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State v. Salimone

Superior Court of New Jersey, Appellate Division

October 18, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
CHRISTOPHER SALIMONE, Defendant-Appellant.


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.[1]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[2] 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"[3] 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:


After reviewing the record in light of prevailing legal standards, we reject these arguments and affirm.

Defendant first contends the motion judge erred by not granting his motion to dismiss the indictment. He argues that not dismissing the indictment was error because the prosecutor failed to present evidence concerning the presence of M.G.'s semen in A.N.'s vagina to the grand jury, incorrectly "instructed" the grand jury "that no other DNA evidence existed, " and failed to play the recording of the consensual overhear. We find to the contrary.

A decision to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J.Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "only on the "clearest and plainest ground . . . when it is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (internal citations and quotation marks omitted).

"[O]nly in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment." Id. at 239. "[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J.Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). The role of a grand jury is "not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." Hogan, supra , 144 N.J. at 235. "Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Ibid.

The State, however, "may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Id. at 236. The prosecutor's limited duty to present exculpatory evidence is "triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237. Applying these principles, we conclude the judge did not abuse his discretion in denying defendant's motion to dismiss the indictment.

A.N. testified before the grand jury in a manner consistent with her trial testimony. The State relied upon Detective Stio to describe what transpired during the consensual overhear. She also presented the DNA evidence. The detective testified that, based on the results of the DNA testing, defendant could not be excluded as a contributor to the genetic material found on A.N.'s sweatpants. The detective stated there was no other DNA evidence found that would connect defendant "to this particular incident." The prosecutor then instructed the grand jurors that they "should not infer that there's any other evidence in the DNA evidence . . . . [Y]ou should not speculate that there would be other. There is none, for purposes of this presentation."

At this point in the investigation, the prosecutor knew that M.G.'s DNA was found in A.N.'s vagina two days after the incident. Defendant argues that if the grand jury knew about the presence of M.G.'s DNA, he would not have been charged with sexual assault. We disagree. There was no dispute as to defendant's identity or to his involvement in the incident since he admitted to having sex with A.N. that night during the consensual overhear. Therefore, the only issue was whether she consented to the sexual encounter. Under these circumstances, the evidence concerning M.G.'s DNA being present in A.N.'s vagina did not "directly negate [defendant's] guilt" and it was not "clearly exculpatory." Hogan, supra, 144 N.J. at 237.

Moreover, the prosecutor did not mislead the grand jury in his remarks. Detective Stio testified that, other than the fact that defendant could not be excluded as a contributor to the genetic material found on A.N.'s sweatpants, there was no other DNA evidence linking him to the incident. The prosecutor's immediate instruction to the grand jury that there was no other DNA evidence was therefore based squarely on the testimony presented.

Finally, the State was under no obligation to play the tape of the consensual overhear to the grand jury. Defendant has not demonstrated that any portion of the tape, not summarized by Detective Stio in her testimony, squarely refuted an element of the offenses in question. Therefore, the judge's denial of defendant's motion to dismiss the indictment was not an abuse of discretion.

Defendant next argues the prosecutor improperly stated in his summation that defendant had the burden of proving that A.N. consented to having sexual intercourse with him. We disagree.

In his closing, the prosecutor discussed the statements defendant made to A.N. during the consensual overhear. Defendant focuses on the following remarks by the prosecutor:

And I submit to you, ladies and gentlemen, you listen to that overhear, should you want it replayed it will be here for you . . . he's already apologizing. It wasn't a real mea culpa, I'm so sorry, no. But she was angry. Why did you do this, tell me why, I'm sorry, I don't know why. Well, when you really think about that, folks, that's an admission. That's an admission that he never got consent. And he's apologizing for it because at this point she's fired up.
Later on in the overhear he goes on and further tries to suggest that this was consensual in a very depraved attempt to convince her of this. But there was something so unmistakably missing from the overhear that every reasonable juror would expect to hear. Details. Give us the details of the so-called consent. He didn't give us any details. If this really was consensual sex between two people, both people would know the details, or at least have some idea of the details. There's very little details.

After the prosecutor's summation concluded, defendant objected, claiming the remarks shifted the burden of proof to defendant. The judge reviewed the transcript and, although he made no finding that anything the prosecutor said was improper, advised counsel he would instruct the jury that the closing arguments of the parties were not evidence and that his instructions as to the law controlled.

Prosecutorial misconduct is not a basis for reversal unless the conduct was "so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Ramseur, 106 N.J. 123, 322 (internal quotation marks omitted), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Accordingly, the prosecutor's statements to the jury must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense" in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219 (quoting State v. Bucanis, 26 N.J. 45, 56, 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, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996).

No misconduct occurred in this case. The prosecutor's remarks were not, directly or indirectly, comments on the burden of proof. After making the comments cited above, the prosecutor stated:

And what we now know, the details on the overhear are contrary to the details he gave us in court. And the timeframe is completely changed all of a sudden. They want to say that that was the truth, that was the version, Stio should have just quit while she was ahead? Of course not. It didn't make sense. And it makes even less sense today, three years later, after all this testimony, it makes even less sense.

Thus, when read in full context, the prosecutor's remarks were merely a commentary on the evidence and defendant's credibility. Specifically, there was a difference between defendant's statement to A.N. during the consensual overhear and defendant's statements to the police during the course of the investigation and at trial. The prosecutor's argument about the lack of details in the consensual overhear was plainly an attempt to contrast the various statements made by defendant and thereby attack his credibility. Such commentary is entirely appropriate. Frost, supra, 158 N.J. at 82.

Additionally, the judge instructed the jury appropriately that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence, and must not be treated as evidence." He additionally instructed that "[t]he burden of proving each element of the charge beyond a reasonable doubt rests upon the State, and the burden never shifts to the defendant. The defendant in a criminal case has no obligation to prove his innocence, or offer any proof relating to his innocence." We therefore reject defendant's contention on this point.

Defendant next asserts the trial judge erred by failing to grant his motion for a mistrial after the jury sent out a note questioning a statement made by Juror No. 14 during deliberations. In the alternative, he argues the judge should have recharged the jury on reasonable doubt, the burden of proof, and the presumption of innocence. We discern no abuse of discretion in the manner in which the judge handled this matter.

After the jury had been deliberating for approximately three hours, it sent a note to the judge asking, "Can we replace [Juror No. 14] with the alternate. Something has come [sic] where we feel like he can't make an unbiased decision." After discussing the matter with counsel, the judge asked the jury to be more specific as to "what the something has come is." The jury sent out a second note, which read "Juror No. 14 . . . said 'I don't believe complete justice can ever be served.' Several jurors have an issue with that statement."

The judge again discussed the matter with the attorneys. Defense counsel stated, "Frankly, I don't have an issue with the statement, Judge. I don't think that indicates any bias. That's a philosophical statement. I don't know if you have to go any further." The prosecutor disagreed and asked the judge to inquire further. The judge determined to bring all the jurors back to the court room and he read them the standard charge about how they were to conduct their deliberations. With the exception of Juror No. 14, the judge asked the jurors to return to the jury room and told them, "Do not continue your deliberations because you're not all together, and then you'll remain and we'll advise you in a moment."

The judge then conducted an extended voir dire of Juror No. 14, but cautioned him not to divulge the jury's specific deliberations. Juror No. 14 told the judge he could follow the jury charge and base his decision on the evidence and law given by the court. With regard to the statement he had made to the other jurors, he explained, "I was saying one of my personal experiences to the jurors off the record, and the jurors had a problem with that. They said that I was biased, when I believed that certain jurors were taking biased opinions on things that are just hearsay . . . ." The colloquy continued:

THE COURT: And was that in the process of expressing some sort of opinion, or as to this case?
JUROR NO. 14: I'm basically saying that you can't make everyone happy. That's what I meant.
THE COURT: All right. Now, does that statement impact on your ability to consider the evidence in this case, apply the law to this case, deliberate with your other jurors, and render a verdict fairly and impartially?
JUROR NO. 14: No.

After further input from counsel, the court inquired about the personal experience that Juror No. 14 had referenced to the other jurors:

JUROR NO. 14: It was an experience in my childhood where I was, when I was going through my mom and dad's divorce.
THE COURT: All right. And something occurred?
JUROR NO. 14: Well, I just feel like that there are people that are taking bias, and I wanted to show them that it's not right to take a bias just because you believe in one person more than another person, you should take into consideration everything that's handed in front of you, and I was trying to relay that to them, and they took it as well, you're, you're supporting one person more than another, I said I don't support anybody, I only support the facts and what's laid in front of me.
THE COURT: Meaning the evidence. . . . And the law.
JUROR NO. 14: Evidence and the law, and I believe that a person is innocent until proven guilty, and that's what I was trying to relate to them, he's not guilty until he's proven innocent, and I believe that there were a few people that were --
THE COURT: All right. Don't tell us what -- as a result of this, this is part of the give and take of your deliberations.
THE COURT: You're able to weigh the case, decide the case, deliberate, on the basis of what you heard in this courtroom.
JUROR NO. 14: Yeah, only what I've heard in this courtroom.
THE COURT: And the law.
JUROR NO. 14: And not anything else.
THE COURT: All right.

The judge then asked Juror No. 14 to return to the jury room, and not discuss the voir dire with the other jurors or begin to deliberate until the judge provided further instructions.

Defense counsel was satisfied with the juror's explanation and stated, "He gave the proper responses, Judge." The prosecutor asked that the foreperson be questioned to determine if Juror No. 14's statements were consistent with what happened in the jury room. The judge denied this request, finding that further voir dire would disturb the deliberative process and the "free flow discussion" of the jurors. The jury was then brought back to the court room and, because it was already 4:30 p.m., court was adjourned. The next trial date was scheduled for five days later.

On that date, defense counsel asked the judge to declare a mistrial, arguing for the first time that while Juror No. 14's responses during voir dire were appropriate, they cast doubt as to whether the other jurors were unbiased. Counsel noted that Juror No. 14 stated the other jurors thought he was biased, while he thought they might be. In the alternative, counsel asked the judge to recharge the jury on reasonable doubt, the burden of proof, and the presumption of innocence.

The judge denied defendant's motions and explained, "I'm not going to read into, you know, [Juror No. 14's] words, then turn it around and say that the rest of the jury is not understanding the law." He also stated that it was not appropriate to pick and choose parts of the charge to re-read to the jurors. However, as he had when the issue arose, the judge recharged the jury on their responsibility as jurors to impartially conduct their deliberations. The jury resumed its deliberations without incident.

"A mistrial is an extraordinary remedy[]" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J.Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)).

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court[.]" State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it is an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).

"The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to . . . trial by an impartial jury." State v. R.D., 169 N.J. 551, 557 (2001) (alteration in original) (citations and internal quotation marks omitted). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. As we have held,

The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.
[State v. Scherzer, 301 N.J.Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]

Here, the trial judge scrupulously followed these principles. He immediately sought the input of counsel and further clarification concerning the jury's inquiry. Having obtained clarification that the other jurors were concerned that Juror No. 14's statement "I don't believe complete justice can ever be served" might indicate a bias, he isolated Juror No. 14 from the other jurors and ensured that no deliberations occurred while the matter was being addressed. The judge conducted an extensive voir dire of Juror No. 14, pausing to again seek the input of counsel. The juror explained his comment was designed to show he was not biased and that he would make his decision based solely on the evidence presented and the law applicable to the case. The judge evaluated the juror's responses and determined there was no taint. Defense counsel stated he was satisfied with the judge's response to the situation.

When defense counsel sought a mistrial five days later, arguing for the first time that Juror No. 14's comments could be interpreted to mean that the other jurors were biased in some way, the judge declined to "read into . . . his words, then turn it around and say that the rest of the jury is not understanding the law." We discern no abuse of discretion in the judge's determination. While the judge could have conducted a voir dire of each and every juror, he was understandably concerned that doing so would interfere with, and possibly irretrievably disrupt, the deliberative process. Moreover, the judge had the opportunity to hear, see, and evaluate Juror No. 14 during the voir dire, and we defer to his finding that Juror No. 14 was not biased and that there was no reasonable basis to believe any other juror was. See State v. Locurto, 157 N.J. 463, 471 (1999).

The judge properly gave the jury the standard supplemental instruction on how it should conduct its deliberations and properly denied defendant's request to "pick[] and choos[e]" other parts of the main jury charge to read to the jury. After resuming deliberations, the jury sent out another note asking for clarification of one of the charges. It made no request for any additional instructions and no further issue concerning juror conduct was raised.

Under these circumstances, we are satisfied that the record amply supports the judge's determination that no juror misconduct occurred in this case. Accordingly, the judge properly denied defendant's motion for a mistrial.

Defendant next challenges the trial judge's denial of his motion to suppress the oral statement he provided to Detective Stio and Sergeant Mottley on August 1, 2007. Defendant alleges he unequivocally asked to speak to an attorney during the interview with the officers, but they continued to question him in violation of his Miranda[4] rights. This argument lacks merit.

The transcript of the interview reflects that Detective Stio advised defendant of his Miranda rights before there was any questioning. Defendant responded affirmatively that he understood each of the rights. Detective Stio asked defendant if he was "willing to answer questions without the presence of an attorney" and defendant responded, "Yes I am." The interview then proceeded.

Approximately twenty-six minutes into the thirty minute interview, the following exchange took place between the detective and defendant:

[DETECTIVE STIO]: And then what happened? She asked you to?
[DETECTIVE STIO]: For sex and then you --
[DEFENDANT]: You, "Do you wanna, do you wanna do it? Do you wanna have sex?"
[DEFENDANT]: And I just covered her up, I said, "[A.N.], you gotta go to sleep, gotta get some sleep, " that's it, and I walked out of the room. Um, can I consult my lawyer about this?
[DETECTIVE STIO]: You can consult who ever you want.
[DETECTIVE STIO]: I know, since you are asking me for a lawyer right now, then my conversation with you is finished. Is that what you're doing? Or, do you wanna, if you want to talk to me still, that's your prerogative, but if you are telling me you want an attorney then I'm done.
[DEFENDANT]: No I haven't said I want that, can I consult my attorney?
[DETECTIVE STIO]: Sure, anytime you want.
[DETECTIVE STIO]: But what I'm asking you, is it, do you want one right now? Or, do you wanna, continue talking to me?
[DEFENDANT]: No, he is not gonna come out here now.
[DETECTIVE STIO]: Well, well, I mean, I'm still, I want to make sure that you're --
[DEFENDANT]: No I'll talk to you --
[DETECTIVE STIO]: -- you're [sic] rights are your rights, I don't wanna --
[DEFENDANT]: No, no problem.

Detective Stio, who was the only witness at the Miranda hearing, testified as to her understanding of defendant's question:

Well, at first, the first time he said that I asked him, you know, does that mean you want an attorney, I wanted to be perfectly clear that if he wanted an attorney that I would stop asking him questions, and then he said, I don't know his exact words, but that he continued to speak with us, and I didn't feel at that time that he was invoking his right to an attorney.

Thus, the interview continued for approximately four more minutes. Defendant gave no further significant information and made no admissions of wrongdoing. Toward the end of the interview, after Detective Stio told defendant sexual assault did not always "mean that . . . there's a struggle[, ]" this colloquy followed:

[DEFENDANT]: I'm thinking that, want to consult my lawyer - -
[DEFENDANT]: - - tomorrow. And, and, can I set up another appointment with you?

Detective Stio testified she ended the interview at that point because she wasn't even really sure, at the end there when he said it again he would like to consult an attorney, I wasn't even sure then, and I decided at that point maybe he's not clear, and I don't want to make, I don't want to be improper, so I decided that that's, you know, I deemed that to be, you know, that he was invoking it.

The judge denied defendant's motion to suppress the statement, finding it was made "knowingly" and "voluntarily." The judge found that defendant's initial question about counsel "was not some sort of indication he didn't want to speak, it was more of a single remark asking again to clarify his rights, and he continued to voluntarily speak. Then when again he brought up the topic the interview was properly terminated."

The scope of appellate review of a trial judge's findings in a suppression hearing is limited. State v. Robinson, 200 N.J. 1, 15 (2009). An appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J.Super. 208, 228 (2006), aff'd in part, rev'd in part, 194 N.J. 224 (2007)) (internal quotation marks omitted). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

It is well established that "once a suspect in custody invokes his right to counsel, the interrogation 'must cease, ' and 'the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" State v. Wessells, 209 N.J. 395, 402 (2012) (quoting Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1627-28, 16 L.Ed.2d 723). "[A] suspect who has invoked his or her right to counsel 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Id. at 403 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981)).

To determine whether a suspect has invoked his or her right to counsel, we consider the "totality of circumstances, " focusing on "the reasonable interpretation of defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012). The invocation of the right to counsel "need not be articulate, clear or explicit . . . any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Alston, 204 N.J. 614, 622 (2011) (quoting State v. Reed, 133 N.J. 237, 253 (1993). However, "when a suspect's words are ambiguous, " police are permitted "to follow up by asking questions that are designed to clarify the meaning of those words." Id. at 623.

Applying these principles to the "totality of circumstances" surrounding defendant's statement, we discern no basis to disturb the trial judge's decision to deny defendant's motion to suppress. Defendant's statement, "can I consult my attorney about this, " was not an assertion of a right, ambiguous or otherwise. Rather, it was a question, posed to Detective Stio, that amounted to defendant's request for confirmation that he could speak to an attorney if he wanted to do so. The response of the detective, which was entirely appropriate under the circumstances, was a simple request for clarification as to whether defendant wanted to speak to his attorney or to continue the interview. Defendant then expressed his desire to continue to speak to the officers and the interview properly continued for an additional four minutes during which he provided no significant or incriminating information. We therefore find no error in the denial of defendant's suppression motion.

Defendant's remaining claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant contends that Sergeant Mottley's reference to his unrelated DWI arrest during cross-examination, without the judge giving a sua sponte curative instruction, warranted a mistrial. We disagree. The State did not solicit this testimony; defense counsel did. Moreover, a "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). Once defense counsel raised an objection to the officer's comment, the judge offered to provide the jury with a curative instruction that the brief reference to the DWI arrest should be disregarded. Counsel declined this offer and cannot now be heard to complain. In any event, the single reference to defendant's DWI arrest was not so prejudicial as to result in manifest injustice.

Defendant argues that Schlenker, the State's DNA expert, improperly opined on defendant's guilt when she referred to A.N. as "the victim" and to defendant as "the suspect" during her description of the DNA testing she conducted. Defendant's argument overlooks the definition of the term "victim" in N.J.S.A. 2C:14-1b as "a person alleging to have been subjected to offenses proscribed by this act[.]" Thus, the term "victim" properly applied to A.N. The prosecutor also referred to A.N. as the "alleged victim" several times during Schlenker's testimony. As for the reference to defendant as "the suspect, " the judge instructed the jury that the fact he was charged with an offense and was a defendant in this action was not evidence of his guilt. Defendant raised no objection at trial to these innocuous, brief references. There was no error, much less plain error, in the admission of this testimony.

Defendant argues that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected defendant's argument that any reversible error occurred during his trial, we also reject his cumulative error argument.

Finally, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. We discern no basis in the record to disturb the judge's decision not to sentence defendant to a term appropriate for an offense one degree lower than that for which he was convicted. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).


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