June 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
PEDRO PERALTA-PENA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1169.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Defendant Pedro Peralta-Pena appeals from a June 29, 2010 judgment of conviction, entered after a jury found him guilty of fourth-degree sexual contact, N.J.S.A. 2C:14-3b, and third- degree child endangering, N.J.S.A. 2C:24-4a. For the reasons that follow, we reverse and remand for a new trial.
According to the State's proofs, on December 19, 2008, defendant, who was twenty-one years old, received a telephone call from fourteen-year-old Jane,  who invited him to come over to her house. She told him that she was "bored" and that she was alone. At the time, Jane's father was at work and her mother had gone to the hospital because she felt sick. That afternoon, Jane's father came home from work early and caught defendant hiding in the bathroom. According to Jane's father, he confronted defendant, who admitted that he had been kissing Jane, and that he had placed his hand on her breasts and vagina.
Jane's father called the police and upon arrival, he told the responding officer what defendant had told him. At this point, the officer proceeded to question defendant, who, according to the officer, repeated the same admissions before receiving Miranda warnings. The day before trial began, the judge suppressed defendant's statements to the police based upon the failure to provide Miranda warnings.
At trial, Jane's father testified about defendant's admission of breast and vaginal touching. Jane testified that she and defendant had been kissing but she did not recall him touching her breasts or private parts. The State also presented the testimony of the police officer who responded to the call following a report of "a sex crime" involving a child. The officer testified that he interviewed Jane and her father. Based upon the judge's suppression of defendant's statements, the officer was not asked if he questioned defendant, nor did the officer mention any discussions with him. Defendant did not testify. Thus, the case hinged on the accuracy and credibility of Jane's father's testimony, because Jane's testimony did not support the State's case.
During her summation, the prosecutor reviewed Jane's father's testimony:
He got on the witness stand and made it clear to you that he didn't see any conduct that day. He made clear to you that defendant was hiding in the bathtub.
In fact, [Jane's father] was more generous than most fathers would be with the defendant, and I believe that came across in his testimony. I submit to you that [Jane's father's] testimony is credible. This defendant admitted to him that he had been kissing his [fourteen]-year-old daughter. He admitted that he touched her on the breast. He admitted that he touched her in her intimate parts, the vagina.
Toward the end of her closing, the prosecutor attempted to summarize the evidence against defendant:
Members of the jury, unlike a robbery or an assault where there may be an eyewitness, this is a sexual offense, an offense that happens behind closed doors; an offense that happens in private. You have the defendant's own words that put him there. You have the father . . . telling you that he's hiding in the bathtub. Ladies and gentlemen, ask yourselves, why, why was he hiding in the bathtub?
This is a circumstantial case. There are not going to be eye witnesses. [Jane] told you her mom had gone to the hospital, she wasn't feeling well, and dad was at work. No eyewitnesses. The defendant's own admissions, the fact that he was in the bathtub, the fact that they were kissing, the fact that he admitted to the police that he touched her breast.
Defense counsel immediately objected; however, the trial judge apparently did not hear the prosecutor's improper reference to defendant's admissions to the police, and responded, "Overruled. Continue." While the prosecutor did not make any further references to defendant's statement to the police, she did not withdraw or otherwise correct her improper statement. At the conclusion of the prosecutor's summation, the judge proceeded to charge the jury, apparently still unaware of the prosecutor's error.
While the trial judge apparently did not hear the prosecutor's improper reference to defendant's admission to the police, there can be little doubt that the jury heard it, and appreciated its significance. Within minutes of beginning their deliberations, the jury sent the judge a note asking, "May we have a copy of the transcript of the police officer's testimony?"
At that point, the trial court realized the errors regarding the prosecutor's summation and the failure to sustain defense counsel's objection. After explaining to the jury that he would have the audio tape of the officer's testimony replayed for them, the judge told the jury
Before I do that, though, let me tell you one thing -- my mistake, I forgot to do this.
During the course of the prosecutor's statement she may have said that the defendant admitted to the police to the touching. She didn't mean to say that. That was a mistake. I believe her omission[, what] she meant to say was[, ] he admitted to her father. There was no admission to the police. Everyone is clear on that; no one disputes that.
The jury continued their deliberations and returned a verdict of guilty as to both charges. This appeal followed with defendant presenting the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A DIRECTED VERDICT BECAUSE THE STATE FAILED TO PROVIDE CORROBORATION OF HIS CONFESSION.
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON THE UNRELIABLE NATURE OF THE ORAL STATEMENTS ALLEGED TO HAVE BEEN MADE BY DEFENDANT CONSTITUTES REVERSIBLE ERROR. (NOT RAISED BELOW).
THE PROSECUTOR'S REFERENCE TO A SUPPRESSED CONFESSION IN HER SUMMATION CONSTITUTED REVERSIBLE PROSECUTORIAL MISCONDUCT AND THE TRIAL JUDGE'S FAILURE TO CURE THIS ERROR DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A. The Prosecutor's Egregious Misconduct In Revealing [Defendant's] Suppressed Confession To The Jury During Her Summation Warrants Reversal.
B. The Trial Judge's Decision To Overrule Defense Counsel's Objection Without Discussion, Precluded Both A Request For An Immediate Instruction To Disregard The Prosecutor's Remark And A Motion For A Mistrial.
C. The Trial Judge's Instruction To The Jury Was Insufficient To Cure The Error Because It Was Not Given Contemporaneous To The Prosecutor's Statement, Was Given After Deliberations Had Already Begun, And Failed To Require The Jury To Begin Their Deliberations Anew.
We conclude that defendant's Point I lacks merit; however, we are convinced that there is sufficient merit to the arguments raised under Points II and III to warrant a new trial, as the errors and omissions at trial were "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors "are duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." Id . at 85. "In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, [the courts] consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing
State v Bogen , 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350 (1953)).
"Prompt and effective" instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony. 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). Whether or not a curative instruction can eliminate the danger of such an error "focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). "Nevertheless, . . . there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, 485 (1968).
Here, defense counsel made a timely and proper objection to the prosecutor's errant statement. The prosecutor failed to withdraw the statement. The judge failed to immediately order the remark stricken from the record and instruct the jury to disregard it. Instead, the judge overruled the objection and instructed the prosecutor to "continue." Unfortunately, this exchange served to magnify and reinforce the prosecutor's statement that defendant had confessed to the police.
After the jury began its deliberations, the judge issued a belated instruction to disregard the prosecutor's misstatement. We conclude that the judge's delayed curative instruction was not adequate to ameliorate the significant prejudice that resulted from the prosecutor's improper remarks. We lack confidence that the jury followed the delayed curative instruction as given. Cf. State v. Papasavvas, 163 N.J. 565, 614 (2000) (holding a judge's immediate curative instructions were sufficient to remedy improper testimony).
Our Supreme Court has cautioned against reliance on the harmless error doctrine to excuse errors dealing with fundamental procedural safeguards:
"[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971). . . . As stated in State v. Simon, 79 N.J. 191, 206, (1979): "Errors impacting directly upon . . . sensitive areas of a criminal trial are poor candidates for rehabilitation under the harmless error philosophy . . . ." For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards "designed to assure a fair trial." (Citations omitted).
State v. G.V.
162 N.J. 252
Applying these principles, we conclude the cumulative effect of what transpired —— the prosecutor's improper disclosure that defendant confessed to police, combined with the trial court overruling defense counsel's timely objection and the substantial delay in delivering a curative instruction —— was "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Nero, 195 N.J. 397, 409 (2008). Defendant's confession was not just an important issue in the case; once Jane testified, the confession became the central issue in the case. As such, we cannot agree with the State's contention that the improper disclosure of defendant's suppressed confession was harmless error; to the contrary, we are satisfied that it may well have been the decisive factor which resulted in the guilty verdict.
We also agree with defendant's contention that the trial judge should have charged the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957), regarding the credibility of the out-of-court inculpatory oral statements allegedly made by defendant to Jane's father.
A trial court should provide a "Kociolek" charge whenever a witness at trial testifies regarding oral statements made by a defendant. Id . at 421 (internal quotation marks omitted). In such cases, the trial judge should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Ibid. (internal quotation marks omitted). "[T]he Kociolek charge should be given whether requested or not." State v. Jordan, 147 N.J. 409, 428 (1997).
In addition, a trial court should provide a "Hampton" charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not[.]" Id . at 425 (referencing Hampton, supra, 61 N.J. at 272). A jury "'shall be instructed that they should decide whether . . . the defendant's [statement] is true, '" and if they conclude that it is "'not true, then they must . . . disregard it for purposes of discharging their function as fact finders on the ultimate issue of guilt or innocence.'" Ibid. (quoting Hampton, supra, 61 N.J. at 272).
As noted, the Court in Jordan underscored the need for Hampton and Kociolek instructions, in addition to the general credibility charge, by holding that the jury should be so charged even if a defendant makes no such request. Jordan, supra, 147 N.J. at 425. While the Court stopped short of holding that failure to provide Hampton and Kociolek charges constitutes reversible error per se, it emphasized that "their omission imposes a significant burden on the State to demonstrate that such an error is not plain error." Id . at 430.
In this case, defendant's alleged confession to Jane's father was critical to the State's case because it was the only evidence presented to establish that defendant touched Jane improperly. During direct examination, Jane testified that she did not remember any improper touching by defendant. Jane's father required an interpreter to testify during trial. He had never met defendant before and the record does not indicate whether they spoke in English or Spanish. Given Jane's father's need for an interpreter, the possibility of miscommunication was certainly present. As noted in Jordan, "'verbal precision is of course important to the correct understanding of any verbal utterance, whether written or oral, because the presence or absence or change of a single word may substantially alter the true meaning of even the shortest sentence.'" Id . at 421 (quoting Kociolek, supra, 23 N.J. at 421-22).
Accurate and understandable jury instructions are essential to ensure a fair criminal trial and the trial court has "an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). In examining jury charges, the reviewing court must look at the instructions as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). We also evaluate an alleged error in view of the "overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Applying these standards, we conclude the erroneous charge contributed to the denial of a fair trial. Even if the prosecutor's error in summation was not sufficient by itself to warrant reversal when coupled with the court's error in failing to provide the jury proper instructions in accordance with Hampton and Kociolek the two errors clearly constituted cumulative error warranting a new trial Errors that may be harmless when considered separately may together result in sufficient prejudice to violate a defendant's right to due process of law See State v Jenewicz 193 N.J. 440 473-74 (2008) (holding that errors' cumulative impact prejudiced the fairness of defendant's trial and therefore cast doubt on the propriety of the jury verdict); State v Koskovich 168 N.J. 448 540 (2001) (holding that cumulative error warranted reversal regardless of the fact that no individual error warranted reversal)
Reversed and remanded for a new trial