Opinion
DOCKET NO. A-4726-12T1
10-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. MELLISSA WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-12-2850. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from her convictions for second-degree burglary, N.J.S.A. 2C:18-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. We reverse the conviction of endangering the welfare of a child, but otherwise affirm.
The victim and her son lived in an apartment with D.S. and D.S.'s wife, C.P. Defendant went to the apartment to accuse the victim of having an affair with defendant's husband. Defendant arrived at the apartment, confronted the victim, and attacked the victim with a box-cutter in front of C.P. and the victim's son. Although the victim's son was not injured, the victim sustained significant slash wounds. Defendant and C.P. then ran out of the apartment.
Ten minutes later, Officer Christopher Reed responded to the incident, found the front door of the apartment broken into, and observed the victim bleeding severely. The victim described the attacker as a woman, five feet eight inches tall, 180 pounds, light-colored hair, light-brown eyes, and wearing no eyeglasses. The victim added that defendant wore her hair up in a du-rag-type scarf. Police interviewed D.S., who arrived at the scene after the incident, and learned that D.S. believed his cousin "Mellissa" had attacked the victim.
The victim did not know who attacked her, but believing C.P. and the attacker to be friendly, she searched C.P.'s Facebook account to see if it contained a picture of the perpetrator. The victim and her mother looked through pictures available through C.P.'s Facebook account, and the victim identified defendant as the one who assaulted her. The victim contacted the police, who arrested defendant and charged her with committing the offenses.
A judge and jury tried the case for six days between October 2012 and December 2012. The jury found defendant guilty as charged. The judge imposed an aggregate five-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues the following:
POINT I
THE VICTIM'S IDENTIFICATION OF DEFENDANT MADE UNDER HIGHLY SUGGESTIVE CIRCUMSTANCES SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT II
CERTAIN COMMENTS BY THE PROSECUTOR IN HER SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially raised below).
POINT III
THE INCOMPLETE AND ERRONEOUS JURY INSTRUCTIONS MANDATE THE REVERSAL OF DEFENDANT'S CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD. (Not raised below).
POINT IV
THE DEFENDANT'S MOTION FOR NEW TRIAL ON THE GROUNDS THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED BY THE COURT.
POINT V
THE COURT SHOULD HAVE IMPOSED A PROBATIONARY CUSTODIAL SENTENCE UPON DEFENDANT.
I.
We begin by addressing defendant's contention that the judge erred by denying her motion to suppress the victim's out-of-court identification.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
In State v. Chen, 208 N.J. 307 (2011), our Supreme Court outlined the approach that judges must use to determine the admissibility of identification evidence when there is suggestive behavior but no police action:
(1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant hasThe initial threshold of suggestiveness must be "highly suggestive circumstances as opposed to simply suggestive conduct." Ibid. The Court reasoned that "if [a defendant] cannot show highly suggestive private action, [then] it is unlikely [the defendant] will prevail at the hearing." Ibid. Raising this threshold avoids unnecessary pretrial hearings. Ibid.
the burden of showing a very substantial likelihood of irreparable misidentification.
[Id. at 327.]
Applying these standards, we see no error. In this case, a hearing to assess the reliability of the identification was held at the State's request. The judge conducted the hearing, took testimony from the victim and her mother, and concluded that the pretrial identification was reliable. We conclude that there was sufficient credible evidence in the record to support the judge's finding that the identification was reliable, and that defendant failed to meet her burden of demonstrating a very substantial likelihood of irreparable misidentification.
First, the victim had a clear view of defendant and was in close proximity, within inches at times, of defendant's face during the attack. The victim then gave a detailed description of defendant to the police ten minutes after the incident.
Second, the victim picked out defendant's photograph within hours of the assault from C.P.'s Facebook page, and was fully confident in that identification. The victim was unaware whether defendant's picture would appear on C.P.'s Facebook account, and the victim chose only defendant's picture from those listed in the Facebook account. Defense counsel also cross-examined the victim and her mother at trial regarding the victim's pretrial identification of defendant.
Finally, the record shows that the judge provided appropriate jury instructions on the identification in accordance with State v. Henderson, 208 N.J. 208, 296 (2011).
II.
We reject defendant's contention that the prosecutor deprived her of a fair trial by making three purportedly improper comments in her summation.
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." 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).
The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Indeed, our Supreme Court recognizes that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (alteration in original) (quoting Bucanis, supra, 26 N.J. at 56).
Under this standard, we conclude that the three remarks were not so improper or egregious as to deprive defendant of a fair trial. We address each comment separately.
As to the first comment, the assistant prosecutor stated:
Why does [the victim] say that the defendant's eyes are light brown?Defense counsel immediately objected that there was no evidence that defendant wore contact lenses. The assistant prosecutor maintained that she was making a "common sense" argument. The judge ordered her to refrain from additional comment and reminded the jury that the statements were not evidence and that they were to only consider facts articulated on the witness stand. This comment was not so improper as to impact defendant's right to a fair trial, and the court's curative instruction was sufficient to address any impropriety that may have existed.
Ladies and gentlemen, we have three photos here and for those of you who wear glasses, do you also wear contacts? Do you know people who wear contacts and glasses? Do you know people who wear colored contacts? Do you know people who wear color contacts just because it's appealing?
[The victim] said that the eyes are light brown. There's a logical explanation for that.
The defendant says she wears glasses. She also wears glasses although the Facebook photo, arrest photos, driver's license photos, belie that.
There are "No Restrictions" on her driver's license but as soon as she takes off her glasses for vanity reasons when she takes a photo, assume the [Motor Vehicle Commission] missed it, isn't it conceivable that she wears colored contacts?
As to the second comment, the assistant prosecutor stated: "Ladies and gentlemen, let's take a look at [defendant. She] has two children with another man. She couldn't seal the deal with him and she goes and she meets [her husband]." At side bar, defense counsel objected to the phrase "seal the deal." The prosecutor offered to rephrase it, and the court instructed the prosecutor to rephrase in the presence of the jury. Here, there was no impropriety, counsel rephrased, and the court made sure the jury knew the comment was rephrased.
As to the third comment, the assistant prosecutor stated:
The first man, she didn't get him to marry her and then [the husband], he has a couple of kids, one or two kids and [the husband] says she's with him for four years, gets him to marry her, then she has six more children with him, or six total children with him.We apply the plain error standard to this comment because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
[Defendant] is so willing to defend her man to keep him from some woman getting to him.
I submit to you that she will do something. She stays with him even after she finds out he has convictions for sexual contact and endangering the welfare of a child. She stuck it out with her man and she's going to stick it out now and no woman is going to take him away from her.
"The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84. As a general matter, we also note that the failure to object deprived "the court of an opportunity to take curative action." Ibid. Applying these standards, we conclude that there was no plain error regarding the third comment because it was incapable of producing an unjust result.
III.
We agree with defendant's contention that the judge gave a flawed jury instruction on the charge of endangering the welfare of a child. As a result, we reverse this conviction and remand the endangering offense for a new trial.
Defense counsel did not object to the jury charge even though defendant had the obligation "to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to object creates a "presum[ption] that the instructions were adequate." Id. at 134-35. Thus, we review this claim under the plain error standard. R. 2:10-2.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).
Regarding the charge of endangering the welfare of a child, the court here instructed the jury that
the State must prove beyond a reasonable doubt is that the defendant knowingly caused the child . . . harm that would make the child abused or neglected.The judge was obligated to define an "abused or neglected" child by referring to N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21. See Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Third Degree" (Apr. 2014). Here, the State claimed that defendant endangered the welfare of the victim's child, by attacking the child's mother with a box cutter in his presence. This omission left the jurors to speculate about what "abused or neglected" meant. Reading the charge as a whole, we conclude that the failure to define these crucial terms was clearly capable of producing an unjust result. We therefore reverse the conviction of endangering the welfare of a child and remand for new trial on that charge.
. . . .
[T]he State must prove beyond a reasonable doubt . . . that the defendant knew that her conduct would cause the child harm that would make the child abused or neglected.
IV.
Defendant argues that the judge erred by denying her motion for a new trial. We do not reverse a trial court's denial of a motion for a new trial based on a verdict that is against the weight of the evidence "'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Perez, 177 N.J. 540, 555 (2003) (quoting R. 2:10-1). We must consider the totality of the evidence in the light most favorable to the State. Id. at 549. Applying these standards, we see no error.
Defendant argued primarily that the verdict was against the weight of the evidence due to inconsistencies among the trial witnesses. Giving the State all favorable inferences, the judge emphasized that "the ultimate issue of credibility is one for the [j]ury to determine." The court specifically found victim's "consistent" and "very clear" identifications of defendant as her attacker to be particularly striking and "very powerful."
V.
We reject defendant's argument that the judge should have imposed a probationary sentence.
In sentencing, the trial court must consider the relevant aggravating factors and may consider the relevant mitigating factors. See N.J.S.A. 2C:44-1a and -1b. The court must then "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989).
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215-16, 220. We are "bound to 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 [were] supported by competent credible evidence in the record." Id. at 215; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must defer to trial judges in sentencing decisions).
There is a presumption of imprisonment where a defendant is convicted of a second-degree crime unless, "having regard to the character and condition of the defendant, [the court] is of the opinion that . . . imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d. The presumption can be overcome only in rare cases, and the "serious injustice" exception is an extremely narrow one, only used in extraordinary and unanticipated cases. State v. Evers, 175 N.J. 355, 389 (2003) (citation and internal quotations omitted). Unless a defendant satisfies the serious injustice standard, the trial court has no discretion to impose a probationary custodial term for a person convicted of a second-degree crime. State v. O'Connor, 105 N.J. 399, 410 (1987).
Here, the trial court found that mitigating factors N.J.S.A. 2C:44-1b(7) and (11) outweighed aggravating factors N.J.S.A. 2C:44-1a(3) and (9), thus, the judge imposed the lowest sentence for the second-degree conviction subject to NERA. The judge had no discretion to impose a probationary custodial term because defendant did not meet the serious injustice standard. At sentencing, the judge referenced testimony from the State's medical witness that "you couldn't have a more serious non-fatal type of injury." Thus, the need to deter others from such conduct is established in this case.
Accordingly, there is no reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 365.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings in conformity with this opinion. 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