Opinion
DOCKET NO. A-3158-12T1
04-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GUSTAVO MAYA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-10-2346. Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals his conviction for sex offenses committed against a minor, arguing the trial judge: (1) erroneously permitted the State to exercise a peremptory challenge on the basis of race; (2) mistakenly admitted testimony from a medical expert that incorporated inadmissible hearsay and otherwise constituted a net opinion; and (3) imposed an excessive sentence. We reject these arguments and affirm.
In addition, defendant argues that his trial attorney was ineffective for failing to object to the medical testimony. Because a resolution of that contention requires evidence outside the record, we do not reach this issue.
At trial, Olive (a fictitious name) testified that on July 4, 2006, when she was eleven years old, defendant — her mother's boyfriend — pulled down her pants while they were alone despite her protestations and touched her "private parts" with his hand. She testified her mother walked in the room and saw this. Olive's mother similarly testified that, after a taking a brief nap, she walked into the room and observed defendant and Olive, who was standing with her pants around her thighs. When Olive's mother asked, "what's going on," defendant replied he was scolding Olive. He claimed he was not doing anything, but he also asked for forgiveness. Olive's mother responded that she would not forgive him, and told him to leave; defendant left a few minutes later. After defendant left, Olive told her mother that defendant was touching her "[i]n her vagina," and that this had happened on more than one occasion. Olive also testified defendant had on previous occasions either penetrated or touched her "private areas" with both his hand and penis. Olive testified she had not previously told her mother about defendant's conduct because she was afraid.
The matter was brought to the attention of police the next evening. Detective Jesus Ramirez of the Monmouth County Prosecutor's Office interviewed Olive at that time. The recorded interview and a transcript were moved into evidence.
In addition, Dr. Gladibel Medina was called by the State and qualified as an expert in the field of pediatrics. Dr. Medina testified that on July 25, 2006, she evaluated Olive, who said "she was worried about her body, because she had experienced some pain" during urination "because of . . . the touching that occurred [on] . . . those areas of her body." Dr. Medina testified that after conducting a physical examination, she observed no abnormalities, but she also explained it was possible the symptoms had resolved on their own within days of their occurrence. Dr. Medina concluded that the symptoms described by Olive were caused by penile contact to her genitals.
Defendant did not testify.
The jury found defendant guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 25, 2008, the judge sentenced defendant to an eighteen-year prison term with an eighty-five percent parole disqualifier.
Nearly five years later, we granted defendant's motion for leave to file a notice of appeal out of time. In this appeal, defendant argues:
I. THE TRIAL COURT ERRONEOUSLY RULED THAT THE STATE WAS NOT REQUIRED TO GIVE REASONS FOR ITS USE OF A PEREMPTORY STRIKE TO REMOVE THE ONLY LATINO JUROR FROM SERVING IN THIS CASE.We find insufficient merit in Point III to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We reject the other arguments for the following reasons.
II. THE TRIAL COURT SHOULD HAVE STRICKEN DOCTOR MEDINA'S TESTIMONY ON THE GROUND THAT IT WAS HEARSAY NOT COVERED BY N.J.R.E. 803(c)(4), THAT IT DID NOT MEET THE REQUIREMENTS OF N.J.R.E. 702, AND THAT WHAT SHE OFFERED WAS INADMISSIBLE AS A NET OPINION. IN THE ALTERNATIVE, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE HER TESTIMONY (Not Raised Below).
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
I
Defendant claims the trial judge erred in allowing the prosecution to impermissibly exercise a peremptory challenge on the basis of race. The prosecution had excluded Juror Number Ten, who according to defense counsel was the only "Latino speaking" juror and was of South American, Central American, or Caribbean origin. Defendant argues that because he had sufficiently raised an inference of racial bias, the State was required to provide a non-discriminatory purpose for the use of the peremptory challenge, and the judge erred in not requiring that the State provide that showing.
At the time of this trial, the law required that, when considering a challenge to a peremptory challenge on the basis of race, the contesting party was obligated to demonstrate a prima facie showing that the challenge was exercised on the basis of race or ethnicity through the production of evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. State v. Gilmore, 103 N.J. 508, 535-36 (1986). In order to establish an inference of discrimination, courts then looked for a pattern of discrimination involving multiple peremptory challenges to members of cognizable groups. See, e.g., State v. Watkins, 114 N.J. 259, 266 (1989). Based on these principles, defendant was unable to establish a pattern through the State's challenge of a single juror, even if he was "the only Latino speaking individual . . . in this jury pool." In responding to defendant's argument, the trial judge said:
Well, I don't know if that's — first of all, I don't think it establishes a pattern. The fact that [the juror] spoke Spanish, you know, I don't think that's an issue. I don't know what country he's from. I don't know. I don't think he stated that. So I don't even know if he is Mexican or not.The fact that the juror's last name, Acedevo, suggested he was, as defense counsel argued, "either of South American origin, Central American origin, [or] Caribbean [origin]" was of no great moment in light of the state of the law at that time. As the judge concluded, "[w]ell, as I say, I didn't see any pattern of racial discrimination or gender discrimination. And I'm not going to ask the [p]rosecutor to state her reasons for that challenge because I don't think that under the law at this particular point she has to do so." The judge's determination was in accord with legal principles applicable at the time.
The record suggests that both the victim's and defendant's families were from Mexico.
Defendant's reliance on more recent authorities — Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175, 181 (2008); State v. Osorio, 199 N.J. 486, 492-93 (2009); State v. Pruitt, 430 N.J. Super. 261, 272 (2013) - is misguided because these cases were decided after defendant's trial had concluded. As the Court observed in Osorio, the preexisting three-step test set forth in Gilmore, supra, 103 N.J. at 535-36, which guided the trial judge here, required "updating" because the burden imposed on defendants had proven too onerous. Osorio, supra, 199 N.J. at 502. These more recent decisions marked a significant change in the state of the law that existed when defendant was tried. Because defendant was convicted prior to Osorio, and because he did not have an appeal pending when Osorio was decided, we decline to consider defendant's argument based on these "updated" authorities.
It is now understood that a challenger is not required to demonstrate a pattern of discrimination. See Snyder, supra, 552 U.S. at 478, 128 S. Ct. at 1208, 170 L. Ed. 2d at 181. In Pruitt, we held that an inference of racial discrimination has been demonstrated "whenever a prosecutor uses a peremptory challenge to excuse the only qualified member of a cognizable group in the jury panel, where the defendant or the victim is also a member of that same group, and where the other Osorio factors are met." 430 N.J. Super. at 272.
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To the extent defendant may argue that the judge erred in how he handled the objection to the peremptory challenge based on the legal principles then applicable, we find insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
II
Defendant's argument regarding the admission of aspects of the medical testimony is also without merit, particularly when examined pursuant to the plain-error rule, because the argument was not presented in the trial court. In such an instance, we will not reverse for this reason unless the event was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
Defendant argues that Olive's statements to Dr. Medina did not fall within the N.J.R.E. 803(c)(4) exception to the hearsay rule, claiming the statements were made in preparation for litigation and not for the purpose of obtaining medical diagnosis or treatment. The State responds that Dr. Medina's testimony was proper because Olive's statements, as conveyed by Dr. Medina, were made in good faith for the purpose of seeking diagnosis and treatment.
The admissibility of Olive's statements when conveyed to the court by Dr. Medina, turns on N.J.R.E. 803(c)(4), which provides an exception to the hearsay rule for the following type of evidence:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
To be sure, the examination by Dr. Medina was in preparation for this criminal prosecution, but Olive also testified that she was concerned about the medical consequences of defendant's actions. In light of the latter reason for seeking Dr. Medina's advice, there was a foundation for the admission of the testimony. Moreover, defendant's failure to raise this objection at trial precluded the court's ability to further explore the application of this hearsay exception.
We lastly note that defendant's argument that Dr. Medina's testimony amounted to a net opinion is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Dr. Medina's opinion that Olive's symptoms were caused by penile/genital contact was not a "net opinion" because she provided that opinion after examination of Olive. The sufficiency of that examination or the persuasiveness of the opinion was a matter for the jury to decide.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION