "be honest." Gloria replied that she had "blocked out so much of this stuff, because it's painful." Alsina also recounted Greg's version of the event, which was that the sexual conduct was consensual, and explained that "we don't want to make a bigger story out of this than what it is. We don't want -- you coming to say [Greg] raped me, because I don't think that's what happened."
Approximately midway through the interrogation, Alsina told Gloria:
There [are] a lot of people that come in here and they tell me something, they said they were raped. And, you know what, I know they're full of shit, they're lying -- right away, they're lying. I had no reason to believe [Greg] was lying. Because his story is very consistent and it makes sense. I have reason to believe you're lying.
He also told Gloria, "You recall [what happened]. You just don't want to tell us." He continued, "Because maybe you're afraid of what's going to happen. And what I'm telling you is, that there is nothing that can't be resolved." Soon after, he insisted "you can't come here and -- and lie right in my face. A jury is not going to buy it." Minutes later, Alsina added,
I don't want to charge you today, okay, and put a $200,000 bail on you and sit [you] in the county jail, and go in as somebody that sexually assaulted her brother, because she wanted to do that. That's not what I'm looking for . . . . But I'm looking for the truth.
Alsina subsequently explained to Gloria that his role was to "find out the truth [and] . . . . present it to whatever system I have to, and they can decide from there." Alsina consistently told Gloria that he did not think she was a "bad person" and that she may have acted in "an hour of weakness."
When Gloria asked Alsina whether she had "a choice" about making a "stenographic statement," he responded, "[y]ou always have a choice. I mean, I read you your rights, you have a choice. I just want to let you know, those rights that I read to you before, they still apply. . . . You understand those rights, right?" Gloria gave no indication that she had not understood the detective's clarifying statements. She eventually admitted that her sexual encounter with Greg was consensual.
Gloria was indicted on June 17, 2009. In addition to the charges for which she was convicted, she was charged with one count of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a).
Gloria moved to suppress her statement. The trial judge held a hearing on the motion on November 9, 10, and 15, 2010. Defense counsel presented testimony from Alsina, Gloria's father, and an attorney whom Gloria's father had contacted but not retained prior to Alsina's interview of Gloria. Based upon the testimony adduced at the hearing and his review of the video, the judge denied the motion to suppress. He found that Gloria had waived her rights to remain silent and to have an attorney, and that her statement was given voluntarily. He further concluded that, under the totality of the circumstances, there was no "deception or trickery" and that Gloria's intermittent reluctance to answer questions was not the sort of "prolonged silence" that would necessitate the provision of fresh Miranda warnings.
The trial took place before a jury over five consecutive days, beginning November 15, 2010. Prior to opening statements, the prosecutor told the judge and defense counsel that he was inclined not to use Gloria's statement because, in part, he did not think he would need it and wanted to eliminate "a significant issue on appeal, should there be a conviction." It was his inclination "to proceed without admitting that statement in my case in chief[, although] I certainly reserve the right during the trial to change strategy and admit it later." The trial judge asked the prosecutor to clarify "that at this point you seem to be, again, leaning towards the fact that you don't want to use that statement, but you're not sure?" The prosecutor answered in the affirmative, but noted that "things [could] change after [Greg's] testimony."
On the following day, after both sides had presented their opening arguments without reference to the video statement and after Greg had begun his testimony, the prosecutor announced his intention to use Gloria's statement in his case in chief. In response, the judge said: "You said you weren't using it." Defense counsel objected to the prosecutor's change in position, arguing that the consequent "unfairness . . . [would be] insurmountable." He moved for a mistrial. After hearing each party's argument, the judge "denied the mistrial [motion]" and stated he was "not going to exclude the statement" or provide the jury with a potentially confusing curative instruction concerning defense counsel's failure to mention it during his opening statements. The video recording of Gloria's interrogation was played for the jury during the trial and again when the jury asked to see it during deliberations. The written statement was also marked into evidence.
The jury found Gloria guilty of two counts of aggravated sexual assault and one count of sexual assault, but not guilty of endangering the welfare of a child.
On June 10, 2011, the trial judge denied Gloria's motion for a new trial. He sentenced her to three concurrent terms of imprisonment for five years, subject to an eighty-five percent period of parole ineligibility, as well as five years parole supervision following release. In addition to imposing the required fines and penalties, the judge required Gloria to register as a sex offender pursuant to N.J.S.A. 2C:7-2 and imposed a special sentence of parole supervision for life pursuant to N.J.S.A. 2C:43-6.4(a). This appeal followed.
Gloria raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS DEFENDANT'S "CONFESSION."
A. Legal Standards Regarding
B. Defendant's "Confession" Was
Coerced POINT II: THE TRIAL COURT ERRED IN FAILING TO HOLD THE PROSECUTION TO ITS COMMITMENT TO USE DEFENDANT'S "CONFESSION" ONLY IF NEEDED FOR IMPEACHMENT, AND NOT TO INTRODUCE IT DURING ITS CASE IN CHIEF.
A. Case Law Supports Holding the
Prosecution to Evidential Bargains
B. The Prosecutor's Failure to
Honor His Commitment Not to Introduce Defendant's Statements Is Reversible Misconduct
C. The Trial Court Committed
Plain Reversible Error In Allowing the Videotaped Interrogation to be Played At Trial, and Re-played During Jury Deliberations Inclusive of its Prejudicial Commentary, and Without Excising Such Commentary or Providing a Cautionary Limiting Instruction to the Jury (Not Raised Below)
POINT III: DEFENDANT'S RIGHT TO A FAIR TRIAL WAS FURTHER PREJUDICED BY THE PROSECTION'S COMMENTS IN SUMMATION SUGGESTING EVIDENCE EXISTED OUTSIDE THE RECORD OF OTHER UNCHARGED SEXUAL CRIMES.
Gloria concedes that she was given her Miranda rights by Alsina at the beginning of the interrogation and that she voluntarily waived them. She argues, however, that the two-hour interrogation became so psychologically coercive that her statement admitting to consensual sexual conduct was not voluntary, and that the trial judge erred in refusing to suppress it.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted).]
If, however, the judge's decision on a motion to suppress a statement is based on the judge's review of a video of the interrogation, a reviewing court does not owe the same level of deference. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011).
Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that "constitutional rights have not been trampled upon." State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). Subject to provisions of Diaz-Bridges, supra, 208 N.J. at 565-66, with respect to the review of interrogation videos, we generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we ordinarily make conclusions regarding witness credibility, State v. Segars, 172 N.J. 481, 501 (2002). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of rights was "knowing, intelligent, and voluntary." Patton, supra, 362 N.J. Super. at 42. The trial judge must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and also may include consideration of "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).
Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).
A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession resulted from the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "the product of an essentially free and unconstrained choice" where the defendant's will has not been "overborne and his capacity for self-determination [has not been] critically impaired." State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.
Our review of the record, using the totality-of-the-circumstances standard, satisfies us that the trial judge's determination that the State had met its burden to prove voluntariness beyond a reasonable doubt was supported by substantial credible evidence in the record and consistent with applicable law. Our own review of the interrogation video, as required by Diaz-Bridges, supra, 208 N.J. at 565-66, leads us to the same conclusion.
Gloria was a college graduate at the time of the incident. Her questioners were persistent, but not hectoring. The room was small, but not so small that Gloria was physically overwhelmed by the two detectives. She and Alsina were seated at a table and Kurschner was not visible through most of the interrogation. The interrogation also was relatively short --under two hours. Like the defendant in State v. Cook, who delivered a voluntary confession after a nine-hour interrogation, at no time did Gloria "request to stop or ask for a lawyer," nor were there signs that she was "excessively tired" or "sleep deprived." State v. Cook, 179 N.J. 533, 563 (2004). Gloria did not mention any physical ailments or inconveniences during the session.
The police had been advised by DYFS that Gloria and Greg had engaged in sexual activity at a time when she was twenty-one and he was twelve. After interviewing Greg and reviewing the DYFS records, Alsina interviewed Gloria, who was given and acknowledged her Miranda warnings. She clearly understood those rights and agreed to answer questions.
At the beginning of the interrogation, Gloria maintained that she woke up, found Greg fondling her, and resisted his sexual advances but could not stop them until after he had engaged in oral sex and she finally managed to push him off. She denied touching his penis. In other words, she portrayed herself as the victim and Greg as the aggressor. Those allegations could have exposed Greg to serious charges even as a juvenile.
Based on his earlier investigation, particularly his interview of Greg, Alsina told Gloria that he believed that the sexual conduct had been consensual rather than the result of Greg's forcing himself on her. Alsina, and sometimes Kurschner, repeatedly challenged the truthfulness of Gloria's assertions and continued to press her for the truth. Their general approach was that what started as cuddling got out of hand and escalated into consensual sexual activity. The conduct was nevertheless criminal because Greg was twelve years old and could not legally engage in consensual sexual conduct with an adult. N.J.S.A. 2C:14-2(a)(1), -2(b).
As the interrogation continued, Gloria's narrative of the events changed, becoming less consistent with her earlier assertions that she was the victim of Greg's sexual aggression. Gloria eventually started saying that she did not "recall" events, such as putting Greg's hand down her pants or touching his penis, and then that they "could have" happened or "were possible." She eventually conceded that she had held Greg's penis, and abandoned her initial assertion that Greg had started fondling her while she was asleep.
There is no doubt that Alsina and Kurschner employed psychological techniques in interrogating Gloria, but that fact alone is not dispositive. Galloway, supra, 133 N.J. at 654-55.
They repeatedly urged Gloria to tell the truth, suggesting that for her to do so would be consistent with her profession of Christianity and would make her and members of her family feel better. Although we do not hold that an appeal to religious convictions can never be coercive, we do not see such coercion in this case, in which the references to religious conviction were brief and non-threatening. See State v. Saint, 284 S.W.3d 340, 345-46 (Tenn. Crim. App. 2008); State v. Newell, 132 P.3d 833, 844 (Ariz.), cert. denied, 549 U.S. 1056, 127 S. Ct. 663, 166 L. Ed. 2d 521 (2006). We find no basis to conclude that the incriminating statements made by Gloria were the result of the type of "very substantial psychological pressure" referred to in Galloway, supra, 133 N.J. at 656.
We also reject Gloria's assertion that Alsina's statements about telling the truth, resolving things, and not wanting to charge her that day led her to believe that she would not be charged if she admitted that the conduct was consensual. Alsina made it clear several times during the interrogation that Gloria would be charged, although not necessarily that day. In fact, he told her that he already had enough information to charge her prior to starting her interview. He told her that he would prefer to present her to the grand jury as someone who exercised bad judgment rather than someone who was a sexual predator.
However, there were no promises of leniency of the type that undercut the Miranda warning that statements made during questioning would be used against a defendant. See State v. Pillar, 359 N.J. Super. 249, 273 (App. Div.), certif. denied, 177 N.J. 572 (2003).
Consequently, we affirm the judge's denial of the motion to suppress.
Gloria next contends that the prosecutor "misled defense counsel regarding the proofs the State would be offering at trial" and that she was consequently deprived of a fair trial. Specifically, she argues the prosecutor reneged on his pre-trial commitment not to use the video of the interrogation or Gloria's signed statement as part of the State's case in chief. Gloria argues that her trial counsel would have mitigated the evidentiary force of her statement by addressing it in his opening statement, had he not been deceived by the prosecutor.*fn2
Prosecutors have a duty to refrain from employing "improper methods calculated to produce a wrongful conviction." State v. Wakefield, 190 N.J. 397, 436 (2007) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). Thus, prosecutors must "refrain from any conduct lacking in the essentials of fair play, and where . . . conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." Wakefield, supra, 190 N.J. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)). "[T]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of [her] defense." Id. at 438 (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
Although the prosecutor's decision to use the video and the
written statement surprised both the trial judge and defense counsel, there is no basis in the record to conclude that his conduct was "clearly and unmistakably improper," as required by Wakefield. The trial record is clear that the prosecutor advised the trial judge and defense counsel that he was leaning against using the video and the statement, but that he never represented that he would not do so under any circumstances. In fact, he consistently reserved the right to change his mind after he had heard Greg's testimony.
The fact that the prosecutor might change his mind and use the evidence at issue was well understood prior to opening statements.
[PROSECUTOR]: Now, I certainly reserve the right during the trial to change strategy and admit it later. The purpose of this is to advise counsel now, but it's several hours before the openings, at this point I don't intend to comment on [Gloria's] statements in front of the jury, I would advise counsel of the same, because if I don't admit it, anything that he says about it may end up not bearing fruition, so if I change my tactic by the openings, I will certainly advise counsel, but I'm intending, Judge, it's no secret here that should the defendant wish to testify, I then would, obviously, have that available to me to impeach her testimony.
[DEFENSE COUNSEL]: Judge, I just want to be clear on a few [things] before the opening. Is the State saying it's not going to use the statement in the case in chief at all? I just want to be sure. I understand he's not going to refer to it in his opening, but I would like a proffer of a witness I may have to confront as to what exactly his position is as to the statement. I understand that if I open the door up it may come in, but provided that -- are they not going to use it?
[PROSECUTOR]: Judge, I have no problem answering that question. I do not intend to refer to any portion of the defendant's statement in my opening. My first witness is [Greg], the victim. I have no intention of raising the specter of the confession nor statement with [him]. I reserve the right, once that portion of the State's case is done, to re-evaluate where we're at, and should I decide to then introduce it, I will so advise the Court and counsel. If counsel for whatever reason seems to predict that that's going to be a strain to him, my remedy for him is to recall the witness, which certainly [Greg] will make himself available for any recall, should additional evidence come in that counsel wasn't prepared at the first shot. So that's my response.
THE COURT: Well, I don't think there's anything that I could [do] . . . I guess it's part of trial strategy to use the statement or not use the statement. You [defense counsel] might want to make use of the statement. I don't think there's any means by which I can compel him definitively to commit to that. I guess if the witness in his estimation is testifying to the matter that he believes strengthens his case, he may not decide to use it, or he may decide to use it, so I'm not sure there's really an answer.
Prior to the end of Greg's testimony, the prosecutor duly notified the judge and defense counsel that he had, in fact, changed his mind and would be calling Alsina to introduce the video and the statement. When the trial judge expressed concern at his change in trial tactics, the prosecutor responded:
I did not do anything I didn't say I might do. . . . I said I reserve the right after the victim testifies to make that decision, and no one objected to that. And no one said you can't do that. No one said well, if you do that I'm going to suppress it. . . . I let everybody know that this is my strategy. I showed all my cards.
He subsequently explained that he believed Greg's testimony had not been as strong as he had expected it to be. Although the judge's impression of the testimony was otherwise,*fn3 he ultimately denied the defense motion for a mistrial.
We are unpersuaded by Gloria's argument that defense counsel would have been able to overcome the impact of the video and statement during his opening. During cross-examination and summation, defense counsel sought to persuade the jury that the incriminating statements made by Gloria were the result of coercion. For example, during summation, defense counsel "beg[ged]" the jury to "look at what happened [during Gloria's interrogation] and see is that credible evidence. Was that someone who was saying things after being worn down of her will[?]" Having viewed the video a second time after hearing that argument, the jury apparently reached the conclusion that the incriminating statements were not the result of coercion. As explained above, we have reached the same conclusion.
We also reject Gloria's argument that the judge should have granted a mistrial, an extraordinary remedy that should be used only to prevent a manifest injustice. State v. Winter, 96 N.J. 640, 647-48 (1984). The decision to grant or deny a motion for a mistrial is within the discretion of the trial judge. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Our scope of review of such a decision is limited to whether the trial court abused its discretion. Ibid. We see no such abuse of discretion.
Finally, Gloria argues, for the first time on appeal, that the judge should have redacted the video or given the jury a limiting instruction with respect to the accusatory statements made by Alsina and Kurschner during the interrogation. Because Gloria did not raise this issue before the trial judge, we apply the plain error standard, which requires reversal only if the error was "clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Once the judge denied the motion for the mistrial, defense counsel insisted that the video of the entire interrogation be shown to the jury, although he later agreed to fast forward through segments in which Gloria waited alone in the interview room. Inasmuch as defense counsel insisted that the videotaped interactions between Gloria and the two investigators should be shown in their entirety to the jury, the argument that portions of the video should have been redacted runs afoul of the invited-error doctrine.
Where a party "urged the [trial] court to adopt the proposition now alleged to be error," Brett v. Great Am. Rec., Inc., 144 N.J. 479, 503 (1996), we will not ordinarily review that party's claim. Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 2:10-2 (2013). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his [or her] chance on the outcome of the trial, and if unfavorable, then condemn the very procedure . . . sought and urged, claiming it to be error and prejudicial." State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). Ordinarily, to constitute "invited error," a party must have "urged," "beseech[ed]," "request[ed]," "induced" or "ask[ed] the court to take his [or her] proffered approach." Ibid.; Brett, supra, 144 N.J. at 503; State v. Corsaro, 107 N.J. 339, 345-46 (1987). That was certainly the case here.
The trial judge was not asked to give a limiting instruction concerning the accusations that Alsina and Kurschner made during the interrogation. Defense counsel actually used those accusations during summation as part of his argument that Gloria's incriminating statements were the result of coercion.
How many times does a young woman have to deny, deny, deny, and be told you're lying, you're lying, you're lying. Two hours. Listen to that. Listen to the one thing she says at one point in time after she said I don't want to answer the question. I told you, I told you. No, you didn't tell me the truth. [Gloria], I want to know the truth. What's the truth? She finally says whatever that is you say.
Highlighting the accusations was part of defense counsel's strategy underlying its insistence that the State, in presenting the video, show the jury the entirety of interactions between Gloria and Alsina, as well as Kurschner. Taken in that context, we see no basis to conclude that the judge's failure to give a limiting instruction sua sponte was "clearly capable of producing an unjust result."
Consequently, we find no reversible error with respect to the playing of the video or the introduction of the written statement.
Finally, we address Gloria's argument that the prosecutor acted improperly by suggesting in his closing argument that there had been other, uncharged improper sexual conduct involving Gloria and Greg.
The following portion of the State's summation is the focus of Gloria's argument:
And it wasn't one night, it was several nights. It was, in fact, over a week or two, and perhaps longer. And the relationship grew. Cooking together, tutoring him, driving him to his activities, as she says. There's a lot more to this story, ladies and gentlemen, than the night [in] June 2007. There's a lot going on between the two of them. Cuddling, not just the night in question, nights before that, cuddling, at her request, it was okay, that's what we do, we were family.
. . . And don't think for a second that because [Greg] initiated the contact on the night in question that somehow this is his fault. That would not be fair.
. . . So don't think for a second that this was just one night that just got caught and got out of hand. This was the culmination of days and weeks . . . .
Gloria argues that the preceding language invited the jury "to speculate that there was perhaps evidence, held back, that contradicted both [Gary] and [Gloria's] claims that no other improper [interaction] had gone on before, or after the one night in question."
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (internal quotation marks and citation omitted). In making our determination, we consider the State's summation as a whole. State v. Ingram, 196 N.J. 23, 43 (2008).
Defense counsel objected to the prosecutor's statements quoted above, and the judge overruled the objection. The prosecutor then continued his argument as follows:
[PROSECUTOR]: I submit, ladies and gentlemen, that the evidence shows that given their relationship, as that relationship grew in that short period of time, this was the culmination of what some may reasonably expect to occur when you put a 12 year old boy in bed with a 21 year old girl under these circumstances. And it should not be condoned, and I submit to you that under the law it is a crime.
And when she had the decision, when he made that move, she chose to continue. And that's when the episode began. It was lengthy. It was intimate. It was detailed in all of the actions that he participated in. In this case, ladies and gentlemen, [Greg] acted as you would expect a child to act. [Gloria] acted in a way you would expect an adult not to act. We expect grownups to protect children, even from themselves. And the law so orders. We proscribe and deter grownups from having sex with kids under 13, and we make it a crime if you so choose to do that. And that's what happened here. Grownups. Adults. And this defendant had a duty and an obligation to say no and stop. And she didn't.
The completion of the prosecutor's argument puts his earlier statements in context and undercuts the assertion that he was suggesting that there had been earlier, overtly sexual incidents.*fn4
During summation, a prosecutor "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Johnson, 120 N.J. 263, 296 (1990) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)). The evidence regarding cuddling between Gloria and Greg prior to their sexual encounter is found in Gloria's statement and Greg's trial testimony. When defense counsel renewed his objection after the end of the summation, the judge characterized the prosecutor's remarks as "a comment on evidence" intended to explain the development of the relationship between Gloria and Greg leading up to the encounter, not an argument that they had engaged in sexual acts at other times.
We agree with the judge's analysis. In our opinion, there was no misconduct and certainly no misconduct "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.
In summary, we hold that the trial judge did not err in denying the motion to suppress the statements given by Gloria, that he did not abuse his discretion in denying the motion for a mistrial after the prosecutor decided to use the video and written statement during his case in chief, and that the prosecutor did not engage in misconduct with respect to the use of the video and Gloria's written statement or with respect to his summation. For those reasons, we affirm the conviction on appeal.