Opinion
DOCKET NO. A-4941-12T1
04-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.P.D., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa, and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-05-0215. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant P.P.D. appeals from the judgment of conviction and order for commitment entered after a jury found him guilty of sexually assaulting his niece over the course of five years, beginning when she was approximately six years old. The court sentenced him to an aggregate seventeen-year term of incarceration and imposed an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We use initials to protect the identity of the victim, family members, and witnesses.
On appeal, defendant raises numerous challenges to the court's rulings on the admissibility of certain testimony, its administration of jury selection, comments made by the prosecutor during closing arguments, and his sentence, including the imposition of the parole ineligibility period and a statutory monetary penalty.
After considering defendant's arguments in light of our review of the record and applicable legal principles, we affirm his conviction, but remand for resentencing as to one of the monetary penalties imposed by the court.
I.
A grand jury returned an indictment charging defendant with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one and two); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four).
The facts adduced at trial established that the charges against defendant arose from then-thirteen-year-old A.T.'s 2004 disclosure to her parents, and eventually to a therapist, that defendant had repeatedly sexually abused her beginning in approximately 1998 and continuing into 2002. According to A.T., the abuse occurred during sleepovers she participated in with her cousins — defendant's children — at defendant's homes, where he lived with his wife and their children. Essentially, defendant would go into his daughter J.D.'s room after the children had gone to bed and assault A.T. without waking J.D., who slept in the same bed as A.T.
A.T. was born in October 1991. Her maternal aunt married defendant in 1985, and the two have three children: two daughters — J.D., who is A.T.'s age, and K.D., who is three years their junior — and a son, M.D., four years their senior.
The sleepovers began in 1998 and ended in 2002 after defendant's wife informed A.T.'s parents that defendant had been arrested and charged with sexually abusing three of J.D.'s friends who had also been overnight visitors to defendant's home.
Defendant was arrested on February 26 and March 15, 2002, in connection with allegations made by J.D.'s three friends. On September 5, 2002, he pled guilty to three counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Based on defendant's evaluation at the Adult Diagnostic and Treatment Center (ADTC), the court found his conduct "was characterized by a pattern of repetitive and compulsive behavior," and sentenced him to sixty days in Warren County Correctional Center, followed by a three-year probation term and community supervision for life.
After learning of defendant's arrest, A.T.'s parents asked her if anything inappropriate had ever occurred at defendant's home. Though A.T. denied any such incidents, her parents took her to a counselor in case she needed to talk to someone, but did not tell her why. After three visits, the therapist told A.T.'s parents that she could not be sure if anything had happened to A.T. but that, if it had, A.T. had suppressed the memory.
Two years later, in 2004, A.T. disclosed defendant's assaults to her father after he discovered her instant messaging on her computer with a friend, who told A.T. that she needed to tell her parents about something the messages did not specify. After questioning A.T., her father determined something had happened with defendant, although A.T. did not give him any details. When A.T.'s mother returned home later that day, her father explained what had happened and the two immediately decided to seek further counseling for their daughter. A.T. began counseling with licensed clinical social worker Melinda Strangeway, which continued through the time of defendant's trial.
Her father did not know the specific details of the abuse, other than it occurred more than once, until A.T. reported it to the police in February 2008. Her mother stated she did not question A.T. regarding the details of the abuse and only learned them when she read A.T.'s journal in August 2006.
Over the years, the family, alone and with Strangeway, periodically discussed whether to press charges against defendant and how doing so would affect A.T. It was not until February 2008 that A.T. and her parents notified authorities about defendant's abuse. According to A.T., she and her mother "collectively" decided to report the abuse. She denied that anyone pressured her to press charges.
At defendant's ensuing trial, various witnesses testified on behalf of the State. A police detective testified that, although A.T. stated in her initial report of her abuse that the abuse occurred approximately ten to fifteen times between 1999 and 2002 at defendant's first home, A.T. changed her statement several years later, and said some instances of abuse occurred at defendant's second home, where he moved with his family in May 2000.
A.T. testified to the details of her abuse, which she stated began when she was "[r]oughly six or seven years old" and continued until she was "[a]round eleven years old," and occurred while she was sleeping in her cousin's room, with her cousin asleep in the same bed each time. She testified the incidents began when defendant and his family lived in their "biggest house[] . . . [that] had a lot of garages," which she identified as defendant's first house, and continued after they moved into their second home, but that she did "not know the exact dates" or "the exact years."
The State called A.T.'s parents and Strangeway as witnesses. In addition, it presented an expert who testified regarding the Child Sexual Abuse Accommodation Syndrome — "an idea that was put forth . . . to help people understand" the ways in which children typically respond to sexual assault, including delayed disclosure of the abuse.
The State also called one of defendant's daughters to rebut her mother's claim that she never forbade her children from speaking with A.T.
Although defendant did not testify, he called his wife and son to testify on his behalf. His wife testified that she never observed anything out of the ordinary when A.T. slept over, and that when the children had sleepovers she and defendant would check on the children together during the night. Defendant's son testified as to the layout of the family homes and the activities during sleepovers, and that he observed nothing out of the ordinary during A.T.'s sleepovers.
After considering the evidence, the jury returned a verdict of guilty on all counts. Defendant filed a motion for a new trial, which the court denied.
On March 8, 2013, the court sentenced defendant to seventeen years on counts one and two, subject to NERA and a five-year period of parole supervision, eight years on count three, subject to NERA and a three-year period of parole supervision, and four years on count four, with all sentences to run concurrently. The court subjected defendant to NERA because the jury found that at least one act of aggravated sexual assault occurred after June 2001, the effective date of the relevant NERA provision. The court also imposed fines and penalties, including a $5750 Sex Crime Victim Treatment Fund (SCVTF) penalty pursuant to N.J.S.A. 2C:14-10.
II.
On appeal, defendant argues:
POINT I
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULING PERMITTING MS. STRANGEWAY TO TESTIFY DURING CROSS-EXAMINATION THAT SHE BELIEVED A.T. WAS TELLING THE TRUTH CONSTITUTED A MISAPPLICATION OF THE DOCTRINE OF "COMPLETENESS," VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION, AND AMOUNTED TO AN IMPROPER DE FACTO EXPERT OPINION THAT DEFENDANT WAS GUILTY.
POINT II
THE TRIAL COURT COMMITTED HARMFUL ERROR IN CONDITIONING ITS N.J.R.E. 404(B) RULING PRECLUDING ADMISSION OF OTHER CRIMES OR BAD ACTS EVIDENCE ON THE DEFENDANT'S WAIVER OF HIS RIGHTS TO CROSS-EXAMINATION AND TO PRESENT A COMPLETE DEFENSE.
POINT III
IMPOSITION OF NERA PERIODS OF PAROLE INELIGIBILITY ON DEFENDANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT AND SEXUAL ASSAULT ON COUNTS ONE, TWO, AND THREE WERE UNLAWFUL BECAUSE OF THEIR EX POST FACTO EFFECT ON DEFENDANT.
POINT IV
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE EVIDENCE THAT DEFENDANT DENIED THE CHARGES AGAINST HIM WHEN HE WAS QUESTIONED BY THE POLICE WAS ADMISSIBLE TO SHOW AN INADEQUATE INVESTIGATION BY THE POLICE AND A RUSH TO JUDGMENT BY THE PROSECUTOR.
POINT V
THE TRIAL COURT APPLIED AN INCORRECT PRIMA FACIE EVIDENTIARY STANDARD IN FINDING THAT THE STATE WAS RELIEVED OF ITS BURDEN TO PROVE THE RELIABILITY OF A.T.'S DISCLOSURES BY CLEAR AND CONVINCING EVIDENCE.
POINT VI
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION (NOT RAISED BELOW).
POINT VII
THE TRIAL COMMITTED HARMFUL ERROR IN DENYING TRIAL COUNSEL'S MOTION FOR TWO ADDITIONAL PEREMPTORY CHALLENGES.
POINT VIII
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTIONS (NOT RAISED BELOW).
POINT IX
THE SEVENTEEN (17) YEAR BASE CUSTODIAL TERMS IMPOSED ON DEFENDANT'S CONVICTIONS ON COUNTS ONE AND TWO, ALTHOUGH CONCURRENT, WERE MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT FAILED TO CONDUCT A PROPER AGGRAVATING AND MITIGATING FACTOR.
We have considered each of defendant's arguments and, as addressed more particularly below, find merit only to the one challenging the imposition of the SCVTF penalty.
A.
We consider serially each of defendant's contentions, beginning with his challenge to the trial court's application of the doctrine of completeness, which became an issue during defense counsel's cross-examination of Strangeway. Defendant argues the trial court committed reversible error by permitting Strangeway to testify that she believed A.T. was telling the truth regarding the allegations of sexual assault. We disagree.
Prior to Strangeway testifying, defense counsel challenged the relevancy of her testimony, arguing the State was attempting to bolster A.T.'s credibility. The State explained that Strangeway was being called as a fact witness to refute the defense's theory that A.T. reported the alleged abuse to her parents only to deflect their anger with her over her conduct at school and other behavioral issues. The judge confined Strangeway's testimony to questions regarding the number and frequency of A.T.'s therapy sessions, the topics raised during the sessions, and who raised each topic. The next day, defense counsel confirmed that Strangeway's testimony would "not [be] in the form of any fresh complaint testimony at all," and would be limited to "what was going on during therapy." The State's examination of Strangeway was brief and limited in accordance with the court's instructions.
On cross-examination, defense counsel asked Strangeway if the subject of therapy centered more on A.T.'s frustration with her parents' restrictions and other disciplinary problems than on the alleged abuse. After questioning Strangeway about A.T.'s conflicts with her parents, defense counsel broached the subject of A.T.'s truthfulness. Counsel asked the witness if during her sessions with A.T. she ever concluded the child was not telling the truth. When Strangeway asked for clarification, counsel directed her to review her notes from a specific session. The witness began to testify regarding what the note referenced when counsel interrupted:
[DEFENSE COUNSEL]: [May 4th,] 2005, yes. Towards the bottom of the page.
[STRANGEWAY]: What I was referring to —
[DEFENSE COUNSEL]: Let me ask the question. I'm sorry.
THE COURT: You already asked the question.
[DEFENSE COUNSEL]: Did you make a comment in your notes in regard to [A.T.'s] truthfulness?
[PROSECUTOR]: Your Honor, can she answer the first question?
THE COURT: Yes. The first question was, did you draw a conclusion?
[STRANGEWAY]: I believed she was telling the truth about the abuse. What this was talking about was a specific statement she said to me that she feared that she would be, as a result of being abused, that she could become an abuser.
Defense counsel withdrew his question and asked instead for the witness to read a portion of the entry in her note that started with "does not seem to be." Strangeway started to explain that the note referred to another statement in her notes and, when defense counsel interrupted again, she stated counsel was taking the note "out of context." The judge interjected that "the Rules of Evidence require a whole section to be read in the context," and directed counsel to "either withdraw the question, or review the quote that you want read for completeness." Defense counsel asked for a side bar conference, at which he argued that he understood "[t]he completeness doctrine . . . but that's something for redirect." He pointed out that all he wanted was for Strangeway to read the note to the jury and "if she wants to explain it, fine, but first she gets to read it." The judge directed that counsel could "cross-examine [Strangeway] using a quote, but then she has to be given an opportunity to explain," and Strangeway read the requested quote:
Does not seem to be telling the truth, so keeping track of her lying is hard it appears. . . . She clearly states that she does not want to be here and that they're forcing her to come. . . . She is frustrated by her parents' intrusion into her life.
Defense counsel again objected to Strangeway reading the text preceding the quote, claiming any further explanation would be cumulative. The court disagreed, and Strangeway explained:
The previous line before the quote you asked for is, "she denied ever telling this therapist that she wondered or feared if she would abuse." That's what the lying was, you know, the questioning her telling the truth, was about her, her herself wondering or fearing if she would abuse, go on to abuse.
During oral argument on defendant's later motion for a new trial, defense counsel argued that Strangeway improperly bolstered A.T.'s credibility by saying she believed A.T.'s accusations of abuse. In denying the motion, the trial judge noted that the State properly limited Strangeway's testimony to showing "what a dominant force the abuse was in A.T.'s life and therapy," and that it was the defense that elicited the allegedly improper testimony during cross-examination. Therefore, the court concluded, "the defense can hardly be heard to complain about that testimony when it's the one that brought it out."
"Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." State v. Buda, 195 N.J. 278, 294 (2008). They will be affirmed "absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
The issue raised by defendant requires us to consider the trial court's application of the doctrine of completeness and its impact in this matter. We conclude that the trial judge did not abuse her discretion in her application of the doctrine.
According to the doctrine of completeness:
[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. . . . [It is] the opponent's right, if a part only has been put in, himself to put in the remainder.
[Alves, supra, 400 N.J. Super. at 561-62 (first alterations in original) (quoting State v. Lozada, 257 N.J. Super. 260, 270 (App. Div.), certif. denied, 130 N.J. 595 (1992)).]See also N.J.R.E. 106 ("When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously." (emphasis added)); Alves v. Rosenberg, 400 N.J. Super. 553, 561-62 (App. Div. 2008); State v. Gomez, 246 N.J. Super. 209, 217 (App. Div. 1991) ("The rule provides that where a part of a conversation between a witness and another person . . . has been elicited, the other party may elicit the remaining portions which are relevant to the part which has been adduced."). "When a witness testifies on cross-examination as to part of a conversation[ or] statement, . . . under the doctrine of 'completeness' the party calling the witness is allowed to elicit on redirect examination 'the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up.'" State v. James, 144 N.J. 538, 554 (1996) (quoting Virgin Islands v. Archibald, 987 F.2d 180, 188 (3d Cir. 1993)).
We are unpersuaded by defendant's contention that the judge erred in his application of this rule, especially in light of defense counsel's role in creating the circumstances about which defendant now complains by his attempting to use a small portion of Strangeway's notes to mislead the jury into thinking she found A.T.'s disclosure about defendant to be not credible.
The court's actions were a correct response to defense counsel's blatant attempt to mislead the jury. The judge properly applied Rule 106 and the doctrine of completeness in allowing the witness to explain the irrelevance of Strangeway's note to A.T.'s disclosure of her abuse by defendant. We find no abuse of the court's discretion by allowing the prosecutor to elicit the clarifying testimony immediately rather than requiring the State to wait until redirect examination to do so.
We are not persuaded otherwise by defendant's contention that Strangeway's explanation of her notes bolstered A.T.'s credibility. Any potential for harm was ameliorated by the trial court's instruction to the jury after the jurors requested a read-back of portions of both A.T.'s and Strangeway's testimony. The court instructed the jury, in part:
[T]he issue of a witness's credibility is solely to be decided by you on the evidence you've heard in this trial. You may not resolve the issue of [A.T.'s] credibility based on the opinion or belief of Ms. Strangeway as to [A.T.'s] credibility or truthfulness or untruthfulness. It is you who must decide from all the evidence whether [A.T.'s] testimony was credible or incredible.
This charge to the jury was proposed by defense counsel.
We conclude that the court's firm and timely curative instruction was sufficient to dispel any reasonable claim of prejudice, as it was appropriately swift and pointed. See State v. Vallejo, 198 N.J. 122, 134 (2009). We have no reason to believe the jurors did not follow the court's instruction. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004); see also Williams v. James, 113 N.J. 619, 632 (1989). Accordingly, there was no error warranting reversal.
B.
We turn next to defendant's contention regarding the court's N.J.R.E. 404(b) rulings. Both before and during the trial, the State moved to admit evidence of defendant's assaults against three children that gave rise to his earlier convictions for endangering the welfare of a child. The court repeatedly ruled that, pursuant to State v. Cofield, 127 N.J. 328 (1992), defendant's prior bad acts would not be admissible in the State's case-in-chief. Despite those favorable rulings, defendant argues he was prejudiced by the court's contemporaneous statements regarding the possibility that this evidence could be introduced if the appropriate proofs were presented at trial. He contends the court's comments regarding the potential admissibility of the prior bad acts for purposes of rebuttal caused him so much apprehension that he was unable to pursue a complete defense.
For extrinsic evidence of prior bad acts to be admissible, Cofield requires:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338 (citation omitted).]
In a lengthy written decision, the court analyzed the relevant Cofield factors and found that, while the State had met the second and third factors, with regard to the first factor, the issues of the perpetrator's identity and intent were not genuinely in dispute. However, the court concluded that, depending on the testimony elicited at trial, the issues of defendant's opportunity and the witnesses' bias could be placed in dispute. The court noted that, if defendant elicited testimony that the assaults could not have taken place without someone waking up or hearing them, "it is possible that the State might have the opportunity on rebuttal to introduce evidence of the prior 2002 bad acts" (emphasis added). Likewise, the court said the State may be able to admit the evidence to rebut a claim by defendant that A.T.'s complaint arose from bias or a vendetta. Pursuant to the fourth factor, the court explained that if either situation arose, its decision would hinge on whether the prior bad acts evidence was the only available evidence to refute the defense's claims. The court stated that its decision could be revisited, "depending upon what develops at the time of trial."
Defendant's only particularized complaint on appeal is that, because of the court's indication, he was not able to elicit testimony that A.T.'s father had suggested to her that she was sexually abused by defendant. However, defense counsel never attempted to pursue that line of questioning, and the trial court never prohibited the defense from doing so or ruled in any way that the prior bad acts would be definitively admitted upon the pursuit of any defense. Accordingly, defendant has failed to provide us with a reason for withholding the "great deference" such determinations are ordinarily given on appeal. See State v. Barden, 195 N.J. 375, 390-91 (2008).
Defense counsel nonetheless managed to inject this theory into his opening statement, without objection. During his opening, defense counsel stated that A.T. did not accuse defendant of sexual assault until her father saw her instant messages, and added, "It was her dad who suggested the issue of sexual abuse. It was her dad who suggested [defendant]."
C.
We next address defendant's contention that the court improperly imposed a NERA parole disqualifier. He argues that, because the State failed to prove the exact date when defendant committed the offenses as charged, the jury's finding that at least one of the acts occurred after June 29, 2001 — a requisite to imposing a NERA sentence — "clearly leaves open the possibility, if not the probability, that defendant was found guilty of committing other sexual assaults prior to June 29, 2001." He then concludes that, because the State waived its right to pursue a NERA sentence for the acts committed prior to June 29, 2001, the imposition of a NERA sentence on the post-June 29, 2001 assaults constituted an ex post facto punishment. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3; see also State v. Perez, 220 N.J. 423, 438-39 (2015). According to defendant's theory, because some of the sexual assaults occurred prior to NERA's amendment, the post-amendment assaults were "grandfathered in" and therefore were subject only to the pre-amendment version of the statute. He claims that to hold otherwise violates the prohibition against ex post facto punishment.
An amendment to NERA, effective June 29, 2001, provided in a new subsection that "[t]he court shall impose [a NERA] sentence . . . upon conviction of" certain enumerated crimes, including aggravated sexual assault. L. 2001, c. 129, § 2(d)(7) (codified at N.J.S.A. 2C:43-7.2(d)(7)). Thus, in order for NERA to apply automatically to a conviction for aggravated sexual assault, the act had to occur on or after June 29, 2001. State v. Parolin, 171 N.J. 223, 233 (2002).
This argument is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Suffice it to say, the fact that defendant's offenses occurred before and after NERA's amendment does not prevent the court from imposing sentence under the amended version of the statute for those acts committed after the amendment's effective date, and there was sufficient credible evidence in the record to support the jury's finding that defendant assaulted his niece after June 29, 2001 — for example, A.T.'s testimony that the abuse continued after defendant and his family moved to their second home in May 2000, and that the abuse continued until she was "[a]round eleven years old," which was in 2002.
D.
Defendant next argues that the court erred in failing to permit testimony that he denied any wrongdoing when he was interviewed by the police. He contends his denial should have been admitted through the testimony of the detective to show that the police failed to adequately investigate A.T.'s allegations. Defendant also claims the trial court told defense counsel that his "obligation to defend" prevented defense counsel from referencing defendant's statement in his opening and when cross-examining police witnesses, and contends this "ruling violated his right under the confrontation clause of the Sixth Amendment . . . to present a complete defense." In support, defendant asserts that he was not seeking to admit what he said to police, such that the rule against hearsay might be implicated, just "[t]hat he had been in the police station [and was] confronted [with the allegations,] and [that] he denied it and left."
We find this argument to be without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We add only the following brief comment.
We conclude from our review of the record that defendant never attempted to introduce his denial into evidence, through cross-examination of the detective or otherwise — although his attorney did reference his general denial of the allegations in both opening and closing statements — and, therefore, there was no ruling by the court from which defendant appeals. See State v. Cordero, 438 N.J. Super. 472, 488 (App. Div. 2014).
The court interrupted defense counsel during his opening to prevent him from referring to defendant's out-of-court statement, reminding counsel that his comments must be confined to the evidence that he anticipated would be presented at trial and there was no intention by the prosecutor to admit defendant's statement. See State v. Echols, 199 N.J. 344, 360 (2009) (noting that counsel's comments should be limited to the evidence it is anticipated will be elicited at trial and the reasonable inferences that may be drawn therefrom). Accordingly, the court did not abuse its discretion by warning defense counsel to limit his opening statement to evidence he anticipated would be presented at trial.
E.
Defendant's next argument contends that the trial court committed reversible error during the pretrial Michaels hearing by failing to shift the burden of proof to the State to prove that A.T.'s disclosure of abuse was reliable. We disagree.
See State v. Michaels, 136 N.J. 299, 316-17 (1994) (requiring pretrial determinations of the trustworthiness of a child's statement "made in the course of an investigatory interview").
Pursuant to Michaels, a trial court may order a pretrial hearing to determine "whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." Michaels, supra, 136 N.J. at 320. "[T]he initial burden to trigger a pretrial taint hearing is on the defendant," who "must make a showing of 'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." Ibid. The "grounds that could serve to trigger a taint hearing" include, but are not limited to, interview processes that reflect "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions." Id. at 321. Once the defendant shows sufficient evidence of taint, the burden shifts to the State to show, by clear and convincing evidence, that the child's statements were reliable. Ibid.
"[T]he ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques." Ibid. In making this determination, a court should consider: "(1) the age of the victim, (2) circumstances of the questioning; (3) the victim's relationship with the interrogator; and (4) the type of questions asked." Id. at 318; see also State v. Scherzer, 301 N.J. Super. 363, 464 (App. Div.), certif. denied, 151 N.J. 466 (1997). Other relevant factors include:
(1) the person to whom the child made the statement; (2) whether the statement was made under conditions likely to elicit truthfulness; (3) whether the child's recitation exhibits unusual or above-age-level familiarity with sex or sexual functions; (4) post-event and post-recitation distress; (5) any physical evidence of abuse; and (6) any congruity
between a defendant's confession or statement.
[Michaels, supra, 136 N.J. at 317-18.]
Here, defendant twice moved for a Michaels hearing, arguing A.T.'s father interrogated his daughter and suggested defendant abused her, resulting in a tainted complaint. Addressing both the threshold showing of "some evidence" of taint required for a Michaels hearing and the fresh-complaint evidence the State sought to introduce, the judge found that this case presented a "unique situation" where the two issues were so "closely related" as to not warrant separate hearings. While the judge stated she "was not going to require the defendant to make an initial showing that some color of a claim of taint because he's going to have to ask these questions in conjunction with a fresh complaint hearing anyway," she ultimately reserved decision on whether defendant had made this initial showing, and therefore whether a Michaels hearing was warranted, until the conclusion of the fresh-complaint hearing.
As recently explained by the Court:
[T]he fresh-complaint doctrine . . . . allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated. In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support.
[State v. R.K., 220 N.J. 444, 455 (2015) (citations omitted).]
On the date of the hearing, the State withdrew its request to admit fresh-complaint evidence. The court said it would proceed on hearing defendant on "a threshold showing . . . of a color of a claim of taint." At the end of the hearing, the court concluded it could not "go to trial . . . without a [Rule] 104 hearing to ascertain what it is that the victim here received by way of information from her household, from her cousin, from others from the moment [of] defendant's behavior . . . up until right now with respect to the vilification of defendant." The court found defendant had met his burden of establishing "the color of a claim" of taint and ordered a Michaels hearing, at which it directed defendant would "have to make a prima facie case of taint . . . [before] the burden shifts to the State to rebut that." Defense counsel did not object to the court's characterization of the parties' respective burdens.
At the outset of the Michaels hearing, the court again described the parties' burdens, stating, "The defendant has the initial burden . . . to prove the unreliability of the child's statements. If [he] is able to meet that burden, then the burden shifts to the State to meet the reliability of the testimony of the child by clear and convincing evidence." Again, defendant did not object.
The court proceeded with the hearing, at which A.T. and her parents testified. After considering their testimony, the court found them to be "highly credible" and found "no indication of unreliability" arising from defendant's wife's initial disclosure to the family of the 2002 charges against defendant. The court also found no indication that A.T.'s disclosure to her father was the result of bribery or suggestiveness in his questioning regarding the instant messages. The court concluded "that the defendant has not met the burden of proving . . . unreliability of the child's statements. The State does not have to go forward with any proofs and the testimony that was heard today in this hearing can be presented at trial."
Defendant did not raise any objection at the close of the Michaels hearing and, when he moved for a new trial, did not claim any error in the court's procedure or in its ultimate decision.
Because defendant did not object at trial to the court's attribution of the burden of proof, we review the decision for plain error. See R. 2:10-2. Applying that standard, we conclude that, although the trial court somewhat misstated the proper procedure, its error was not "clearly capable of producing an unjust result." R. 2:10-2.
The court conducted a hearing and considered testimony from all witnesses who had knowledge relevant to defendant's claim of taint. After they testified, the court disagreed with defendant's claim and found nothing analogous to the suggestive interrogations in Michaels, which would have made A.T.'s statements and anticipated in-court testimony unreliable.
We have no reason to disturb that decision, especially given that defendant neither challenges the court's conclusion nor explains how the result of the hearing would have been different had the burden been shifted to the State.
F.
Defendant's next argument, which he raises for the first time on appeal, is based upon the prosecutor's comment during his summation that the absence of proof of physical injury to A.T. did not mean she was not assaulted. Defendant argues the comment was improper and warrants reversal because it was not supported by any expert testimony or other evidence regarding the significance of A.T.'s lack of physical injuries.
We disagree and conclude that defendant's argument is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Suffice it to say, defendant cannot establish there was any error, let alone plain error, based on the prosecutor's comments. See R. 2:10-2; see also State v. Rose, 206 N.J. 141, 157 (2011).
The prosecutor's comments were made in response to defense counsel's summation, in which defense counsel commented on the lack of physical evidence of the "10 to 15 times of brutal sexual assault by [defendant], . . . this very large, overweight man with large hands," and were based upon testimony from the detective who explained why the police did not obtain physical injury evidence from A.T. when she made her disclosure years after the assaults ceased. See State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Significantly, defendant did not object to the comments at trial. See Echols, supra, 199 N.J. at 360.
We conclude the prosecutor's comments did not violate his duties to refrain from employing "improper methods calculated to produce a wrongful conviction," State v. Farrell, 61 N.J. 99, 105 (1972); see also State v. Frost, 158 N.J. 76, 83 (1999), or to "confine [his] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). Defendant has not established that the complained-of comments were "clearly and unmistakably improper, [such that they] substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
G.
We turn next to defendant's contentions regarding improprieties during jury selection. Defendant argues the trial court's failure to excuse two jurors for cause resulted in him being forced to expend two peremptory challenges. We find no merit to this argument.
Defendant's argument arises from events surrounding disclosures by two potential jurors during voir dire. The first potential juror revealed an incident involving a stranger breaking into her family's home and "decorat[ing] her [nine-year-old daughter's] room with undergarments," an incident she considered to be "sexual in nature." The perpetrator was caught, pled guilty, and was incarcerated. Due to this experience, she stated, "Even though I don't have a problem with being part of the jury, I don't think the defense would like me to be." The woman confirmed she would still be able to listen to the evidence and "render a decision based exclusively on the evidence," could be fair and impartial, and understood defendant was "innocent until proven guilty." The court reseated the woman in the pool. The next day, she was selected to replace an excused juror in the box. Defense counsel did not request that she be removed for cause; rather, he exercised a peremptory challenge.
Another subsequently-selected venireman disclosed that he had one friend who was a victim of sexual abuse and another who was an accused perpetrator of sexual assault. The court asked if anything about his experiences would make it difficult for him to be fair and impartial, to which he responded, "I don't think so. I can't guarantee that, but I don't think so." The court asked if he understood the role of a juror and if he could decide the case based on the evidence and without any reference to what his friend may have told him. The juror responded, "I think I could. . . . I understand I can't talk for him and I understand that. It was a problem for him, so I don't want to take anything away from that, but I think I'm okay." When discussing the friend who was an accused perpetrator, he again said, "I don't think so" when asked if that experience "would make it difficult for [him] to be fair and impartial." Defense counsel asked that he explain why he was using phrases like "[I] don't think so" and "I can't guarantee." The juror stated,
I can't say that it has had no affect [sic] on me, but I think I can still be, I'm
saying I think. . . . Because, yeah, I don't know what's working in the back of my mind. I know what's working in the front of my mind. I believe it — it will not have an affect [sic], but I don't know if there's something underneath that's going to affect my thinking.
Defense counsel challenged this venireman for cause, arguing that "he was so equivocal" and did not "know what's in the back of his mind." Counsel was concerned that "during the case what's in the back [of the juror's mind] may come forward based on his experience." The court took a different view, did not find the juror to be "equivocating," and denied defendant's request to excuse the juror for cause. Defense counsel used one of his two remaining peremptory challenges to excuse the juror, and neither the defense nor the prosecution challenged his replacement. The defense then used its final peremptory challenge to excuse a different venireman.
On the next trial date, jury selection continued to seek a replacement for the juror excused by the defense. The defense requested two additional peremptory challenges, arguing that the jurors whose home had been invaded and who the court found did not equivocate should have been excused for cause. In support of his request, defense counsel misrepresented that he asked the court to remove both jurors for cause. The court reiterated that there was no cause to excuse either juror and denied the defense's request for additional challenges. Neither party challenged any of the remaining jurors for cause.
In our review we recognize that "[v]oir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (2000) (citation omitted).
Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror's credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror's demeanor during the course of voir dire — observations which an appellate court is precluded from making.
[Ibid. (quoting State v. Singletary, 80 N.J. 55, 63-64 (1979)).]
In exercising its discretion, "the trial court should become increasingly sensitive to the possibility of prejudice from its failure to dismiss the juror for cause" when a defendant nears "exhaustion of his or her peremptory challenges." State v. Bey, 112 N.J. 123, 155 (1988). This "heightened sensitivity should lead to a more generous exercise of discretion." Ibid.
"[F]or the forced expenditure of a peremptory challenge to constitute reversible error . . ., a defendant must demonstrate that a juror who was partial sat as a result of the defendant's exhaustion of peremptories." State v. DiFrisco, 137 N.J. 434, 470 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
To prove such error a defendant must show (1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.
[Id. at 471.]
Here, defendant fails to meet the first and third requirements. First, defendant never argued that the juror who was a victim of the home invasion should be removed for cause and he had not depleted his challenges at that juncture. More importantly, defendant fails to establish the third factor, that "at least one of the remaining jurors that sat on the jury was a partial juror." See ibid. After defendant exercised his peremptory challenge to the juror he claimed was equivocal, defendant did not challenge for cause any of the remaining jurors, or express any concerns as to the remaining jurors' partiality. Absent proof that a sitting juror was not impartial, we have no cause to find the trial court abused its discretion.
H.
Defendant concludes his challenges to his conviction by asserting the cumulative effect of the trial errors warrant reversal of his convictions. See State v. Jenewicz, 193 N.J. 440, 473 (2008). As we have already determined there was no error, defendant's argument about cumulative error is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
I.
Defendant's last challenges are to the court's sentence. He argues that the trial court abused its discretion by imposing a manifestly excessive sentence, failing to articulate its reasons for imposing a prison term in excess of the statutory minimum, ignoring applicable mitigating factors, and giving improper weight to defendant's prior conviction. He also asserts that the court failed to place any findings on the record when it assessed the SCVTF penalty. Although we conclude the court did not abuse its discretion in imposing sentences above the statutory minimum, we are constrained to remand for reconsideration of the imposition of the SCVTF penalty.
We first address defendant's contention that his sentence was excessive and unsupported by the court's consideration of the aggravating and mitigating factors. See N.J.S.A. 2C:44-1 (a), (b). Defendant argues that the trial court erred in finding aggravating factors three, six, and nine — the traditional "recidivism" factors, see State v. Thomas, 188 N.J. 137, 149 (2006) — because it relied solely upon defendant's prior convictions, and in failing to find mitigating factors seven, eight, and nine. Defendant also claims "the aggravating factors the trial court found present, in conjunction with the applicable mitigating factors the trial court chose to ignore, cannot support [its] imposition of" a sentence above the statutory minimum. These arguments have no merit.
N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law").
N.J.S.A. 2C:44-1(b)(7) ("[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"); N.J.S.A. 2C:44-1(b)(8) ("[t]he defendant's conduct was the result of circumstances unlikely to recur"); and N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense").
A sentencing court must determine which, if any, aggravating and mitigating factors apply, and balance those found applicable. State v. Fuentes, 217 N.J. 57, 72-73 (2014); see also N.J.S.A. 2C:44-1. Once the court has balanced the applicable factors, it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). "At the time sentence is imposed the [court must] state reasons for imposing such sentence . . . [and] the factual basis supporting [its] finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g). Since presumptive terms were eliminated from our criminal code, judges are no longer required "to balance the aggravating and mitigating factors . . . from the fixed point of a statutory presumptive." State v. Natale, 184 N.J. 458, 488 (2005).
Our review of criminal sentences is governed by the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Fuentes, supra, 217 N.J. at 70 (alteration in original) (quoting Roth, supra, 95 N.J. at 364-65).]
Here, the court found aggravating factors two, three, six, and nine, and no mitigating factors. In explaining its finding of factor six, the extent of defendant's prior criminal record, the court noted defendant's history was quite limited, commenting that it was "not an extensive record, and it doesn't cover . . . a long period of time," but concluded that "the nature of the[] offenses [was] significant and harmful." When finding factor three, the likelihood of defendant reoffending, and factor nine, the need to deter, the court noted that, over a period of years, defendant committed numerous assaults against A.T. and his other victims. It also considered that both the 2002 and 2013 assessments from the ADTC found defendant to be a "repetitive and compulsive" sex offender.
Defendant does not challenge the court's finding of aggravating factor two, N.J.S.A. 2C:44-1(a)(2), which addresses the gravity and seriousness of the harm inflicted on the victim.
Defendant claims the court erred by relying on his prior criminal record to impose "extra-minimum base custodial terms" because "defendant's convictions were the result of conduct that occurred either prior to, or during, the same time period of his only other adult criminal conviction." We disagree.
The court went beyond the simple finding of a criminal record and properly based its decision on its overall assessment of defendant. "A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." Thomas, supra, 188 N.J. at 153. We have no reason to conclude that the court's findings were unsupported by the evidence it considered at sentencing.
Defendant next argues that, because he led a "law-abiding" life for the ten-year period between the commission of the instant offenses and the trial, the court should have found mitigating factors seven, eight, and nine. Again based on defendant's 2002 and 2013 assessments from the ADTC, the court refused to find mitigating factors eight, that his conduct was based on circumstances unlikely to reoccur, and nine, that his character and attitude made him unlikely to reoffend. We discern no abuse of discretion in those findings.
As to mitigating factor seven, however, the court should have found it applied, but for reasons other than those argued by defendant. Contrary to defendant's argument, mitigating factor seven does not apply to a defendant's actions between the commission of the offense and the trial. See N.J.S.A. 2C:44-1(b)(7) ("[t]he defendant . . . has led a law-abiding life for a substantial period of time before the commission of the present offense" (emphasis added)). Thus, defendant's reasoning for alleging error here has no basis.
However, pursuant to the statute, the court was required to consider the timeframe prior to the commission of the instant offense. See ibid. Defendant had no convictions at that time and there was no evidence that the assaults against the other children took place prior to defendant's first assault upon A.T. Therefore, the court should have found this factor and then explained why it chose not to assign it significant weight. See State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001). Nevertheless, we conclude the result would have been the same had the court found factor seven technically applied and then discounted it, as opposed to failing to find the factor at all. Due to the court's stated findings regarding the aggravating factors, which were grounded in competent evidence in the record, there is no indication that consideration of mitigating factor seven would have affected the court's overall assessment and balancing of the factors or the resultant sentence. We will not disturb defendant's sentence on this basis. See State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001).
Finally, defendant argues the trial court needed to place particular reasons on the record for why it did not impose the minimum term. We find insufficient merit in this argument to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We add only that defendant's premise is incorrect. There is no presumption that a minimum sentence be imposed. See Natale, supra, 184 N.J. at 487-88 (stating judges are not required to begin their sentencing analysis from any "fixed point" in the statutorily authorized range). While Rule 3:21-4(g) requires the court to state its reasons for imposing sentence and finding certain aggravating and mitigating factors, it does not require the court articulate special reasons why it did not impose the minimum term.
Defendant argues that our decision in State v. Brown, 384 N.J. Super. 191 (App. Div. 2006), supports his position. However, his reliance on it is misplaced. Brown concerns application of the trial court's discretion in imposing a period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Brown, supra, 384 N.J. Super. at 196. --------
We conclude the sentencing court's finding that the aggravating factors preponderated was supported by the evidence, and that its imposition of a sentence slightly above the midpoint of the range does not "shock the judicial conscience." See Roth, supra, 95 N.J. at 364-65.
Defendant also challenges the imposition of the $5750 SCVTF penalty, arguing the trial court failed to consider the relevant factors for its assessment. See State v. Bolvito, 217 N.J. 221, 230-31 (2014). We agree.
N.J.S.A. 2C:14-10(a) provides that "a person convicted of a sex offense, as defined in [N.J.S.A. 2C:7-2], shall be assessed a penalty for each such offense," and sets maximum penalties to be imposed. N.J.S.A. 2C:14-10(a)(1) - (4). In determining the amount to be assessed, a trial court should consider the "nature of the offense" in order to "promote[] the principle of punishment in proportion to the offense and promote[] uniformity in sentencing," and "the defendant's ability to pay the amount assessed." Bolvito, supra, 217 N.J. at 233-34. In order to "apprise the parties, the victim, and the public and [to] facilitate appellate review," the sentencing court should explain on the record its consideration of the relevant factors and its reasons exercising its discretion in setting the penalty amount. Id. at 235.
Here, the court did not explicitly consider either of the Bolvito factors when it imposed the maximum penalties. While the court's consideration of the nature of the offense can be readily ascertained from its earlier discussion at sentencing, there was no contemplation of defendant's ability to pay. Therefore, the penalty should be reconsidered on remand.
In sum, we affirm defendant's conviction and remand for reconsideration of the SCVTF penalty. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION