Opinion
DOCKET NO. A-4394-12T4
03-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH T. JONES, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Michael J. Mennuti, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Al Garcia, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-07-0793. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Michael J. Mennuti, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Al Garcia, Assistant Prosecutor, on the brief). PER CURIAM
Tried by a jury, defendant Joseph Jones was convicted of one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c). He was acquitted of the remaining counts of the indictment, which charged him with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:14-3(b) and 2C:5-1. On June 8, 2012, defendant was sentenced to five years' imprisonment subject to the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Appropriate fines and penalties were imposed, as were Megan's Law, N.J.S.A. 2C:7-1 to -23, and Parole Supervision for Life, N.J.S.A. 2C:43-6.4, requirements. Defendant appeals, and we affirm.
I
We recount the facts and circumstances developed by the State at trial. Defendant, who was employed by a beauty salon as a massage therapist, was giving a hot-stone massage to T.B., a salon client, when the incident occurred.
The salon's manager testified that, when confronted some days later with T.B.'s accusations, defendant admitted that "he [] penetrated [T.B.] with his finger". The manager continued:
. . . I know that there was a lot of uncomfortableness in the room, so there weren't a lot of specific details given at that time, but there was an agreement that there was sexual contact made during the massage in the form of penetration.
. . . .
He was very apologetic about what happened, uncomfortable during the
conversation. He was a little perplexed as to what happened and how it happened[.]
. . . .
[H]e said that he didn't understand, you know, what was going through his mind, how it happened, and he was, you know, uncomfortable, you know.
. . . .
He was nervous. He was ashamed. He was apologetic to us, to me and [the owner of the salon].
One of the salon's owners participated in the meeting by phone and asked most of the questions. Defendant was fired on the spot.
Shortly thereafter, at his employer's request, defendant provided a written statement regarding the incident. The manager read the five-page letter to the jury. In relevant part, it states:
I was at the end of my second stroke in the sequence, and suddenly felt [T.B.'s] body move in a jerking fashion. My first thought was that I had burned her, and I opened my eyes quickly. Her movement had caused the stone in my right hand to inadvertently enter her vagina at which point I froze. I was acutely aware that my finger was holding a stone inside someone's vagina. At that point, [T.B.] moved away from contact with my hands. I quickly stuttered a banter of apologies as fear and shock seemed to numb my brain.
[T.B.] was obviously distraught and, simply put, I could not blame her in any way
for what took place. I have come to describe it as a horrific accident after second guessing myself a million times and seeking questions about my intentions and my focus as a professional. She then asked if she could turn over and if her time was up. I replied that I felt that I could finish her massage in a professional manner and in hindsight should have ended the session, apologized and offered a refund at that point, as at least a token effort to recognize her discomfort and sense of violation. I finished the massage with [T.B.] on her back and left the room. She seemed composed, not particularly responsive to my apologies, which is quite understandable under the circumstances.
To all of the [salon's] staff and other clients, I offer my sincerely deepest regrets in having not been able to have handled the situation more professionally. Since it was, indeed, a horrific accident and no reflection of the hundreds of times I have performed massage deeply and purely from my heart with no personal intentions reflected [] or agenda apart from giving the very best I possibly could at all times to the best of my ability.
Counsel also extensively cross-examined the victim on this point. T.B. was repeatedly questioned regarding her financial motives, the details of the incident, and whether she was "lying."
The transcripts include 115 pages of the victim's cross-examination.
T.B. testified that as defendant was administering the massage and she was on her stomach, she felt him penetrate her vaginally twice with his fingers. She denied that the incident involved the hot stones that he had used earlier in the massage, and which she said she had not even requested. T.B. also said that defendant used the stones no higher than above her knees.
T.B. further testified that, in addition to digitally penetrating her, defendant placed her wrist on his penis and, when she turned over, attempted to kiss her. She said she initially curled up in a fetal position because she was in such shock. It was not until defendant attempted to kiss her that she got up from the table and fled the room. T.B. added that defendant apologized profusely as she was leaving the locker room after getting dressed, and attempted to force a glass of water on her. The victim said nothing of the assault to the person behind the front desk as she paid for the session. She explained that she paid because she wanted to be able to document that the session actually occurred.
T.B., who was acquainted with a family member of the owners, attempted to contact one of the owners over the next several days. When she finally reached her, the owner told her to file a police report, which eventually resulted in these charges. T.B. also filed a civil claim against the salon, which the jury was told was "resolved."
The defense theory was that T.B., knowing that the salon was co-owned by a wealthy sports figure, lied about the incident for financial gain. Defense counsel first made the argument in her opening statement:
Let's talk about what this case really is about. [T.B.], Plaintiff, versus [the salon and its owners]. A civil suit filed in the Superior Court of New Jersey, Mercer County Law Division. That's what this case is about. [T.B.] had dollar signs in her eyes. [T.B.] went to the spa salon of a well known [] football player, [] who she believed had millions and millions to give her. That's what this case is about. By the way, [the prosecutor] didn't tell you anything about this.
. . . .
. . . By the way, listen to all the different stories this woman told about this case. You hear through the course of this trial, she can't keep these facts straight. She can't keep the facts straight. And I tell you, the truth is easy to remember, a lie is difficult to get straight.
In closing, counsel repeated that T.B. had told the jury many "lies." The explanation for these lies was the theme developed in her opening statement: the "[d]ollar signs in [T.B.'s] eyes."
In his closing, the prosecutor responded that the civil lawsuit did not explain why the victim would subject herself to a trial. He also pointed out that, in any event, defendant's admissions corroborated T.B.'s testimony. After several objections and sidebar discussions, he finally said:
If anything, ladies and gentlemen, the fact that the civil suit is resolved and we are still here today discussing the criminal aspects speaks volumes as to the complete lack of motive for her to fabricate.Defense counsel objected to this statement as well, but her objection was overruled.
. . . .
But as I indicated, ladies and gentlemen, relying on the civil suit as a motive to fabricate what had happened on February 24th, 2007, does not explain why she was still willing to do this today after the conclusion of the civil litigation. It doesn't.
During the charge conference before trial, the prosecutor indicated he was not introducing any fresh-complaint witnesses and defense counsel concurred. The court responded, "so you both agree that at this point anyway, there is no fresh[-]complaint instruction appropriate." Defense counsel said, "[a]ctually, there's a reverse fresh[-]complaint instruction that you might want to look at, that I might be asking you to give." The court again confirmed that no fresh-complaint testimony would be introduced.
At the close of the trial, when the judge asked the attorneys if they had any requests to charge, defense counsel reiterated, "fresh[-]complaint silence or failure to complain." The court then reviewed the proposed final charges with counsel, asking if either attorney had any concerns. This review included the Model Jury Charge regarding lack of fresh-complaint evidence. Model Jury Charge (Criminal), "Fresh Complaint: Silence or Failure to Complain" (2013).
During the course of the sentencing hearing, defense counsel reiterated her position that the jury saw that the victim was a liar, and that she, in examining the victim and presenting her opening and closing statements to the jury, rightly "called a liar a liar." She again mentioned the victim's lawsuit against the salon as the sole motivation for the sexual assault claim, and asserted that the victim was "very capable of taking care of herself all the way to the bank."
Defense counsel also presented a number of character letters in support of defendant. He was previously employed by the State as a senior corrections officer, but had been suspended awaiting trial.
The State sought the imposition of a seven-year sentence, while defense counsel argued for a sentence in the third-degree range, of four years. In sentencing defendant, the judge acknowledged the character letters and defendant's community involvement since his suspension from employment. The judge also mentioned that when defendant was interviewed at the Adult Diagnostic and Treatment Center (ADTC), pursuant to N.J.S.A. 2C:47-1, he volunteered that an earlier complaint had been filed against him by another massage therapy client. He explained the allegation as having involved consensual sex. The judge had earlier learned of the incident during a sidebar in the midst of T.B.'s cross-examination.
In sentencing defendant, the trial judge discussed at some length his reasons for finding aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant "will commit another offense." These included his lack of remorse and the prior incident. The judge also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. With respect to defendant's lack of a criminal history, mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), he gave defendant only "partial credit" because of the prior incident. The judge declined to find either additional aggravating factors as requested by the State, or mitigating factors as requested by defendant, as he concluded neither were supported by the record.
Defendant on appeal asserts the following points of error:
POINT I
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE COMPLAINING WITNESS'S CREDIBILITY, DEPRIVING [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL. U.S.
CONST., AMEND. XIV; N.J. CONST. [] ART. 1, [¶] 10.
POINT II
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO ELICIT INADMISSIBLE "FRESH COMPLAINT" EVIDENCE IN VIOLATION OF [DEFENDANT]'S RIGHTS TO CONFRONTATION AND A FAIR TRIAL. (Not Raised Below.)
POINT III
THE TRIAL COURT ERRED BY FAILING TO PROPERLY INSTRUCT THE JURY ON THE DOCTRINE OF FAILURE OF FRESH COMPLAINT/FAILURE TO COMPLAIN. (Not Raised Below.)
POINT IV
THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, [DEFENDANT] WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND. (Not Raised Below.)
A. The Sentencing Court Improperly Applied Aggravating Factors.
1. N.J.S.A. 2C:44-1a(3) & N.J.S.A. 2C:44a(9).
2. N.J.S.A. 2C:44-1a(9).
B. The Sentencing Court Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
1. N.J.S.A. 2C:44-1b(7).
2. N.J.S.A. 2C:44-1b(8).
3. N.J.S.A. 2C:44-1b(9).
C. The Sentencing Court's Failure In Relation To The Finding of Aggravating And Mitigating Factors Preclude A Proper Analysis of [defendant]'s
Application To Be Sentenced In The Third-Degree Range.
D. The Sentencing Court Failed To Consider The Real Time Consequences Of NERA When Imposing Sentence on [defendant].
II
A prosecutor's "primary duty" is "to see that justice is done[,]" not merely "to obtain convictions." State v. Timmendeguas, 161 N.J. 515, 587 (1999). Thus "'[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Ibid. (quoting State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).
Prosecutorial misconduct, however wrongful, "is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations and internal quotation marks omitted). That is, the prosecutor's conduct must have been "clearly and unmistakably improper and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 438 (internal quotation marks omitted).
Though the State is "afforded considerable leeway in making opening statements and summations," a prosecutor must not "express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of [] defendant." State v. DiFrisco, 137 N.J. 434, 474 (1994) (internal quotation marks omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Marshall, 123 N.J. 1, 154 (1991) (internal quotation marks omitted).
A.
Defendant alleges that the State improperly vouched for T.B. in closing by arguing that her continued participation in the criminal matter after her civil suit's resolution "sp[oke] volumes as to the complete lack of motive for her to fabricate." We do not agree.
Defense counsel's strategy was to repeatedly attribute the charges to the victim's desire to recover damages from the salon's owners. This theory was advanced not only in counsel's opening statement, but also in her extensive cross-examination of the victim, which included a number of questions along the lines of "didn't you lie when . . ." In closing, counsel listed a number of alleged factual conflicts between details in T.B.'s statements and her testimony on the stand, repeatedly calling her a liar and characterizing her testimony as motivated by her civil lawsuit.
In our view, the State's response was a measured reply to a frontal attack on the victim's credibility. There was no other way the State could respond to defendant's attack but by pointing out the obvious—that the lawsuit had been resolved—while properly avoiding specifics, and making reference to the fact that, despite the resolution, T.B. was willing to testify in the criminal matter. That she was entitled to file suit was a fact self-evident to the jury. Therefore, there was simply nothing improper about the prosecutor's response. It was not an expression of personal belief.
B.
Defendant now contends that the judge erred by admitting fresh-complaint evidence, and by omitting the corresponding instruction. T.B. did testify that she informed her sister and the salon manager about "what happened." She said she told the manager that defendant had digitally penetrated her and that she was shocked about the incident. The manager, in turn, acknowledged T.B. telling her about the incident. However, after the brief reference to T.B.'s report, the manager's testimony focused on defendant's statements during the course of the meeting which resulted in his termination, and on the reading of defendant's letter.
Additionally, both attorneys agreed the testimony was not fresh-complaint evidence. Defense counsel went a step further—she not only agreed that it was not fresh-complaint evidence, but also requested the lack of fresh-complaint evidence instruction. This instruction fit neatly into the defense theory that the victim was lying and manufactured the charges to bolster her claim for damages in the civil case. Hence defendant cannot now assert that the admission of the testimony was error, nor that the failure to give the fresh-complaint instruction was error.
The doctrine of invited error "is intended to prevent defendants from manipulating the system" and applies "when a defendant in some way has led the court into error while pursuing a tactical advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100 (2014) (internal quotation marks omitted). The doctrine includes errors "induced, encouraged[,] acquiesced in[,] or consented to by defense counsel," such as failures to object. State v. A.R., 213 N.J. 542, 561, 563 (2013) (internal quotation marks omitted).
During the charge conference, defense counsel "d[id]n't have a problem" with the judge's proposed lack-of-fresh-complaint instruction, and agreed further instructions were unnecessary since "[t]here has been no fresh[-]complaint testimony here." Defense counsel correctly foresaw that no fresh-complaint testimony was forthcoming, and not only said that no instruction was necessary, but even requested the reverse-fresh-complaint instruction. If, for the sake of argument, we hypothesize that admission of the testimony and failure to give the instruction were errors, they were nonetheless "induced" by defense counsel. Ibid. As a result, the invited-error doctrine bars defendant from taking a different position and asserting this claim on appeal. See A.R., supra, 213 N.J. at 561.
C.
Lastly, defendant contends that his sentence is "manifestly excessive because after expiration of his prison term [defendant] will be closely monitored for the rest of his life and will be a low risk to re-offend." We begin by reiterating the well-established principle that we do "not substitute [our] judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
Rather, we "affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Lawless, 214 N.J. 594, 606 (2013) (internal quotation marks omitted). In reviewing a sentence, this court requires (1) "that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence" and (2) "that the factfinder apply correct legal principles in exercising its discretion." State v. Roth, 95 N.J. 334, 363-64 (1984) (citations omitted). Sentences are modified only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
The "dominant, if not paramount, goal" of N.J.S.A. 2C:44-1's aggravating and mitigating factors "is uniformity in sentencing." Lawless, supra, 214 N.J. at 607 (internal quotation marks omitted). "Uniformity" in this context means that "similarly situated defendants [do] not receive dissimilar sentences." Ibid. (internal quotation marks omitted). A preponderance of aggravating factors will support a sentence toward the higher end of the sentencing range. Id. at 608; Fuentes, supra, 217 N.J. at 73.
A sentencing judge must "state . . . the factual basis supporting a finding of particular aggravating or mitigating factors[,]" and must "describe the balancing process leading to the sentence." R. 3:21-4(g); State v. Kruse, 105 N.J. 354, 359-60 (1987). This balancing process is qualitative, not quantitative. Kruse, supra, 105 N.J. at 363; Fuentes, supra, 217 N.J. at 72-73. Together, the judge's statement of reasons and explicit balancing process enable meaningful appellate review. Fuentes, supra, 217 N.J. at 74.
In finding aggravating factor three, the trial judge included in his calculus defendant's lack of remorse, an improper consideration. See State v. Marks, 2 01 N.J. Super. 514, 539-40 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986) ("We are of the view that a defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision.").
That was not the judge's only reason, however. He also took into account the prior incident defendant disclosed to T.B. and to the psychologist who authored the ADTC report. That relatively recent allegation of sexual misconduct did support a finding of aggravating factor three. That same circumstance also led the judge to conclude that he could only give defendant "partial credit" for mitigating factor seven, his lack of a criminal history.
We are also satisfied that there was no support in the record for the mitigating factors defendant now asserts should have been found, or any reason that the court should have weighed mitigating factor seven more heavily in the sentencing calculus. As a result, defendant's suggestion that a sentence in a range one degree lower would have been proper has no merit. Such sentences are imposed only where the mitigating factors substantially outweigh the aggravating and the interests of justice call for a downgraded sentence. See State v. Megargel, 143 N.J. 484, 505 (1996). The judge's reasoning that the aggravating factors only "slightly outweigh[ed]" the mitigating was supported by competent, reasonably credible evidence. The correct legal principles were exercised. We see no reason to disturb the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION