October 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1483.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Fuentes and Fasciale.
Defendant appeals from his convictions for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. We affirm.
The State charged defendant with committing these sex-related offenses against his prepubescent daughters, J.P. and C.A., with whom he and their mother lived during the relevant time frame. The judge conducted a jury trial on five days between May 2010 and June 2010.
C.A. testified that defendant placed his penis into her vagina on approximately six or seven occasions when she was tenor eleven-years-old. She explained to the jury that on the first occasion they played hide-and-seek, he took her into his bedroom, and then defendant removed her pants and underwear and performed the act. She testified that "he got on top of me and started humping me." The other incidents occurred in the home too. She stated at trial that defendant directed her not to tell anyone and offered her money to keep the sexual abuse a secret. C.A. testified, without objection, that defendant drank beer when he performed some of the acts.
The mother testified that C.A. reported the sexual abuse to her in 2007 or 2008 and that the defendant denied any wrongdoing. In May 2009, when C.A. was twelve
-years -old, she reported the incidents to her school guidance counselor. The guidance counselor notified the Division of Youth and Family Services (DYFS),  which then placed C.A. and J.P. in various foster homes until they were reunited with their mother shortly before the trial commenced.
J.P. testified that defendant inserted his penis into her vagina when she was seven
-years -old and repeated this conduct three times per week until she was approximately ten - or eleven -years -old. J.P. explained that most of the acts occurred in her parents' bedroom, where defendant directed her to remove her pants and underwear, but that defendant also performed these acts in a bathroom at a construction site where he had worked. J.P. also provided to the jury details of the sexual abuse. She testified that he used a condom and "moved back and forth, " which caused her physical pain. J.P. told a friend from school about the sexual abuse during the time frame when defendant was performing the acts; J.P. informed her mother about what had occurred after her mother learned that defendant had been sexually assaulting C.A.
The State called Lynn Taska, Ph.D., a psychologist with expertise in child sexual abuse, to testify regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Taska described five behavioral patterns associated with victims of child sexual abuse, beginning with secrecy. She indicated that in many cases, children are bribed to remain silent about the abuse. Regarding the entrapment and accommodation behavioral characteristic, the doctor testified that children who are sexually abused adapt to the circumstances by being depressed and through self-destructive conduct, such as "cutting themselves." The State used Dr. Taska's testimony concerning the children's behavior to the victims, in part, to support the testimony of the State's Medical Examiner, Lesley Ann Elton, M.D.
Dr. Elton, the State's medical expert who specializes in sexual abuse, examined C.A. and J.P. in July 2009. As part of the examinations, Dr. Elton obtained the children's account about what defendant had allegedly done to them. The girls' description to the doctor of the sexual abuse they allegedly endured from defendant corroborated their trial testimony. Dr. Elton testified that J.P. described for her a history of "depression and . . . cutting herself." After performing the examinations, the doctor saw no indication of trauma, but stated that
[e]vidence of penetration . . . in a child, is a rather unusual . . . . We actually only see evidence of trauma in about four percent of the children that we examine. There are a lot of reasons why we don't see evidence of trauma when we do these genital examinations of girls . . . . [I]t is very much related to the anatomy of the female genitalia.
Dr. Elton then explained that if the examination of the child is more than seventy-two hours from the sexual abuse, it is "more difficult" to detect evidence of trauma and two weeks after sexual abuse it is "very unlikely" that physical injury will be detected. Here, the doctor performed the examinations well beyond two weeks after the acts, and observed no evidence of trauma.
Detective Joanne Son, testified that she brought defendant to an interview room to obtain a statement, read him his Mirandarights, and then advised him that she would arrest him after they spoke. When defendant stated that he wanted a lawyer, Detective Son immediately stopped the interrogation, and left the room briefly. When she returned, she told defendant that because he had invoked his right to counsel, she could not hear "his side of the story" and was required to return him to a cell. The investigator testified that "[defendant then stated voluntarily to me] that he had a drinking problem. That he knows he didn't do anything [wrong], but [that] he can't control himself with drinking."
The mother testified that she was approximately fifteen
-years -old when she met defendant, they began dating, and then they had J.P., C.A., and S.A., Jr., together. The mother indicated that she confronted defendant after she learned about sexual abuse from C.A., but that he denied any wrongdoing. On cross-examination, she testified that defendant was unable to go to work sometimes because he was too drunk the previous night.
Defendant testified, through the use of a Spanish interpreter,  that he worked as a landscaper six days per week from approximately 6:30 a.m. to 7:00 p.m. He explained that he never missed work as a result of being hung over, and testified in general that it was "very rare" that he missed going to work. Defendant testified that he did not spend time alone with the victims and never played hide-and-seek with them. Defendant called five character witnesses, who testified that he was truthful, respectful, and honest.
The jury rejected the testimony from defendant and his character witnesses and found him guilty of committing these offenses. The judge imposed an aggregate thirty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole supervision for life (PSL), and Megan's Law, N.J.S.A. 2C:7-1 to -23. This appeal followed.
On appeal, defendant raises the following points:
[DEFENDANT'S] RIGHT TO A FAIR TRIAL WAS OBLITERATED WHEN THE PROSECUTOR ASKED THE CHILD-VICTIMS' MOTHER A SERIES OF QUESTIONS WHICH IMPROPERLY SUGGESTED THAT SHE, TOO, HAD BEEN A VICTIM OF SEXUAL ASSAULT AT THE HANDS OF [DEFENDANT]. (Not Raised Below).
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE THE STATEMENT [DEFENDANT] MADE TO DETECTIVE SON BECAUSE SON FAILED TO SCRUPULOUSLY HONOR [DEFENDANT'S] UNEQUIVOCAL ASSERTION OF HIS RIGHT TO COUNSEL.
THE TRIAL COURT ERRED IN ADMITTING [DEFENDANT'S] STATEMENT INTO EVIDENCE BECAUSE ITS MINIMAL PROBATIVE VALUE WAS OUTWEIGHED BY ITS POTENTIAL TO CAUSE SERIOUS PREJUDICE. ALTERNATIVELY, THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE PERMISSIBLE AND IMPERMISSBLE USES OF THE STATEMENT. THE PROSECUTOR EXPLOITED THE ABSENCE OF A LIMITING INSTRUCTION BY IMPROPERLY ENCOURAGING THE JURY TO CONSIDER [DEFENDANT'S] ADMISSION THAT HE HAD A DRINKING PROBLEM AS "CONSCIOUSNESS OF GUILT" AS TO THE SEXUAL ASSUALTS. (Partially Raised Below).
THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO ENGAGE IN IMPROPER CROSS-EXAMINATION OF [DEFENDANT'S] CHARACTER WITNESSES. (Partially Raised Below).
THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE THAT ONE OF THE CHILD-VICTIMS SUFFERED FROM DEPRESSION, HAD A HISTORY OF CUTTING HERSELF, AND WAS UNDER THE CARE OF A PSYCHOTHERAPIST. (Not Raised Below).
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED AT [DEFENDANT'S] TRIAL WARRANTS REVERSAL.
THE RECORD DID NOT SUPPORT THE JUDGE'S DECISION TO IMPOSE AN AGGREGATE PRISON TERM OF THIRTY YEARS.
We begin by addressing defendant's contention that the judge erred by introducing into evidence his statement to the Prosecutor's investigator that he had a drinking problem that prevented him from controlling himself. Defendant maintains that this statement, which he voluntarily made to the investigator knowing that he was immediately about to be arrested, was irrelevant and substantially more prejudicial than probative. Defendant argues, alternatively, that the investigator goaded him into making the statement after he invoked his right to counsel, the judge failed to give the jury a limited instruction, and the assistant prosecutor made improper remarks in her summation about the statement.
We review evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment, " we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). Against this standard, we conclude the trial judge properly exercised his discretionary authority and his analysis did not amount to "a clear error of judgment." Ibid.
The judge conducted a N.J.R.E. 104(a) hearing to determine whether to admit into evidence defendant's statement. At the proceeding, the parties agreed that defendant made the following statement to the Prosecutor's investigator:
The only thing [that] I can tell you, you know, whatever, like I told him, I have a drinking problem. That's the only thing [that] I can tell you. But I know [that] I haven't done anything. It's just [that] I can't control myself with drinking.
The assistant prosecutor argued that the statement was relevant for two reasons: to show that defendant had an opportunity to commit the acts in the home because he was too drunk to go to work; and as an admission that defendant's drinking problem prevented him from stopping himself from performing the sexual abuse. The judge stated that
[n]ot only is the drinking relevant to whether or not he committed the [sexual] assault, but [it's] also corroborative . . . of [C.A.'s] statement that [defendant] was home on days you would ordinarily think [that] he was working, [because] he was drunk.
We agree with Judge Paul DePascale's analysis and ultimate conclusion. Defendant's admission to the investigator that he has a drinking problem is relevant to corroborate the testimony from C.A. and the mother. C.A. testified that defendant drank beer and performed the acts on her in the home. On cross-examination, the mother testified that there were days when defendant was unable to go to work because he was too drunk the night before, an assertion that defendant denied at trial. Defendant testified that he was not home alone with the girls, and he denied drinking at home during his work week. Thus, it was up to the jury to decide whether defendant's admitted drinking problem placed him in the home where he would have had an opportunity to commit the acts.
Defendant's statement to the investigator that he was unable to "control [himself] with drinking" is also relevant because the jury could have reasonably viewed such a statement as an attempt by defendant to explain or justify his culpability. As Judge DePascale recognized, this statement can be considered to determine whether defendant committed the sexual abuse. A reasonable juror may infer culpability from the context in which he made the statement. The investigator testified that she escorted defendant into a room to take his statement, and told him that he would be arrested after they completed their conversation. At was at this point that he stated to her that he was unable to "control himself with [his] drinking." On cross-examination, defendant testified without objection that he did drink alcohol to the point where he was unable to control himself on "a few occasions." Defendant testified at trial that he did not remember telling the investigator that he had a drinking problem, but at trial he defined "problem" as having a fight. He testified that on the "few occasions" when he was unable to control himself because of his drinking, he would end up going to sleep. It was up to the jury to decide whether defendant's admitted drinking problem prevented him from controlling himself with the victims.
Moreover, evidence of defendant's drinking problem is relevant to impeach the testimony of his character witnesses. Defendant called several witnesses who testified, pursuant to N.J.R.E. 404(a)(1) and N.J.R.E. 405, that they had known defendant for many years and that he had a reputation for being truthful, respectful, and honest. On cross-examination, the assistant prosecutor demonstrated that defendant's character witnesses were unaware of his drinking problem. Thus, pursuant to N.J.R.E. 607, the assistant prosecutor undermined the weight of their testimony by showing that they did not know defendant as well as they testified they did.
Next, we reject defendant's alternative contentions that the investigator goaded him into making the incriminating statement, the judge failed to give the jury a limited instruction, and the assistant prosecutor committed prosecutorial misconduct.
The record shows the investigator did not goad defendant into making the statement after he asked for counsel by telling him that she could not hear his side of the story and was required to return him to a cell. In this case, we watched and listened to the same video/audio recording that Judge DePascale saw and heard. This record shows the exchange between the investigator and defendant at the Prosecutor's detention site. At the N.J.R.E. 104(a) hearing, the investigator testified that defendant invoked his right to counsel while she was reading him his Miranda rights. The record shows that the investigator then left the room briefly and returned a few minutes later. The investigator testified at trial that defendant voluntarily stated to her, after denying any wrongdoing, that he had a drinking problem that prevented him from controlling himself. At the end of the hearing, Judge DePascale stated that
I have had the opportunity to view the tape and the exchange under consideration here. The [d]efendant was advised of his [r]ights by [the detective], actually, [she] didn't get all of his [r]ights out. In the process of [reading him his rights], . . . his assertion of his [r]ight to an attorney, actually interrupted the reading of the entire [Miranda] form because, as soon as he said that, the [d]etective stopped reading and understood at that point [that] she could not continue any examination, [she] left the room, came back into the room, and as [the assistant prosecutor] indicated, didn't sit down again. [She] just told him [that] they had to take him to a holding cell. Because he asserted his [r]ight [to counsel], there would be no further questioning with respect to [defendant's] version of the events.
Clearly, under the circumstances, there was communication necessary between the [d]etective and the [defendant]. He had already been told he's being placed under arrest following the interview and [that] physically he had to leave the room. Since he was in custody, she had to give him direction as to what he would do or where he would go. So clearly, there's a reason for the communication, other than as [c]ounsel for [d]efendant suggests, a subterfuge, to get him to continue [to] speak.
Judge DePascale's finding that there was "no subterfuge involved on the part of [the detective]" is amply supported by the video/audio recording and the testimonial evidence presented at the N.J.R.E. 104 hearing.
Regarding the contention that the court failed to give a limited instruction, we apply the plain error standard because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Against this standard, we see no plain error.
Although the better course would have been to give a limited instruction that the jury could use defendant's statement to show that his drinking problem caused him to stay home, thereby affording him the opportunity to commit the acts against C.A., the State presented overwhelming evidence supporting defendant's guilt. See State v. Hunt, 115 N.J. 330, 364 (1989) (indicating that the failure to give a limited instruction constituted harmless error due to the substantial evidence that the State produced); State v. Rose, 112 N.J. 454, 490 (1988) (noting that "[i]n view of the substantial evidence of defendant's guilt, we do not find that the court's failure to give this limiting instruction constituted reversible error"); State v. Stefanelli, 78 N.J. 418, 436-37 (1979) (concluding that the failure to instruct the jury that a co-defendant's guilty plea could not be used to show that the defendant was guilty ruled harmless error because evidence and testimony independently established defendant's guilt); State v. Lair, 62 N.J. 388, 392 (1973) (concluding that the failure to give a limited instruction regarding the use of prior criminal convictions did not warrant reversal because of the overwhelming evidence pointing to the defendant's guilt). As a result, we conclude that the failure to give a limited instruction does not warrant reversal.
Nevertheless, in his final charge to the jury, Judge DePascale addressed defendant's oral statement to the investigator. He did so because defendant testified at trial that he did not "recall exactly what [he] told [the investigator]." He testified that "I don't know what I wanted to tell her because when I drink, it is on weekends when I am out. I don't remember what I tried to tell [the investigator]." Defendant testified that he did not remember using the word "problem, " and he "[does not] know enough English to know what I was trying to tell [her]." Judge DePascale charged the jury without objection that
[n]ow, there is for your consideration in this case, an oral statement made by the [d]efendant.
It is your function to determine whether or not the statement was actually made by the [d]efendant, and if made, whether the statement or any portion of it is credible.
In considering whether or not an oral statement was actually made by the [d]efendant, and if made, whether it is credible, you should receive, weigh, and consider this evidence with caution. . . .
You should, therefore, consider, weigh, receive such evidence with caution.
Now, the alleged statement in this case [that] the [d]efendant[ is] alleged to have made and I quote is: "Yeah, the only thing I can tell you, you know whatever, like I told him, I have a drinking problem. That's the only thing [that] I can tell you. But I know [that] I haven't done anything [wrong]. It's just [that] I can't control myself with drinking."
If, . . . you determine that the statement was not actually made or that the statement[ is] not credible, then you must disregard the statement completely.
If you find the statement was made and that part or all of the statement[ is] credible, you may [give] what weight you think appropriate to the portion of the statement you find to be truthful and credible. Thus, in light of defendant's testimony in which he denied having a drinking problem and presented an unclear recollection about what he told the detective, the jury was free to reject all or a portion of what he said.
Finally, we see no prosecutorial misconduct here. Rather, we conclude that the assistant prosecutor's remarks in summation amounted to fair comment on the evidence. In her summation, the assistant prosecutor connected defendant's drinking problem to show that, as a result of being drunk, defendant would miss work and stay home, thereby providing an opportunity to commit the sexual abuse. She also made a fleeting comment about defendant's voluntary admission that "[he] can't control [himself] with drinking" and indicated that
[n]ow, what else can that statement mean? I suggest to you that it is consciousness of guilt . . . . It meant [that] I can't control myself when I drink. I think that means, ladies and gentlemen, obviously [it is] up to you to decide that it means he couldn't control himself when he's drinking.
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). 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.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied sub nom. Timmendequas v. New Jersey, 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) (quoting State v. Bucanis, supra, 26 N.J. 45, 56, cert. denied sub nom. Bucanis v. New Jersey, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958)), cert. denied sub nom. Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). Indeed, our Supreme Court has recognized that "criminal trials [often] create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting Bucanis, 26 N.J. at 56). We conclude that the remark was not so egregious that it deprived the defendant of a fair trial. Rather, we consider the fleeting remark as fair comment on the evidence.
Moreover, as is the case here, the absence of a timely objection to a prosecutor's remarks during closing argument "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid.; see also State v. Echols, 199 N.J. 344, 360 (2009) (quoting and applying this standard); Ramseur, supra, 106 N.J. at 323 (same). Defense counsel did not object here.
We reject defendant's contention that the assistant prosecutor elicited testimony that demonstrated defendant sexually assaulted the mother. Defendant refers to testimony from him and the mother in support of this argument. Because defendant did not object at trial, we apply the plain error standard. R. 2:10-2. Defendant focuses on the following general background testimony from the mother:
Q: How old were you when you met [defendant]?
A: Fifteen, fourteen.
Q: And how soon after you started dating [him] did you have [J.P.]?
A: Maybe four months after, I got pregnant and had her.
Defendant argues for the first time that this testimony, in conjunction with his testimony that he met the mother when she was fifteen and they started having children together shortly thereafter, "improperly suggest[s]" that he sexually assaulted the mother too. We view this testimony as foundational evidence to show when and how defendant and the mother met, and to establish that the victims are their biological children. At no point did the assistant prosecutor argue to the jury that defendant sexually abused the mother. And she asked no follow up questions regarding the nature of the sexual relations between them. We conclude that the combined testimony is not clearly capable of producing an unjust result and therefore did not constitute "plain error."
After considering the record and the briefs, we conclude that the remaining arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add these brief remarks regarding defendant's contention that the record did not support an aggregate prison term of thirty years.
Judge DePascale found that aggravating factors N.J.S.A. 2C:44-1a (3) and (9) substantially outweighed mitigating factor N.J.S.A. 2C:44-1b(7). Defendant argues that the "imposition of mid-range sentences was unreasonable in light of the judge's decision to run the sentences consecutively." Essentially, defendant contends that the sentence, which is subject to NERA, PSL, and Megan's Law, is excessive.
Given the circumstances of this case, there is no reason to second-guess Judge DePascale's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). Moreover, in imposing consecutive sentences, the judge followed the guidelines established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). Affirmed.