NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-05-0849.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, on the brief).
Before Judges Fuentes, Fasciale and Haas.
Tried before a jury on a two-count indictment, defendant Christopher Salimone was convicted of second-degree criminal sexual contact, N.J.S.A. 2C:14-3b, as a lesser-included offense of aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (count one); and second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count two). The trial judge sentenced defendant to four years in prison on count one and to a concurrent, five-year term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on count two. Appropriate fines and penalties were also assessed. We affirm.
The State developed the following proofs at trial concerning an incident that occurred between defendant and A.N.on the evening of June 25, 2007. A.N. worked as a waitress at a tavern. A.N. testified that, around 9:00 p.m. that evening, she packed an overnight bag with sweatpants and a t-shirt because she planned to spend the night with her boyfriend, M.G. On the way to M.G.'s home, A.N. stopped at the tavern and decided to have a beer. Her "best friend" R.H. was bartending and the two women began talking. After A.N. had another beer, R.H. invited her to sleep over at her house. A.N. agreed.
R.H. had been dating defendant for several years and he was at her apartment that evening. R.H. called defendant to let him know A.N. was coming over. After the tavern closed, the women walked to R.H.'s apartment. A.N. testified they each took another drink with them when they left.
A.N. did not see defendant when they arrived. A.N. stated the women had some more drinks, sang songs on a karaoke machine, and danced. A.N. also smoked some marijuana. A.N. testified she was "buzzed, " "lit, " and pretty drunk" and, around midnight, she passed out in R.H.'s child's bedroom while still wearing her shirt and jeans.
At some point that night, A.N. testified:
I woke up and it was dark, and I was laying down, and I felt a body behind me, and not only a body behind me, but there was a penis inside of my vagina. I didn't know what was going on. I said stop, what are you doing, and he said sshhh, this never happened. And when I heard the voice I knew it was [defendant], and how the hell he got behind me I don't know. But I said stop. He says you don't want to cum? I says no, I don't.
So my pants were at my knees. I got up, I picked my pants up, and I was walking, and I was still drunk, and I just walked to the front to the couch and I laid down, and I went right back to sleep.
A.N. explained that when she "pushed away, " defendant got out of bed. She also stated she yelled, "What are you, fucking nuts?" at defendant during the incident. Although she did not see the person in the dark, she knew that it was defendant:
Well, I knew it was him because I heard his voice, but I could feel the mustache touching the back of my neck, and I smelled his cologne. I smelled cologne, I don't know it was his, you know.
I don't remember seeing him. I remember getting away from him and going to the front room. I didn't see him, I don't remember, and then I went right back to sleep.
A.N. did not know if defendant ejaculated.
A.N. testified she woke up at 6:00 a.m. She was now wearing the sweatpants she had brought with her, but had no idea when she put them on. She was not wearing panties. She looked into R.H.'s room and saw her sleeping with defendant. A.N.'s jeans were on the floor and they were wet with urine. She put them in a bag and took them with her.
As she drove to pick up her own child, A.N. testified she "started remembering what happened." She stated, "I remember him saying sshhh, I remember a penis being inside me, I remember his cursing, I remember getting up, I remember him touching me, I remember, I remember, and I said to myself oh, my God, he raped me, my best friend's boyfriend." A.N. decided to put the sweatpants in a bag because defendant's DNA "had to be on there."
On the evening on June 26, A.N. stayed at her sister's home. She spent the next night with M.G. and told him what had happened. After speaking to him, she decided to report the incident to the police. A.N. had sex with M.G. that evening.
In the afternoon of June 28, A.N. and M.G. went to the police station and spoke to Sergeant Richard Mottley. The sergeant collected the sweatpants A.N. brought with her and contacted the rape crisis center. A.N. agreed to go to the hospital for an examination and swabs were taken from her and M.G. for testing.
A.N. did not file a complaint concerning the incident at that time. Instead, she went to the prosecutor's office two weeks later to give a statement concerning her allegations against defendant. On July 12, 2007, Detective Barbara Stio arranged to conduct a "consensual overhear" of a telephone conversation she arranged between A.N. and defendant. A recording of the call was played in court. During the conversation, defendant did not deny having sex with A.N. that night. When A.N. accused him of "raping her, " however, defendant denied it, saying, "I'm telling you, you wanted it" and "it was consensual." He also told A.N. she was awake when it happened.
On August 1, 2007, Detective Stio and Sergeant Mottley interviewed defendant at the police station. The interview was recorded and, after defendant's motion to suppress his statements was denied, it was played for the jury. During the interview, defendant denied having sex with A.N.
Christine Schlenker, a forensic scientist for the DNA unit of the New Jersey State Police, was qualified at trial as an expert in DNA testing. She obtained and analyzed buccal swabs from A.N., defendant, and M.G. She also examined vaginal swabs taken from A.N. The sweatpants were also tested. Both the vaginal swabs and the sweatpants tested presumptively positive for the presence of semen. Schlenker identified M.G. as the source of the major DNA profile obtained from the vaginal swabs, while defendant was excluded as the source.
The autosomal STR test of the sweatpants did not reveal anything that could be identified as defendant's genetic material. Schlenker testified that no conclusions could be reached concerning "a possible contributor" because there was not enough DNA present in the sample to develop a profile.
Schlenker also performed a Y-STR DNA analysis on the sample, which tests for male DNA. When she compared the Y-STR profile from the sweatpants and defendant's Y-STR profile, she concluded that defendant could not "be excluded as a possible contributor to the Y-STR DNA profile obtained."
R.H. also testified for the State. She stated that A.N. was no more than a work acquaintance and the two women were not "best friends." A.N. had only been in her apartment on one prior occasion, for a work-related gathering. R.H. testified that, during the course of that event, A.N. had asked defendant if he would have sex with her.
In the evening on May 25, R.H. testified that A.N. came to the tavern, but did not consume alcohol there. However, because A.N. said she had had "two beers, " R.H. told her she could stay at R.H.'s apartment that night.
When they got to the apartment, defendant was in the bedroom. After having a glass of wine, talking, and using the karaoke machine, A.N. went to sleep in her clothes. During the evening, defendant got up to go to the bathroom and, when he returned, he told R.H. that A.N. had urinated on the floor. Later, the couple woke up to find A.N. standing over them. R.H. told A.N. to go back to bed and she left the room. R.H. heard A.N. wake up several more times that night. When R.H. got up at 5:00 a.m., she found A.N. sleeping in her sweatpants on the couch. She denied hearing anything that evening and had no knowledge of any incident occurring between defendant and A.N.
Defendant testified on his own behalf. He stated he remained in the bedroom after A.N. arrived at the apartment with R.H. He later got up to use the bathroom and saw A.N. standing in the corner of the bedroom urinating, with her jeans "down by her knees" as she leaned against the closet door. He called R.H. to come into the room. They both then went back to bed. He stated that, later in the night, he woke up to find A.N. in R.H.'s bedroom "just looking over at us." He woke up R.H., who took A.N. back to her room.
Later that evening, defendant testified he got up again to go to the bathroom. He saw A.N. laying on her bed uncovered from the waist down and he went over to cover her up. A.N. put her arms on his forearms and "looked up into my eyes." Defendant testified that A.N. "pulled me closer to her, and we kissed." Defendant stated A.N. was not asleep or drunk. Defendant got on top of her and "she was whispering a couple things in my ear, kissed again." Defendant testified he penetrated A.N.'s vagina with his penis and she "respond[ed] to it." A.N. never told him to stop. Defendant could not recall if he ejaculated, but testified "I must have - - I might have left something."
When defendant stopped, A.N. did not yell or say anything else to him. Defendant went back to bed. He never told R.H. what had occurred.
Against this record, defendant raises the following arguments:
THE MOTION COURT ERRED IN NOT DISMISSING THE INDICTMENT BECAUSE THE PROSECUTOR PRESENTED A DISTORTED VERSION OF THE FACTS TO THE GRAND JURY.
THE PROSECUTOR COMMITTED REVERSIBLE ERROR BY ARTICULATING AN ERRONEOUS AND MISLEADING STANDARD OF "CONSENT" IN SUMMATION.
SINCE JUROR NO. 14 BROUGHT TO THE TRIAL COURT'S ATTENTION JURY MISCONDUCT THAT HAD THE CAPACITY TO UNDERMINE ITS IMPARTIALITY, THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING TRIAL COUNSEL'S MOTION FOR A MISTRIAL OR FOR A JURY RECHARGE.
THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S RECORDED STATEMENT INTO EVIDENCE BECAUSE DEFENDANT INVOKED HIS ...