Opinion
DOCKET NO. A-2707-12T2
04-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL A. WOOD, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-432. James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief). PER CURIAM
Tried to a jury in 2009, Michael A. Wood was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), and received a ten-year sentence. Defendant appealed, and we reversed because the trial court failed to provide proper limiting instructions regarding fresh-complaint evidence at trial. State v. M.A.W., No. A-0788-09 (App. Div. Oct. 25, 2011), certif. denied, 210 N.J. 28 (2012).
Defendant was retried in July 2012 and again found guilty by a jury of aggravated sexual assault. The same judge again sentenced him to a ten-year prison term subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -23. On appeal, defendant presents two arguments:
POINT I
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY THE TRIAL COURT'S RULINGS PRECLUDING DEFENSE COUNSEL FROM ESTABLISHING THAT THE COMPLAINANT'S BOYFRIEND, WHO WAS PRESENT DURING THE ALLEGED CRIME, HAD EXPRESSED DOUBTS ABOUT HER VERSION OF THE EVENTS.
POINT II
THE DEFENDANT WAS DENIED A FAIR TRIAL BY AN IMPARTIAL JURY WHEN THE TRIAL COURT ALLOWED THE ALLEGED VICTIM AND HER MOTHER TO SIT DIRECTLY NEXT TO THE JURY DURING THE CLOSING PORTION OF THE TESTIMONY. THE ERROR WAS COMPOUNDED WHEN THE TRIAL COURT PRECLUDED
DEFENSE COUNSEL FROM COMMENTING ABOUT THEIR OBVIOUS ATTEMPT TO INFLUENCE THE JURY IN HIS SUMMATION.We have considered these arguments and are not persuaded that defendant was denied either his Sixth Amendment right to confront witnesses or a fair trial.
I.
We glean the following facts from the record of the second trial. On June 29, 2007, defendant, his friend Dan, and Dan's girlfriend, T.M., attended a party for T.M.'s brother, who recently returned home after serving a tour of duty in Iraq. Around midnight, T.M., Dan, and defendant walked three or four blocks to Dan's home, where they planned to spend the night. T.M. went to bed in Dan's bedroom, while Dan and defendant stayed up to continue drinking. Dan put a pillow and blanket on his couch so defendant could sleep there. Dan then went to sleep in his bed next to T.M.
At approximately 4:00 a.m., T.M. awoke with defendant on top of her, having sexual intercourse with her. T.M. rolled to her right and noticed that Dan was asleep. She started shaking Dan to wake him and asked, "[W]hat is he doing in here? Why is he in here?" Defendant got up and stood near the foot of the bed and told Dan, "Don't believe her . . . don't believe her, we've been friends for so long."
T.M. ran out of the house and called her mother, C.M., to come and pick her up. Fifteen minutes later, C.M. arrived in a taxi and took T.M. to her car. From there, they planned to drive to the hospital, but T.M. wanted to stop at Dan's house. T.M. saw Dan and defendant in front of the house and she told Dan they were going to the hospital. Dan decided to accompany them.
Dan testified that T.M. was crying, was in a panicked state, and was initially reluctant to tell him she had been raped. After Dan told her he "was getting kind of mad" that she was not responding, T.M. responded "he raped me."
Once at the hospital, T.M. met with a police officer and a Sexual Assistance Nurse Examiner (SANE). The SANE nurse examined T.M., recovered the dress and underwear she had been wearing, and conducted a rape kit test. The nurse testified that she observed injuries on T.M.'s genitalia and described them as reddened, representing "possibly an abrasion, but not a laceration." While T.M. was at the hospital, Dan returned home looking for defendant. Not finding defendant there, he returned to the hospital.
T.M., C.M., and Dan then left the hospital and drove to police headquarters. While in the car, Dan began questioning T.M. as to why she did not scream when she woke up to find defendant raping her. C.M. testified that she asked Dan to get out of the car because she felt that Dan was not being "supportive."
Three days later, T.M. reported to police that she experienced bruising on her left leg. The bruises were photographed and documented at the police station, and later introduced at trial. T.M.'s clothing, underwear, blankets, and sheets were also analyzed by the police lab and introduced at trial.
The parties stipulated to the testimony of a DNA expert from the first trial as to the DNA from the rape kit. Ultimately, the expert concluded that DNA from defendant matched the DNA profile found in T.M.'s underwear. Dan was excluded as a possible contributor from that profile.
II.
Defendant first argues that his Sixth Amendment right to confrontation was violated when the trial judge limited his opportunity to question Dan about his beliefs concerning the incident, and question C.M. about Dan's beliefs. Defendant suggests that Dan did not believe T.M. and that testimony about Dan's beliefs and about what occurred in the car on the way to the police station was "crucial to the defense."
"A trial court's ruling on the admissibility of evidence is 'subject to limited appellate scrutiny.'" State v. Buckley, 216 N.J. 249, 260 (2013) (quoting State v. Buda, 195 N.J. 278, 294 (2008)). Our review is "limited to determining whether the trial court's decisions concerning the evidentiary admissibility of [the witness's] statements constituted an abuse of discretion." Buda, supra, 195 N.J. at 295. An abuse of discretion is "a clear error of judgment" that is "so wide of the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (citations and quotation marks omitted). However, appellate review of a trial court's legal conclusions is plenary. State v. Handy, 206 N.J. 39, 45 (2011).
An error at trial will be considered reversible only if it is "clearly capable of producing an unjust result." R. 2:10-2. "The harmless error standard 'requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012) (quoting State v. R.B., 183 N.J. 308, 330 (2005)).
Defendant sought to question Dan on the issue of T.M.'s credibility. T.M., C.M., and Dan each testified that Dan was asked to leave the car for questioning T.M. and for not being "supportive" of the situation. On cross-examination of T.M., the defense inquired as to the beliefs and motives of other persons in the car:
[Defense Counsel]: Did you tell [Dan] that you were having some relations with [defendant]?
A: I was not having relations with him.
Q: But you did tell him in the car?
A: Yes.
Q: And he didn't believe you, did he?
[Prosecutor]: Objection, Judge.
The Court: Sustained.
[Defense Counsel]: When did he get thrown out of the car by your mother?
A: On the way home from the hospital.
Q: On the way to police headquarters?
A: Yes.
Q: And why was he thrown out of the car?
[Prosecutor]: Objection, Judge.
[The Court]: Sustained. It's irrelevant.
[Defense Counsel]: Why he's thrown out of the car is irrelevant?
[The Court]: It is. Next question, please.
The State later questioned Dan about why he got out of the car.
[Prosecutor]: At some point are you in the car with [T.M. and C.M.]?
A: Yes.
Q: And you get out of the car?
A: I got out, yeah.
Q: Why?
A: Because I was just mad and, you know, my emotions were like raging and I was just being like, you should have screamed or you should have did something so I could have woken up and this didn't happen; and then her mom is like you're not supporting this situation, Dan, get out. I was like all right.
Defendant asserts that the State "must have thought that testimony about why Dan was thrown out of the car was relevant" because the State explicitly asked Dan about it. However, defense counsel never objected to the line of questioning. Defendant complains that he was prohibited from questioning Dan about the incident on cross-examination:
[Defense Counsel]: Were you having any problems with [T.M.] on those days between the 1st and by the time you went to police headquarters?
[Dan]: No.
Q: And you indicate that you got tossed out of the car by her mother because quote, "You weren't supporting the situation?"
A: Right.
Q: Kind of like you didn't believe her, right?On re-direct, the State asked Dan why he asked T.M. why she had not screamed, to which Dan replied, "It was because I could have hopefully, you know, intervened sooner."
A: Well, I was just saying why didn't you, you know, scream sooner or something, like, so I could have woken up.
Q: It seems incredible to you that something like that would be going on right in your own bed, right?
A: It was.
[Prosecutor]: Objection, Judge.
[The Court]: Sustained. It's irrelevant.
Q: Do you consider the situation unusual?
A: Yeah, definitely.
[Prosecutor]: Objection, Judge.
[The Court]: Sustained. His opinion his irrelevant.
[Defense counsel]: No further questions. Thank you.
During the direct examination of C.M., the State asked her why she asked Dan to leave the car:
[Prosecutor]: Who's in the car at this point?
A: The three of us, Dan, myself, and [T.M.].
Q: And are [T.M.] and him having a conversation?
A: They are.
Q: And based on that conversation, do you ask Dan something?
A: I did.
Q: What?
A: I asked him to please leave the car.
Q: Why?
A: I felt he wasn't being supportive at that time. He was questioning her.
Q: Questioning her how?
A: How could this have happened? Are you sure?
Q: Did he ask her about her reaction?
A: Yes, he did. He said how come — why didn't you scream or something.
Q: Okay.
A: Why didn't you, you know, let me know or something. She said —
Q: No, don't tell me what she said. So based on that, you felt he wasn't supportive?
A: Right.
Q: And you asked him out of the car?
A: I did. I did.
Defendant complains that on cross-examination of C.M., his counsel was precluded from following up on this line of questioning. While the court permitted questions as to why C.M. asked Dan to leave the car, it did not allow further inquiry as to whether C.M. felt that Dan did not believe T.M.:
[Defense counsel]: Did you ever see Dan at police headquarters?
[C.M.]: I don't recall.
Q: Well, he certainly didn't go with you, correct?
A: Correct.
Q: He almost made it, but you threw him out of the car before you got there?
[Prosecutor]: Objection, Judge.
The Court: I will permit that.
A: I asked him to leave the car.
Q: Okay. You say he was not supportive. Is that another way of saying he didn't believe [T.M]?
[Prosecutor]: Objection, Judge.
The Court: Sustained. It's argumentative.
Defendant contends that "the trial judge's one-sided evidence rulings gave the jury a one-sided view of the testimony." We disagree and find no abuse of discretion in the trial judge's rulings.
In arguing that Dan's impression of what had occurred was relevant, defendant relies on N.J.R.E. 401, which defines "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Questioning a witness to a crime about what he observed falls squarely within the purview of Rule 401 relevance. However, the questioning here was not addressed to what Dan observed. Rather, counsel sought Dan's opinion as to T.M.'s truthfulness.
The trial judge properly sustained the objection, as Dan's opinion as to whether the assault was unusual is irrelevant. His opinion of the typicality of the assault is not probative of whether it actually occurred. The testimony would not have assisted the jury in "understanding the witness's general testimony or in determining a fact in issue." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 701 (2014). Lay opinion testimony in this regard must be "based on, and supported by testimony about, [the witness's] personal perception and observation." State v. McLean, 205 N.J. 438, 459 (2011). Testimony "on a matter 'not within the witness's direct ken and as to which the jury is as competent as he to form a conclusion'" is impermissible. Ibid. (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
Finally, defendant contends that the trial judge erred by limiting his cross-examination of C.M. when he attempted to ask her whether she thought Dan did not believe T.M.:
[DEFENSE COUNSEL]: Did you ever see Dan at police headquarters?Defense counsel was essentially asking C.M. whether she thought that Dan did not think T.M. had been truthful when she claimed that defendant sexually assaulted her. Unlike the prosecution, which asked C.M. about her own thoughts, defendant asked the witness about the unexpressed thoughts of another witness about the credibility of a third witness. We find no abuse of discretion in the trial court's ruling.
[C.M.]: I don't recall.
[DEFENSE COUNSEL]: Well, he certainly didn't go with you, correct?
[C.M.]: Correct.
[DEFENSE COUNSEL]: He almost made it, but you threw him out of the car before you got there?
[PROSECUTOR]: Objection, Judge.
THE COURT: I will permit that.
[C.M.]: I asked him to leave the car.
[DEFENSE COUNSEL]: Okay. You say he was not supportive. Is that another way of saying he didn't believe her?
[PROSECUTOR]: Objection, Judge.
THE COURT: Sustained. It's argumentative.
Defendant complains that his counsel was unable to establish that in the first trial, T.M. testified that Dan did not believe her version of the sexual assault. In the first trial, T.M. specifically testified that Dan was "doubting me, doubting the story that I had told him," that he "didn't like" the story that defendant was having sex without her consent and against her will, and that "[h]e didn't want to believe at that time." Defendant asserts that this testimony by T.M. demonstrates Dan did not find her accusation of defendant credible. Defendant argues this is a critical fact, because if T.M. was not "physically helpless," under N.J.S.A. 2C:14-2(a)(7), he could only have been convicted of "the lesser offense of sexual assault by an act of sexual penetration," contrary to N.J.S.A. 2C:14-2(c)(1).
Defendant did not attempt to introduce this testimony at the second trial. Even if he had, the proffered testimony of T.M. that Dan did not believe her story would not have been admissible. Asking a witness to assess the credibility of another witness's testimony is "an encroachment upon the province of the jury." State v. Frisby, 174 N.J. 583, 595 (2002) (internal quotation marks omitted).
We are satisfied that the trial judge did not violate defendant's Sixth Amendment right to confrontation by sustaining the State's objections to improper cross-examination questions.
Defendant next argues that he was denied a fair trial because the trial judge permitted T.M. and C.M. to sit near the jury during testimony, after they testified. Defense counsel objected during trial that it was "inappropriate" for T.M. and C.M. to be "sitting right next to the jury." Counsel estimated that their seats were approximately three feet away from the jurors at the end of the jury box. The judge ruled that T.M. and C.M. "can sit anywhere they want. There's no contact with the jury. They are just sitting there watching . . . . It's a public courtroom."
When defense counsel asked to comment in his summation on where they were sitting and claimed "it's an obvious ploy," the judge again stated "[i]t's a public courtroom. Anybody can come in and watch a trial." The judge precluded defense counsel from commenting in summation on where T.M. and C.M. sat during the trial because it was "not evidence in the case."
Following a court recess, C.M. and T.M. returned to their seats next to the jury, and defense counsel renewed his objection. Again, the judge declined to order T.M. and C.M. to move unless they attempted to interact or interfere with the jury. Defense counsel again asked that he be allowed to comment in summation on where they were sitting, claiming they were "communicating nonverbally" by sitting so close to the jury. The judge denied the application, and observed that the victim and her family were "merely . . . sitting there silently and watching the proceedings, . . . and so long as no one in the courtroom . . . attempts to communicate by verbal or nonverbal means, there is nothing inappropriate about that."
Defendant now complains that the judge's "inaction" endangered his right to a fair trial, and that the judge incorrectly ruled that he was "powerless to do anything unless he saw some form of improper communication between the witnesses and the jury." We reject both assertions.
"It is axiomatic that an impartial jury is a necessary condition to a fair trial." State v. Papasavvas, 163 N.J. 565, 584 (2000). "As a result, it is beyond question that a judge should prevent a jury from being influenced by outside sources during its deliberations[.]" State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005).
Rule 1:2-1 provides that "[a]ll trials . . . shall be conducted in open court unless otherwise provided by rule or statute." Defendant relies on State v. Cuccio, 350 N.J. Super. 248 (App. Div.), certif. denied, 174 N.J. 43 (2002), to argue that T.M. and C.M. should have been segregated from the jury. In Cuccio, we held it was improper for a judge to exclude all spectators including defendant's family and the victim's family from the courtroom during jury selection, and remarked that "the judge could have instructed the families and other spectators not to mingle with the potential jurors or say anything concerning the case that might be overheard by them." Id. at 266.
Here, the judge advised the jury on several occasions that they were not to "discuss the case with anyone . . . at any point during the trial" and if "anyone should try to approach you or influence your thinking or discuss the case with you in any way . . . you are to alert either myself or my staff about that." Defendant has not identified any instance of improper influence upon the jury. Nor is there any indication that either C.M. or T.M. made any gestures, eye contact, or otherwise attempted to "mingle" with jurors.
Defendant also relies on State v. Kuchera, 198 N.J. 482 (2009), to assert that the proximity of C.M. and T.M. to the jury box was prejudicial, and that a "courtroom arrangement is inherently prejudicial when an unacceptable risk is presented of impermissible factors coming into play." Id. at 494-95. The issue in Kuchera was whether a defense witness would testify in restraints or in prison garb. Id. at 486. The court did not address where a witness, who has already testified, may sit in the courtroom.
Defendant presents no authority for his proposal that the trial judge should direct where spectators at trial may or may not sit. He relies instead on cases that forbid witnesses from directly interacting with the jury, which are inapplicable. There is no evidence that C.M. and T.M. had any association with the jurors, other than sitting a few feet away during summations.
Generally, we afford trial judges broad discretion to assure that the proceedings are conducted fairly and that a verdict is rendered impartially by the jury. State v. Rose, 112 N.J. 454, 541 (1988). In Rose, the defendant was tried and convicted for the murder of a police officer. Id. at 469. During the trial, other police officers, dressed in uniform, sat in the courtroom as spectators. Id. at 541. The defendant complained that they were there "to send a message to the jury," but the trial judge responded that the officers had a right to be there and he could not tell them how to dress for court. Ibid. The Supreme Court disagreed, noting that it was within the judge's discretion to impose limitations on the dress of the officers. Ibid. Nevertheless, the Court did not find any "prejudicial error in the court's ruling," and did not find the trial court abused its discretion by allowing the officers to come to court in uniform. Id. at 541-43.
We have repeatedly recognized that a trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so. State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). Thus, it was well within the trial judge's discretion to permit T.M. and C.M. to sit where they wanted.
Nor was it an abuse of discretion to prohibit defense counsel from commenting on where T.M. and C.M. were sitting, as it was not evidence in the case. "The scope of defendant's summation argument must not exceed the 'four corners of the evidence' . . . [which only] include the evidence and all reasonable inferences drawn therefrom." State v. Loftin, 146 N.J. 295, 347 (1996) (citations omitted).
For the foregoing reasons, we find no abuse of discretion in permitting T.M. and C.M. to sit near the jury box during closing arguments, and in preventing defense counsel from commenting on where they were sitting.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION