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State v. Castro

Superior Court of New Jersey, Appellate Division

June 21, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JORGE CASTRO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2012

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0852.

Caruso & Diaz, LLC, attorneys for appellant (John D. Caruso, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

Before Judges Espinosa and Guadagno.

PER CURIAM

Defendant Jorge Castro appeals from his convictions for aggravated sexual assault and other offenses arising from an incident involving N.M., with whom he had an on-again, off-again relationship for approximately four years. For the reasons that follow, we affirm.

Defendant and N.M. cohabited at defendant's home in Pennsylvania from November 2006 to February 2007. N.M. testified that she "always wanted to leave but he would always dominate" her and that they had argued because he was seeing other women behind her back.

Defendant and N.M. continued to have contact with each other after N.M. moved out. On February 16, 2007, they had an argument and had consensual sex afterward. N.M. testified that she did not see defendant again until March 28, 2007. They continued to call each other. N.M. testified that defendant called and left messages from other women on her cell phone. Telephone records revealed that in March 2007, N.M. made fifty-three calls to defendant's cell phone. She stated that she called him because all her belongings were still at his house in Pennsylvania and he refused to return them. When defendant called her, she returned his call to tell him to stop calling if he was not going to return her belongings.

N.M. testified that, on March 28, 2007, she again told defendant to stop calling her. Telephone records showed that defendant called N.M that morning at work or on her cell phone at 9:14, 9:16, 9:31, 9:37, 9:47, 9:51, 9:59, 10:04 (twice), 10:05 (twice), 10:06, 10:07, 10:10, 11:42, 11:45, and 12:05 p.m. N.M. testified that, as a result of these calls, she felt ill and vomited and was permitted to leave work after 11:30 a.m.

N.M. returned home and prepared to take a shower. She heard someone knock on the door to her apartment, wrapped herself in a towel, and asked who was at the door. She opened the door slightly and saw defendant's shoes and New Jersey Transit uniform.[1]

Armando Santiago lived upstairs from N.M., but did not know her well. He testified that, on March 28, 2007, he came home for lunch and was opening the door when he saw defendant knocking on N.M's door. Santiago observed N.M open the door, peek out and hold the door with her right shoulder to keep it from opening completely. Santiago saw defendant put his left foot toward the door and used his left hand to hold the door open. Santiago testified that N.M. told defendant to "get out" and described her tone of voice as "like she wasn't expecting somebody and she got like scared at the same time."

N.M. testified that defendant asked her to "look at his face and to allow him to come in[.]" N.M. told him to "please leave [her] alone and to leave[, ]" but defendant "pushed the door" and entered the apartment. Defendant grabbed her by the back of the head, tried to kiss her, and bit her lips. She told him to leave her alone and to leave, that nothing was going to work out between them. Defendant told N.M. he wanted her to return to Pennsylvania with him. N.M. testified that she fought back, "[b]iting" and "hitting him." Her towel fell off in the struggle. N.M. called him a "monster." Defendant said that if she "didn't go back with him[, she] was not going to be with anyone, [and] that [she] was going to lose [her] daughters."

During the struggle, defendant broke a chain that N.M. was wearing around her neck. She fell down and hit her left knee. N.M. testified that during the "fighting" and "brawling, " they "got to the kitchen area." Defendant grabbed a bottle of wine, held it over N.M.'s mouth, and poured wine down her throat and onto his shirt.

Defendant started taking off his clothes, grabbed N.M., and pushed her into the bedroom while N.M. continued to hit him. N.M. testified that she pushed back against defendant as he was pushing her into the bedroom. He threw her onto the bed, causing her head to hit the wall. Defendant got on top of her. He was biting her breasts and penetrating her vagina with his fingers while N.M. continued to fight him. N.M. testified that it was painful and felt "[h]orrible" when he put his fingers into her vagina. "He was putting them in very hard, sort of like to hit [her], to make [her] feel pain." Defendant kept saying that they should get married. He also said they should break "that little card that the phone has[, ]" which, N.M. explained, meant he did not want her "to have any relationship with any of [her] friends, with anybody . . . at all." She told him "[t]hat it was too much, that he had had his chance[.]"

N.M. testified that, while they were fighting, defendant received a phone call. Although he did not answer the phone at first, she was able to escape to the kitchen, where she stood, shaking, by the sink. Still naked and "very afraid of him[, ]" she did not try to leave or call anyone.

N.M. testified that defendant grabbed her again and threw her on the mattress. He continued biting her and tried to tear her lip even more with his mouth. She stated that defendant penetrated her with his penis, then withdrew his penis, and rubbed it all over her and around her lips. He put his fingers into her vagina and ejaculated between her breasts. After defendant ejaculated, N.M. broke a chain he was wearing around his neck. Defendant then hit her below her left eye with his closed fist. N.M. testified that the blow was hard, causing the bruise to turn purple right away. Defendant got dressed, then hit N.M. and threw her on the ground before leaving with the chain from N.M.'s neck, as well as her anklet.

N.M. testified she got up and looked for her cell phone to make a call. When she could not find it, she got dressed and went to her car. N.M. put her car in reverse to exit her parking spot, and then in drive to go down the driveway. Defendant came down the alleyway and hit the front-end of her car with the front-end of his car. He opened the passenger door of his car and threw out N.M.'s phone. N.M. hit defendant's car twice as he was backing up "[t]o defend [herself]" because "[h]e want[ed] to kill [her]." N.M. drove towards North Broad Street and hit defendant's car again. N.M. returned to her apartment, where she tried to make a call, but her damaged phone no longer worked.

Police officers from both Hillside and Elizabeth responded to the scene.[2] N.M., who testified through an interpreter, said her English was worse at the time of the incident than it was at trial. Neither the Hillside officers nor the Elizabeth officers spoke to her in Spanish. She testified she told the Hillside officers that defendant tried to kill her in her car. When the Elizabeth police officers arrived, she said she was "so nervous" that she spoke in both English and Spanish but the officers only spoke English. She told them defendant "hit [her] car, that he had hit [her] inside the apartment, and that he wanted to make love but that [she] didn't want to." N.M. testified she did not know the English word for "rape" at the time. She also said there were "many men" and she was embarrassed to "tell in front of everybody everything [defendant] did to [her]." She also told the officers that she had intentionally rammed into defendant's car multiple times.

Elizabeth police officers Thomas O'Connor and Linda Lensch interviewed N.M. at her apartment. O'Connor testified N.M. was "visibly upset" and had "black eyes, visible swelling to her face, " the "swelling on the face around her eye was still red and swollen. It hadn't bruised up, didn't appear to be like an old injury where it was bruised up yet." Her wrist was also swollen. She was "distracted, . . . it would take her a minute to answer a question . . . [i]t just didn't seem like she was concentrating on us there talking to her." The officers spoke to her in English. She tried to answer in Spanish and spoke in broken English, saying she did not speak English well.

O'Connor testified that N.M. told them she had received two harassing phone calls at work that upset her from an ex-boyfriend, whom she identified as defendant. She took the rest of the day off and went home. O'Connor recounted what N.M. said occurred thereafter: she took a shower and heard a knock at the door. She answered the door in a large bath towel. Defendant tried to convince her to let him into the apartment to discuss their relationship. He attempted to enter; she tried to close the door but he was able to push it open. He proceeded to say he was sorry. N.M. told the officers she replied, "I'm tired of your abuse and leave me alone[.]" She said he entered the apartment, closed the door, grabbed a bottle of wine, and demanded she drink some. N.M. told them that defendant grabbed the towel, pushed her onto the bed, ripped off her necklace and anklet and laid on the bed next to her. N.M. told the officers defendant wanted to have sex with her; she said she did not want to have sex with him and that defendant then punched and slapped her. O'Connor interpreted her statement to mean that there had been domestic violence but no sex between N.M. and defendant.

Lensch also described N.M. as "very agitated[, ] . . . kind of panicking, breathing fast and walking around." She testified that, in the interview at N.M.'s apartment, N.M. spoke in "very broken English, heavily-accented, . . . she had difficulty speaking English." Lensch was only "somewhat" able to communicate with her.

At the police department, Lensch gathered domestic violence forms. She explained to N.M. that defendant would be charged with simple assault and released on bail. Lensch described N.M.'s reaction:

She became panicked and -- and again said but he -- he tried to make love to me. And I said what are you telling me? Because she kept saying that and she seemed afraid and agitated again. And I said did he have sex with you? And she said yes. . . . And I said did you give permission? . . . And she said no. And that's when I turned to Officer O'Connor and I said stop, we have something different here.

According to Lensch, the change in the officers' understanding was the product of the follow-up questions asked at headquarters rather than any change in N.M.'s statement. In fact, Lensch testified that N.M.'s story or words never changed.

O'Connor and Lensch took N.M. to Trinitas Hospital, where she was examined by Catherine Kinney, a SANE (Sex Assault Nurse Examiner) nurse. Kinney testified that a skin surface assessment revealed: a tear to N.M.'s lip, bruises to her cheek; redness, scratches, and bruises to her wrists and arms; a laceration to her right pinkie; bruises on her hips; redness on her shoulders; bite marks on both breasts; redness on right breast; bruises on inner thighs; and scratches and redness on right inner ankle. Kinney noted thirty injuries in total: nine on N.M.'s back and twenty on her front. Kinney testified that, based on her training and experience, the injuries appeared to be fresh, and the bruising appeared to be caused by force of some kind. A gynecological exam of N.M. revealed a lateral tear to N.M.'s vaginal wall, which Kinney testified would have been caused by force. Kinney further testified that based on her training and experience, the external injuries she observed, along with the tear in N.M.'s vaginal wall, were consistent with N.M.'s description of what happened to her.

In support of its case, the State called Detective Thomas J. Paret, an expert in the field of polygraph administration and interpretation. Paret conducted a polygraph examination of defendant in Spanish on July 23, 2007. Defendant stipulated, with advice of counsel, that the results would be admissible at trial. Prior to asking any questions, Paret advised defendant of his Miranda[3] rights and gave him a polygraph consent form. After defendant acknowledged his understanding of each and signed them, Paret began the pre-test interview.

Paret asked defendant his version of what happened. Defendant replied that he did not have sex with N.M. He told Paret that N.M. had made numerous calls to his cell phone and said she wanted to see him. He did not want to go but went over because "she had gone home sick from work and was complaining to him that she wanted to see him." Paret testified that defendant gave the following account of what occurred at N.M.'s apartment:

So when he arrived, . . . she came to the door in just a bathrobe and that she had wine and that she wanted to have sex with him and he was telling her that he didn't want to. At that point she became irate and threw wine on him. At that point he said he . . . left the house because he didn't want to get in a confrontation with her, [and] while he got in his car, she followed him and then . . . she rammed his car[.]

Paret conducted a five-question pre-test, or certified verification of sensitivity ("CVOS") exam, to familiarize defendant with the components of the polygraph. Paret formulated ten questions to be asked as part of the polygraph exam and conferred with defendant's attorney prior to reviewing those questions with defendant. The relevant questions asked of defendant during the polygraph were: (1) "[D]id you have sex with [N.M.] on March 28, [2007]?"; (2) "[W]ere you the person that had sex . . . with [N.M.] on . . . March 28, [2007]?"; and (3) "[O]n March 28, 2007 were you the person that had sex with [N.M.?]" Defendant responded "no" to each of those questions. After comparing defendant's answers to the relevant questions to his responses to the other questions, Paret concluded that defendant was being deceptive on the relevant questions.

Paret advised defendant's attorney that defendant failed the exam. Paret then returned to the exam room and explained the results to defendant. Defendant, again, insisted he did not have sex with N.M. that day. Paret testified that after he started reviewing the test results again, defendant stated he wanted to speak with his attorney, and the post-test interview ended.

In November 2007, approximately three months after the polygraph examination, Lynn McBride, supervisor of the New Jersey State Police DNA laboratory, compared dried secretions obtained from N.M. to a buccal swab obtained from defendant. McBride determined that defendant was the source of the DNA found in the dried secretions.

Defendant was indicted on the following charges: first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary in violation of N.J.S.A. 2C:18-2(b)(1) (count two); second-degree sexual assault in violation of N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact in violation of N.J.S.A. 2C:14-3(a) (count four); and fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3(b) (count five).

Defendant did not testify at trial. Defendant's attorney argued to the jury that defendant and N.M. had engaged in consensual sex. The testimony presented by the defense can be summarized as follows:

Kimberly L. Ashley, a mail carrier, testified that on March 28, 2007, she saw the collision between a black Chevy Bronco and a gray minivan, the vehicles driven by defendant and N.M., respectively. Both vehicles were being driven on North Broad Street going fifty-five to sixty miles per hour; they made a U-turn and returned, again at a high rate of speed, with the Bronco in front. The Bronco stopped behind Ashley's vehicle. The minivan crashed into it from behind and then backed up and took off.

Detective Cosimo Tripoli and Officer Steven B. Waters of the Hillside Police Department responded to the accident scene. After determining that the accident occurred in Elizabeth, Tripoli contacted his headquarters to notify Elizabeth. He noticed that defendant had some scratches and that his shirt was torn; defendant also appeared "a little excited . . . like he was in shock a little bit." He only observed N.M. briefly, escorting Emergency Services to her home. She was "crying . . . a little emotional" and spoke only Spanish. Tripoli did not have much contact with her but testified she did not make any allegation of sexual assault. Waters interviewed N.M. at her apartment. He testified that "it was very difficult because there was a language barrier." He used an unknown male at N.M.'s apartment as an interpreter. Waters testified that N.M. did not mention she had been sexually assaulted.

Katherine Rodriguez, an employee of the ambulance service for the Elizabeth Police Department, testified she was dispatched to the roll call room to see N.M. The purpose was to "listen to what the patient has got to say and just write whatever the patient says and whatever patient complains about." Rodriguez did not recall if she questioned N.M. in Spanish or in English. N.M. stated her boyfriend assaulted her with fists. The medical report did not indicate that rape was the cause of N.M.'s injuries.

Yolanda Aracena, a driver with New Jersey Transit, testified she knew defendant from her job and also knew N.M. Aracena carpooled with defendant to work from Pennsylvania. She stated that N.M. stopped residing with defendant in Pennsylvania in February 2007. She testified that she observed N.M. parked in defendant's driveway three times thereafter.

Kelly Fisher, the human resource manager where N.M. was employed, testified that N.M. worked there from September 2001 to October 2007 as a sales coworker in the "recovery as-is department." Fisher stated that this was not "just [a] Spanish speaking" position.

The jury found defendant guilty on all five counts. At sentencing in July 2009, the court merged counts two (second-degree burglary) and three (second-degree sexual assault) into count one (first-degree aggravated sexual assault), and count five (fourth-degree criminal sexual contact) into count four (third-degree aggravated criminal sexual contact). On count one, the court sentenced defendant to a fourteen-year term of imprisonment, with an eighty-five-percent period of parole ineligibility and parole supervision for life. On count four, the court sentenced defendant to a concurrent four-year term of imprisonment.

Defendant presents the following arguments for our consideration in this appeal:

POINT I
ERRORS ASSOCIATED WITH THE ADMISSION OF POLYGRAPH EVIDENCE DEPRIVED THE DEFENDANT OF A FAIR TRIAL [NOT RAISED BELOW]
A. THE POLYGRAPH RESULTS WERE IRRELEVANT AND UNDULY PREJUDICIAL AND THEIR ADMISSION TAINTED THE FAIRNESS OF THE TRIAL [NOT RAISED BELOW]
B. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE RESULTS OF A POLYGRAPH TEST WITHOUT FIRST DETERMINING THAT THE EVIDENCE WAS RELIABLE AT A PRE-TRIAL HEARING [NOT RAISED BELOW]
C. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO PRESENT IMPROPER EXPERT TESTIMONY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL [NOT RAISED BELOW]
POINT II
THE IMPROPER PRESENTATION OF EVIDENCE AND NONRECORD FACTS DEPRIVED THE DEFENDANT OF A FAIR TRIAL
A. INTRODUCING EVIDENCE THAT THE DEFENDANT INVOKED HIS RIGHT TO COUNSEL AFTER THE POLYGRPAH [SIC] EXPERT ADVISED HIM HE HAD FAILED THE POLYGRAPH EXAMINATION [NOT RAISED BELOW]
B. THE IMPROPER ADMISSION OF PRIOR CRIMES EVIDENCE THAT MR. CASTRO HAD ALLEGEDLY RAPED AND THREATENED THE VICTIM IN THE PAST WITHOUT ANY CAUTIONARY INSTRUCTIONS DEPRIVED MR. CASTRO OF A FAIR TRIAL [PARTIALLY RAISED BELOW]
C. ALLOWING THE VICTIM TO REFUSE TO PROVIDE HER PLACE OF EMPLOYMENT IN THE PRESENCE OF THE JURY AND THE COURT'S QUESTIONING OF THE VICTIM ON THIS ISSUE OPERATED AS A FINDING BY THE COURT THAT THE ACCUSED WAS, IN FACT, A DANGER TO THE VICTIM, POISONED THE IMPARTIALITY OF THE JURY, AND RESULTED IN AN UNFAIR TRIAL [NOT RAISED BELOW]
POINT III
MISCONDUCT IN TRIAL AND SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL [NOT RAISED BELOW]
A. THE PROSECUTOR'S PRESENTATION OF EVIDENCE AND COMMENTS IN SUMMATION CONCERNING MR. CASTRO'S POST-ARREST SILENCE AND FAILURE TO TESTIFY AT TRIAL VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION AND DEPRIVED HIM OF A FAIR TRIAL [NOT RAISED BELOW]
B. THE PROSECUTION IMPROPERLY REFERRED TO THE DEFENDANT'S FAILURE TO TESTIFY AND IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT DEPRIVING THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL [NOT RAISED BELOW]
C. THE STATE'S ARGUMENT TO THE JURY THAT DEFENSE COUNSEL HAD TO RELY ON THE DEFENSE OF CONSENT AT TRIAL BECAUSE "IT'S THE ONLY THING HE CAN SAY" SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO HAVE A JURY FAIRLY EVALUATE THE MERITS OF HIS DEFENSE AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL [NOT RAISED BELOW]
POINT IV
NUMEROUS ERRORS ASSOCIATED WITH THE COURT'S JURY INSTRUCTIONS IN THEIR AGGREGATE DEPRIVED THE DEFENDANT OF A FAIR TRIAL [PARTIALLY RAISED BELOW]
A. INSTRUCTIONS OMITTED AND NOT PROVIDED TO THE JURY
1. NO INSTRUCTIONS CONCERNING PERMISSIBLE USES OF THE DEFENDANT'S STATEMENTS
2. NO INSTRUCTIONS CONCERNING 404b PRIOR CRIMES EVIDENCE
B. ERRONEOUS, MISLEADING, OR INCORRECT INSTRUCTIONS
1. INCORRECTLY INSTRUCTING THE JURY IT COULD CONVICT DEFENDANT OF BURGLARY IF HIS INTENT WAS TO COMMIT AGGRAVATED SEXUAL ASSAULT WHEN HE ENTERED HER APARTMENT
2. LEAVING OUT CONSENT IN THE AGGRAVATED SEXUAL ASSAULT CHARGE
3. THE WRITTEN "SIMPLIFIED" SUPPLEMENTAL CHARGE WAS INACCURATE, INCOMPLETE, AND PREJUDICIAL TO THE DEFENDANT

After reviewing defendant's arguments in light of the record and applicable legal principles, we are satisfied that none have merit. Further, defendant has raised several arguments interspersed in the arguments raised in Points I, III, and IV, as well as the arguments raised in Point II, which lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore do not address those arguments.

I.

In Point I, defendant challenges the admission of polygraph evidence and Paret's expert testimony. Because these arguments are raised for the first time on appeal, we review them for plain error. R. 2:10-2.

The trial of this matter concluded shortly before the Supreme Court decided State v. A.O., 198 N.J. 69 (2009). In A.O., the Court "bar[red] the introduction of polygraph evidence based upon stipulations entered into without counsel." Id. at 90. Whether that ruling was retroactive or not is of no moment here because defendant stipulated to the polygraph examination with counsel. The Court declined to ban polygraph evidence altogether, but expressed its reservations about the reliability of such evidence and the danger that "potentially unreliable polygraph evidence may receive undue weight and distract jurors from judging the credibility of witnesses directly." Id. at 92; see also State v. Chen, 208 N.J. 307, 319 (2011). Concluding that it lacked a factual record to address the reliability of polygraph evidence, the Court stated,

However, a proper record will have to be developed in the trial court the next time a party seeks to introduce stipulated polygraph evidence, agreed to by both sides. That evidence should be introduced only if the parties can first establish its reliability at an N.J.R.E. 104 hearing.
[Ibid. (emphasis added).]

The Court's statement that a hearing on reliability would be required "the next time" plainly reflects an intention that its ruling be prospective. See State v. Mervilus, 418 N.J.Super. 138, 148 (App. Div. 2011). As a result, we conclude that the court did not err in admitting the polygraph evidence without conducting an N.J.R.E. 104 hearing.[4]

Defendant argues further that Paret's expert testimony was improper and prejudicial. He contends that, although the witness did not explicitly state an opinion as to the guilt or innocence of defendant, his testimony had the effect of doing so.

Paret was initially asked "how a polygraph works." He explained that, because telling the truth "becomes the norm" instilled in children, when one tells a lie, "it creates tension within the body[, ] . . . your automatic nervous system kicks in and it's something that you can't control." He then explained that there were involuntary and uncontrollable changes in blood pressure, respiration, and body heat, all of which were measured in a polygraph examination. Because the testimony depicted the physical manifestations of deception as involuntary, uncontrollable, and measurable by the polygraph examination, it had the capacity to persuade the jurors that the exam was infallible, a danger specifically recognized by the Court. See A.O., supra, 198 N.J. at 91-92.

The following exchange took place:

[PROSECUTOR]: Now is it fair to say that a lot of times that you conduct the polygraph examination the examinee has been -- is at least a suspect in something?
[PARET]: That's correct, sir.
[PROSECUTOR]: So if there is a bank robbery and there's a suspect who's absolutely innocent, he had nothing to do with the bank robbery and you ask the question[, "D]id you rob the bank[?]" . . . isn't he going to be nervous about that question . . . because there's so much at stake?
[PARET]: Well, by -- yes. There is going to be a level of nervousness. However, if they did not do it, they are going to pass the exam, and that's the way the test is conducted. My ultimate goal is to . . . ensure that the truthful person, that the person that did not commit the crime passes the exam.
[(Emphasis added).]

Detective Paret made additional comments that implicitly characterized the polygraph examination as a means of separating the guilty from the innocent. He discussed the need to establish rapport with an examinee "because ultimately no one's going to confess to what they did unless they really like you[, ]" and also said that, in the pre-interview, he advised examinees "that they're there to take the exam, to clear their name[.]"

In Mervilus, we reversed a defendant's conviction for robbery based upon improper expert testimony concerning polygraph evidence that was similar to that presented here. Mervilus, supra, 418 N.J. at 145-48. Like here, the challenges to such testimony in both A.O. and Mervilus were reviewed for plain error. A.O, supra, 198 N.J. at 79; Mervilus, supra, 418 N.J.Super. at 145. However, the evidence of the defendant's guilt in both those cases was not as compelling as was the case here.

In Mervilus, we said, "we cannot describe the State's evidence against defendant as overwhelming." Id. at 147. Identification was a significant issue in the robbery prosecution, which "hinged to a great degree" on the testimony of the victim, who could not identify the defendant in the courtroom and misidentified a spectator as one of the robbers. Ibid. A knife found bore no fingerprints. Ibid. Defendant testified, putting his credibility in issue. Ibid. We concluded that "improper polygraph testimony could have made a difference to the outcome." Ibid.

The defendant in A.O. was convicted of raping his girlfriend's ten-year-old daughter. A.O., supra, 198 N.J. at 73-74. The Court noted that the case "rested on the testimony of the accuser, with no medical or physical evidence to corroborate her words[.]" Id. at 74.

Plainly, N.M.'s testimony was central to the State's case against defendant. However, identification was not an issue and there was substantial corroboration of her accusation. Her neighbor, Santiago, testified that he observed defendant thrust his foot in the doorway to N.M.'s apartment and use his hand to keep the door open while N.M. struggled to keep the door from opening completely. He described N.M. as "scared." Although N.M. did not report the assault as a rape when initially interviewed by the police officers, Lensch testified that she was only "somewhat" able to communicate with her because N.M. spoke in "very broken English, heavily accented" and "had difficulty speaking English." Most significant, N.M. provided a detailed account of the sexual assault, including defendant's ejaculation on her chest and the pain experienced from his forceful digital penetration. The physical examination conducted by the SANE nurse revealed injuries that were consistent with her description of the assault and the DNA in the dried secretions obtained from her person matched that of defendant.

We are mindful that N.M.'s testimony was not impervious to attacks upon her credibility. But the record shows that defense counsel skillfully and aggressively pursued every vulnerability in her testimony and, in addition, presented witnesses to buttress the points he attempted to make in cross-examination. As a result, the jury had a full opportunity to assess N.M.'s credibility. Although Paret's opinion testimony was flawed by improper statements, we cannot say that it led to an unjust result in this case.

II.

In Point III, defendant argues that the prosecutor committed misconduct in posing certain questions during the trial and in comments made in summation that had the effect of improperly calling attention to defendant's post-arrest silence and failure to testify. Because there were no objections to any of these comments at trial, these challenges are subject to review for plain error. R. 2:10-2.

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.
State v. Timmendequas, 534 U.S. 858 122 S.Ct. 136

Prosecutors are "expected to make vigorous and forceful closing arguments to juries[, ]" State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor[.]" State v. Jenewicz, 193 N.J. 440, 471 (2008). In reviewing these comments, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Engel, 249 N.J.Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991).

The potential success of a defense of consent rested in no small measure upon the destruction of N.M.'s credibility, a goal vigorously pursued by defense counsel throughout the trial. In opening statement, cross-examination, and in summation, defense counsel portrayed her as a liar whose accusation was rooted in hatred and jealousy. A prominent point in this argument was the apparent inconsistency in statements N.M. made about the assault. The theme of counsel's opening statement was that she had given nine different "stories" about the event. In cross-examination, counsel pursued and coordinated several themes that supported the argument that N.M. was not credible. He questioned N.M. about her failures to: tell the Hillside police officers there had been a sexual assault; tell the ambulance crew that she was in pain from what she had described in court as a brutal assault; call the police for help when she was able to get away from defendant after the first sexual assault; and to report a prior alleged rape by defendant to the police. In all of these circumstances, it would be reasonable to expect that N.M. would have made the statements if true. And, if she had done so, those actions would have provided corroboration for her testimony. Counsel ably used her failure to do so to attack her credibility. In addition, to undermine her assertion that her English was poor, counsel questioned N.M. about the length of time she had been in the United States and her employment history. He called into question her claim she had been reluctant to divulge details of the sexual assault due to embarrassment by establishing that she had been trained as a nurse in her native country. He challenged her account that it was defendant who was the spurned and spiteful lover by showing that her telephone calls to him were far more numerous after the break-up and by having her admit that, on a prior occasion after they broke up, they had an argument that was followed by consensual sex. In short, the cross-examination skillfully attacked N.M.'s credibility.

Defense counsel continued this theme in his summation, beginning by saying, "it's time to hear the truth." He stated,

I will put together facts piece by piece that show[] not just her consent but also to the fact that she is a liar. [N.M.] has intentionally mislead [sic] you. Her stories don't make sense.

Counsel repeatedly referred to N.M. as a liar thereafter.

It is within this context that we review the challenges to the prosecutor's remarks.

Defendant made statements to the police at the scene and in a handwritten statement regarding the events after he was arrested for simple assault. In each statement, defendant said N.M. invited him to her apartment; she abused him and threw wine on him; and then rammed his car. He did not mention that he had sex with N.M. in either statement. Defendant argues that statements by the prosecutor noting this omission and stating there was no evidence to support the defense of consent constituted improper comment on his post-arrest silence and failure to testify. In addition, he contends the comments shifted the burden of proof to him. We disagree.

"When in custody, a suspect is privileged to say nothing at all to the police and is under no duty to give a statement[.]" State v. Muhammad, 182 N.J. 551, 567 (2005) (internal quotation marks omitted). "[W]e cannot know whether a suspect is acquiescing to the truth of an accusation or merely asserting his privilege, " and "have recognized that a likely explanation for a suspect's silence while under official interrogation or in custody may be that he is exercising his right to remain silent." Ibid. (internal quotation marks omitted). Therefore, we do not permit a jury to infer guilt from that silence." Ibid. Further, "[m]aking reference at trial to what a defendant did not say to the police is commenting on his silence." Id. at 566.

However, in State v. Tucker, 190 N.J. 183 (2007), the Supreme Court held that when a defendant does "not remain silent, but freely relate[s] different stories to the police[, ] . . . the State's pointing out of inconsistencies in defendant's statements and other evidence at trial [does] not constitute an unconstitutional comment on silence." Id. at 190; see also State v. Elkwisni, 190 N.J. 169, 179 (2007). Moreover, even though comment on a defendant's silence is prohibited, the prosecutor is not required to ignore inconsistencies between statements made by the defendant and the defense presented at trial. For example, in Muhammad, the Court found that the prosecutor had impermissibly asked a jury to reject a consent defense because defendant had elected to remain silent rather than tell police the victim had consented to have sex with him. Muhammad, supra, 182 N.J. at 566-67. However, the Court noted, "[t]he prosecutor was entitled to let the jury know that defendant's claim to the police that he picked [the victim] up for harassment stood in stark contrast to his attorney's trial argument of a consensual sexual encounter." Id. at 566.

The fact is, defendant did not remain silent, either before or after his arrest. When the police arrived to investigate the motor vehicle accident, he gave them an account of what transpired before N.M. crashed into his vehicle. After he was arrested for simple assault, he prepared a handwritten statement on a domestic violence form at police headquarters. And, although not noted in defendant's argument, he flatly denied having sex with N.M. at the July 2007 polygraph examination.[5]The defense of consent was not raised until after the State Police lab results were returned and revealed the presence of defendant's DNA in the dried secretions obtained from N.M. Under these circumstances, it was not improper for the prosecutor to comment on the inconsistency between the accounts defendant provided and the defense presented at trial, or on the lack of evidence to support a defense of consent.

III.

Finally, defendant argues that there were numerous errors in the instructions given to the jury. The trial court held an extensive charge conference with counsel on the record, reviewing the instruction to be given on each charge and soliciting requests for instructions. The only requests made by defense counsel were (1) that the court advise the jury that defendant denied committing any crime and asserted that the act was consensual and (2) a charge on self-defense. The court agreed to charge the jury that defendant maintained N.M. had consented to sex. The court declined to give a charge on self-defense and counsel did not make any objection either at the time of the ruling or after the charge was given. As defense counsel conceded, self-defense was not a defense to any of the charges in the indictment. The court did not commit error, let alone plain error, R. 2:10-2, in declining to give an instruction on self-defense.

Defendant also contends that the trial court committed plain error in failing to provide the jury with instructions on: the permissible use of his oral and written statements, his silence on the issue of consent, and Rule 404(b) prior crimes evidence. These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments. The court provided the jury with the Model Jury Charge (Criminal) "Statements of Defendant – Allegedly Made" (2004) after discussing its intent to give this charge during the charge conference and receiving no objection, either at the conference or following the charge. The court also provided the jury with Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2004). On cross-examination of N.M., defense counsel attempted to impeach the credibility of her accusation by eliciting N.M.'s testimony that she had previously claimed defendant had raped her but did not tell the police. Defense counsel made no request for an instruction on the defensive use of such evidence and did not object to its omission. None of these alleged errors had the clear capacity to cause an unjust result. R. 2:10-2.

Defendant also contends that the court's instruction on burglary constituted plain error. In defining burglary for the jury, the trial court defined the essential elements as:

[O]ne, that the defendant entered [N.M.'s apartment] without permission[.]
Two, that the defendant did so with the purpose to commit an offense therein.

The court explained that the unlawful purpose meant that "the defendant intended to commit an unlawful act inside the [apartment]." He then identified the unlawful acts alleged:

The unlawful acts alleged are set forth in the indictment, and they are aggravated sexual assault, . . . sexual assault, aggravated criminal sexual contact, or criminal sexual contact, any one of those four.
In addition to those four, you may consider the charge of harassment and also the charge of simple assault.

However, the charges of aggravated sexual assault and aggravated criminal sexual contact alleged in the indictment constituted "aggravated" offenses only if they were committed during the course of a burglary. See N.J.S.A. 2C:14-2(a)(3); N.J.S.A. 2C:14-3(a). We agree that the inclusion of aggravated sexual assault and aggravated criminal sexual contact among the unlawful purposes had the capacity to confuse. We are also mindful that "[c]lear and accurate instructions" are "an essential ingredient of a fair trial." State v. Feaster, 156 N.J. 1, 45 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001). However, the court discussed with counsel what offenses should be included in the list of unlawful acts and read the list that was included in the charge to the jury. There was no objection, either at the charge conference or following the charge. This argument is therefore subject to review for plain error. R. 2:10-2.

If the only predicate unlawful purposes identified were aggravated sexual assault and aggravated criminal sexual contact, defendant's argument would have some merit. However, the court also properly included sexual assault, criminal sexual contact, harassment and simple assault. At a minimum, there was overwhelming evidence that defendant committed a "simple assault" upon N.M., including the evidence of multiple contusions. Therefore, we discern no prejudice to defendant from the error in the instruction, let alone plain error. We have considered defendant's other challenges to the charge and are satisfied they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed


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