January 18, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Messano and Kennedy.
Following trial, the jury acquitted defendant J.M. of first-degree sexual assault of T.B., N.J.S.A. 2C:14-2(a), but convicted him of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was sentenced to eight years' imprisonment on the sexual assault, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. A concurrent five-year sentence was imposed on the endangering conviction.
On appeal, defendant raises the following points for our consideration:
REVERSAL IS REQUIRED DUE TO PROSECUTORIAL MISCONDUCT DURING SUMMATION, WHEN THE PROSECUTOR ARGUED THAT THE ALLEGED MINOR VICTIM'S UNWILLINGNESS TO ANSWER THE QUESTIONS OF DEFENSE COUNSEL ON CROSS-EXAMINATION SHOULD BE REGARDED BY THE JURY AS EVIDENCE THAT THE CHILD WAS AFRAID OF DEFENDANT, AND PERSONALLY VOUCHED FOR T.B. (Not Raised Below)
ALTHOUGH THE TRIAL JUDGE CORRECTED HIS EARLIER ERROR IN HIS CHARGE ON ENDANGERING THE WELFARE OF A CHILD, HE DID NOT TELL THE JURY TO DISREGARD THE ERRONEOUS CHARGE. (Not Raised Below)
REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I AND II, SUPRA. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We briefly set forth the evidence adduced at trial. During the time period alleged in the indictment, September 1 to 30, 2007, T.B. was an eight-year-old third-grader. In October, Jennifer Davis, T.B.'s teacher, observed the child's behavior change. T.B. would not engage in group activities even though she previously "was always very involved in classroom discussion." On the morning of October 11, 2007, Davis asked T.B. if everything was okay. The child did not respond. Davis told T.B. that if she "need[ed] to tell [her] anything, . . . [she was] here to listen."
Later that same afternoon, T.B. approached Davis to tell her something. T.B. said "that [her] Dad (defendant) had pulled down [her] pants." Davis brought T.B. to Colleen Kacerosky, the school's guidance counselor. While in Kacerosky's office, T.B. "became embarrassed[,] . . . started crying and [said] she didn't want to tell [them] what happened." Kacerosky handed T.B. a pencil and a piece of paper, and the child agreed to write down what had occurred. T.B. wrote, "[H]e liked my privid." Davis and Kacerosky called the police, the Division of Child Protection and Permanency*fn1 and the school principal.
T.B. testified uneasily before the jury. Now eleven years old, she was living with R.M., defendant's grandmother. T.B. repeatedly asked for her mother and wanted to leave the courtroom. Although she recalled speaking to "a policeman," and writing the reason she "was sad" for her teacher, T.B. was unwilling to describe any of the details regarding defendant's behavior. When she refused to answer any questions on cross-examination, the judge recessed the proceedings.
After the recess, T.B. continued to resist answering any questions. Continuing cross-examination after lunch, T.B. testified that she recalled telling her teacher "something about [her] father," which made her "sad" and "angry." T.B. admitted to sleepwalking, and that she told "a couple of people" what happened with her father may have been a dream. Defense counsel asked if "anybody else ever touch[ed] [her] in a bad way," to which T.B. answered no.
Investigator Scott Crocco of the Middlesex County Prosecutor's Office testified regarding the videotaped interview of T.B. he conducted on October 11, 2007. The State played the videotaped statement for the jury.*fn2 T.B. told Crocco that, on "a school night" in September, her father touched "her privates," licked her private area and tried to place her hand on his private area. T.B. told Crocco that she told R.M. about the incident. According to T.B., R.M. said it was a dream and that T.B. should not tell anyone because it would hurt the family.
Crocco also testified that S.B., T.B.'s mother, initially provided a statement, but, when Crocco discovered the recording equipment had malfunctioned and he needed to re-interview her, S.B. refused. R.M. also refused to cooperate with his investigation by providing a statement. The State then rested.
R.M. was called as a defense witness. She testified that T.B. told her "what happened with [defendant] could have been a dream"; R.M. denied instructing T.B. to say that it was "a dream." R.M. also denied telling T.B. that the allegation would "ruin the family." However, on cross-examination, R.M. acknowledged telling "Crocco . . . that [T.B.] admitted . . . her Daddy had touched her." The defense rested after R.M.'s testimony.
We consider the legal arguments defendant raises on appeal, specifically that the prosecutor committed misconduct during his summation, and the judge committed reversible error with respect to the jury charge.
It is axiomatic that "the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012). However, misconduct by the prosecutor, in and of itself, does not require reversal. "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). "Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they 'so infect the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)) (alteration in original).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84. With these principles in mind, we turn to defendant's specific claims of prosecutorial misconduct in summation.
During his closing argument, the prosecutor said:
And here's another thing I'd like you to think about. [T.B.] wasn't very open and willing to answer questions to me. But when the defendant's lawyer wanted to ask her questions, she didn't want to answer anything, did she? Why is that? Is it because she's here with some agenda or is it because she doesn't want to answer questions from the person sitting next to the person who hurt her? Does that make sense to you? Why answer my questions and not hers? She walked in here, she pointed out who the defendant was, the person who made her sad, the person who made her a victim. Why wouldn't she want to answer the questions from the defendant's lawyer? That's why the people - the witnesses in this case come in and answer questions in front of you.
And as I said in opening statements, don't check your common sense at the door when you come in here. Is there a reason why she would answer my questions and not [defense counsel's]?
Defendant contends these comments "intrench[ed] on [his] right to confrontation and cross-examination."
We agree that it was improper for the prosecutor to suggest the jury infer that T.B.'s reluctance to answer defense counsel's questions was the result of her fear of defendant. As the prosecutor himself noted, T.B. was a reluctant witness from the start. Moreover, the comments implied that defense counsel, who was exercising defendant's Constitutional right to cross-examine his accuser, somehow invoked fear in the child simply because she was sitting next to defendant. Nonetheless, there was no objection, the comments were fleeting and we are confident that they did not deny defendant a fair trial.
Later in summation, the prosecutor said:
[Defense counsel] mentioned in her summation about [T.B.] saying that this was all a dream and . . . something about the grandfather sleeping in the room. Her interpretation of the facts and her memory of what the facts are isn't what counts. It's what you folks collectively as a group remembers [sic] was said and remember what the testimony was. And I would submit to you that I don't believe either of those things is accurate. It's up for you to decide.]
Defendant contends that, with these comments, the prosecutor was vouching for the credibility of T.B. We disagree because it is clear that the comment referenced defense counsel's summation, not T.B.'s testimony. It is well-recognized that the prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006). We find no reason to reverse defendant's conviction based upon the prosecutor's summation.
Defendant also argues that the judge committed reversible error while charging the jury. Specifically, in providing instructions on endangering the welfare of a child, the judge stated:
To find [defendant] guilty of the crime, the State must prove beyond a reasonable doubt these elements: One, that T.B. was a child. Two, that the defendant knowingly engaged in sexual conduct. And, three, the defendant knew that such conduct would impair or debauch the morals of a child. Or that the defendant had a legal duty for the care of the child or had assumed responsibility for the care of the child. [(Emphasis added).]
Although this tracked the model jury charge, the judge misspoke by using the disjunctive "or" instead of the conjunctive "and," since what followed was the necessary fourth element of the crime. Immediately after the charge was completed, the prosecutor brought this error to the judge's attention at sidebar. The judge decided, without objection from defense counsel, to re-read the entire charge.
Before us, defendant contends the judge erred in not specifically instructing the jury to disregard his earlier charge. That argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). It suffices to say that the jury was properly instructed before it began its deliberations. There was no error committed, much less plain error, i.e., error that was "clearly capable of producing an unjust result." R. 2:10-2.