Opinion
DOCKET NO. A-5900-13T2
02-10-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLARENCE J. BECKETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Whipple. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1362 and 06-10-0964. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Clarence Beckett, appeals from a May 16, 2014 judgment of conviction for two counts of second-degree sexual assault and two counts of fourth-degree criminal sexual contact. We affirm.
On January 18, 2004, defendant picked up P.C. from her home so they could watch a movie at his house. P.C. and defendant had known each other for two years and had gone on a few dates. When defendant and P.C. entered his home, defendant locked the door behind him with a key he put into his pocket.
We use initials to protect the identities of the victims.
According to P.C.'s trial testimony, once inside the home, defendant attempted to kiss her and touch her leg. She told him to stop, but defendant continued. P.C. attempted to leave, defendant got up, pushed her on to the couch, and she resisted. P.C. tried to push defendant off, but he was too big and flipped P.C. on to her back; he sat on top of her with her wrists pinned above her head. Defendant, with one hand, began taking off P.C.'s shirt and bra and began kissing and fondling her breasts, and biting her nipple. P.C. told him to stop, but he would not. Defendant dragged P.C. to a chair in an attempt to compel her to give him oral sex. When she refused, defendant pushed her to the floor and penetrated her vagina with his penis. P.C. saw a gold wrapper on a chair, which she knew was a condom wrapper. After defendant attempted to have anal sex, defendant flipped P.C. on her back and penetrated her vagina with his penis again. When he was finished, defendant got up and left the room.
P.C. dressed and attempted to unlock the door when she remembered defendant locked the door. She asked if him if he was going to drive her home. Defendant and P.C. exited his home and began walking in the direction of his car, when P.C. ran into a nearby apartment building and hid in an inside hallway as she called 9-1-1 to report the assault. While on the phone with the 9-1-1 operator, P.C. was told the responding officers had apprehended someone and asked her to meet police outside to make an identification. P.C. was thereafter transported to Trinitas Hospital, where a S.A.N.E. examination was performed and a rape kit was completed. P.C. was eventually transported to the police station to make a statement.
Acronym stands for "Sexual Assault Nurse Examiner."
Defendant had been stopped by police and placed in the back of the patrol car where he was advised of his Miranda rights. Defendant also signed a waiver form and a Permission to Search Form for his house. When told there had been a complaint of sexual assault against him, defendant acknowledged there had been a sexual encounter but denied a sexual assault. Defendant led officers to his home and pointed the officers to the condom he used during the sexual encounter. He was then transported to the police station where he gave a voluntary statement, admitting there had been a sexual encounter. A complaint was issued charging defendant with sexual assault.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
According to a second assault victim, M.H., she left work in Elizabeth on June 5, 2004, around 7:00 p.m. and was walking to the bus when she saw a "friend" whom she knew as "Caliber" and later identified as defendant. Defendant asked if she needed a ride home, and she responded yes. While driving, defendant told M.H. he needed to stop at his parent's house because they were out of town, and he wanted to check up on the house. Defendant parked in the driveway, the two walked into the house and proceeded to his room. While in his room, defendant asked M.H. to take off her shoes because he did not want shoes on the carpet. Defendant then locked the door. When M.H. told defendant she wanted to go home, he told her he just wanted a hug. M.H. hugged defendant, and he began to touch her legs, stomach, and butt. M.H. again stated she wanted to go home, but defendant wanted to show her his radio system. Defendant threw M.H. on to the couch then pulled her to the floor. M.H. told him to stop as he pulled her pants down. M.H. testified defendant pulled a pocket knife, with the blade closed, from one of his drawers and said "I will hurt you if you don't give it to me." Defendant also took a small tape recorder and condoms out from his drawer.
M.H. testified defendant said, "you're not going to look this good and not give it to me, I know you do" and "you don't have no idea what I'm capable of." While holding M.H. down, defendant inserted his penis in her vagina. M.H. told defendant, "can you, please, not mess up my insides, please, I will give it to you." Defendant attempted a second assault, but when the tape recorder would not work, he went to the bathroom to take a shower. Defendant made M.H. go in the bathroom with him, took her clothes, and locked the door. After defendant showered, he gave M.H. her clothes back and drove her home. While driving, defendant kept saying that "he wasn't a rapist," "he just likes it when [M.H.] say[s] no," and "[i]t turns him on."
When M.H. returned home, she told her guardian what had happened, and the police were called. According to her guardian, M.H. was hysterical and kept repeating, "I asked him to stop, I told him, I kept saying no." M.H. went to Trinitas Hospital where a S.A.N.E. examination was performed and a rape kit completed. She gave a statement to the police and identified defendant as the man who assaulted her from a photographic array.
Defendant was arrested on June 9, 2004, and when told the charge, he responded by saying he was "already going to court on that charge." A search of defendant's house and car were executed pursuant to a search warrant. Condoms, a used condom in the trash, and a tape recorder were recovered from Beckett's room. No knife was ever taken into evidence. Defendant was indicted in November 2006 for one count of first-degree aggravated assault, N.J.S.A. 2C:14-2(a)(4), two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and two counts of third- and fourth-degree criminal sexual contact upon M.H., N.J.S.A. 2C:14-3(a) and (b), as well as fourth-degree criminal sexual contact upon P.C., N.J.S.A. 2C:14-3(b).
Prior to the trial, defendant moved to sever the counts of the indictment, which was deferred while a report was prepared concerning defendant's competency to stand trial. Defendant was found competent to stand trial and the severance motion was denied. The case proceeded to a jury trial on October 4, 2013. The jury convicted defendant of sexual assault of M.H. and P.C., and criminal sexual contact of M.H. and P.C.
Defendant was sentenced on May 16, 2014. The court merged count four, criminal sexual assault of M.H., into count two, sexual assault of M.H. The court merged count six, criminal sexual assault of P.C., into count five, sexual assault of P.C. Defendant was sentenced to eight years with an eighty-five percent period of parole ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 to -9, and each count was to be served consecutively. This appeal followed.
Defendant raises the following arguments on appeal:
I. THE TRIAL COURT ERRED, HIGHLY PREJUDICIALLY, IN DENYING SEVERANCE OF CHARGES PERTAINING TO TWO SEPARATE INCIDENTS.
II. THE STATE WAS PERMITTED TO REFRESH THE RECOLLECTION OF A KEY WITNESS TO AN EXTENT THAT WAS IMPROPER AND PREJUDICIAL. (NOT RAISED BELOW)
III. THE STATE COMMITTED SUBSTANTIAL AND PREJUDICIAL MISCONDUCT IN SUMMATION, NECESSITATING REVERSAL. U.S. CONST., AMEND. V, XIV; N.J. CONST., ART. 1, PARS. 9, 10. (1947). (PARTIALLY RAISED BELOW)
IV. THE JURY CHARGE WAS SO BIASED TOWARD THE STATE THAT THE DEFENDANT WAS DENIED THE OPPORTUNITY FOR FAIR CONSIDERATION BY THE JURY. U.S. CONST., AMEND V[,] XIV; N.J. CONST. ART. 1, PARS. 9, 10 (1947). (NOT RAISED BELOW)
V. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
I.
Defendant argues the trial judge erred by denying his motion to sever the counts of the indictment. We disagree.
The decision to grant or deny a motion to sever is within the trial court's sound discretion. State v. Morton, 155 N.J. 383, 452 (1998). Where the "evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, a court should grant a motion for severance only when defendant has satisfied the court that prejudice would result." State v. Moore, 113 N.J. 239, 275 (1988) (citations omitted).
Rule 3:7-6 governs the joinder of charges for trial. Rule 3:7-6 states:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R[ule] 3:15-2.Rule 3:15-2(b) states if it appears a defendant or the State would be prejudiced by joinder of offenses, the court may order separate trials. We have found the joinder of offenses to be prejudicial when "the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charge." State v. Lado, 275 N.J. Super. 140, 149 (App. Div. 1994) (citations omitted). The test for assessing prejudice under the rule is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N. J.R.E. 404(b)] in the trial of the remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). "N.J.R.E. 404(b) requirements must be met, and the evidence of other crimes or bad acts must be 'relevant to prove a fact genuinely in dispute and the evidence is necessary as proof of the disputed issue[.]'" State v. Sterling, 215 N.J. 65, 73 (2013) (citations omitted) (quoting State v. Darby, 174 N.J. 509, 518 (2002)).
A "key factor" is "whether the evidence of these other acts would be admissible in separate trials under [N. J.R.E. 404(b)]." State v. Blakney, 389 N.J. Super. 302, 327 (App. Div. 2006) (alteration in original) (quoting Moore, supra, 113 N.J. at 274). N.J.R.E. 404(b) states:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.To determine the admissibility of other-crimes evidence under N.J.R.E. 404(b), we apply test established in State v. Cofield, 127 N.J. 328, 338 (1992). To be admissible under the test:
(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.
[Ibid. (citation omitted).]
To satisfy the first prong of Cofield, "the evidence of the prior bad act, crime, or wrong must be relevant to a material issue that is genuinely disputed." State v. Covell, 157 N.J. 554, 564-65 (1999). We consider whether the evidence "tend[s] to shed light" on the defendant's motive or intent, even if the defendant's actions occurred prior to the commission of the charged offense. State v. Rogers, 19 N.J. 218, 228 (1955). Based upon M.H.'s statement defendant said "he wasn't a rapist" and "he just likes it when I say no," the evidence of both crimes are relevant to establish the purpose, motive, and intent of defendant.
The second prong of Cofield requires the evidence of the two crimes to be similar in kind and close in time. Cofield, supra, 12 7 N.J. at 338. Here, both women were known to defendant, both were lured to his apartment under pretext, and then once at his home, sexually assaulted by him. These two incidents occurred within six months.
Defendant argues the two offenses did not have the requisite similarity. We disagree. In State v. Oliver, 133 N.J. 141, 156 (1993), a defendant was convicted of sexually assaulting two women, and the Court found the use of other-crime evidence was limited to only the "feasibility of the crimes and defendant's use of pretext." Here, the evidence of the other crimes, specifically luring women to his home, established defendant's use of pretext and therefore established requisite similarity under Cofield.
The third prong of Cofield requires the evidence to be clear and convincing. Cofield, supra, 127 N.J. at 338. The trial judge found the evidence to be clear and convincing based upon the sworn statement of M.H and her guardian, as well as the evidence produced during the search of defendant's home and the DNA testing.
The fourth prong of Cofield asks whether the probative value of the evidence outweighs the prejudicial effect. Cofield, supra, 127 N.J. at 338. Defendant argues the joinder of the two charges allowed to the State to depict him as a "serial rapist," prejudicing him at trial. Evidence that goes to motive can be admissible, "even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton, Criminal Evidence § 170, at 314-15 (13th ed. 1972)). When evaluating the probative value of evidence, "remoteness" of that evidence is relevant. Covell, supra, 157 N.J. at 569. The court "must [also] consider the availability of other evidence that can be used to prove the same point." Ibid. (citation omitted). Because defendant's defense is consent, the evidence is highly relevant, especially in light of M.H's statement defendant told her he "likes it when I say no." Defendant's statements to M.H are relevant to motive, intent, and purpose, and no other evidence in the record can prove that point, thereby satisfying the fourth prong of Cofield. For these reasons, we discern no error in the determination of the trial judge to deny severance.
II.
Defendant argues the State refreshed M.H.'s recollection via her statement to the police so frequently during trial the credibility of her testimony was unduly enhanced beyond her independent recollection and knowledge. This issue was not raised below, but defendant asserts M.H.'s testimony was so prejudicial that it meets the plain-error standard, Rule 2:10-2. We disagree.
Rule 2:10-2 states:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice
plain error not brought to the attention of the trial or appellate court.
M.H. was shown her statement at least ten times during the course of her direct examination in order to refresh her memory about the specific events leading up to the assault through the use of N.J.R.E. 612. Defendant did not object to the use of the statement generally but argued the State had not established M.H. was unable to recall the events in each instance. Defendant acknowledges the State could have admitted M.H.'s statement to the police pursuant to the past recollection recorded exception, N.J.R.E. 803(c)(5). However, when the State attempted to admit M.H's statement to the police, pursuant to past recollection recorded, the trial judge directed the State to ask M.H. to review her statement and determine if her memory was refreshed before utilizing N.J.R.E. 803(c)(5). The State proceeded in what was a somewhat awkward exchange, but defendant has not demonstrated how the procedure was plain error, especially in light of the fact the statement would have been admissible under N.J.R.E. 803(c)(5).
N.J.R.E. 612 states:
[I]f a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness . . . [and] . . . introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. . . . If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying.
III.
We briefly address defendant's argument the prosecutor's summation contained improper comments hindering defendant's right to a fair trial.
When assessing whether prosecutorial misconduct, such as improper remarks in summation, requires reversal we must determine whether "the conduct was so egregious that it deprives the defendant of a fair trial." State v. Loftin, 146 N.J. 295, 386 (1996) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)). We look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.
Having carefully reviewed the record, we conclude the comments were unartful but did not deprive defendant of a fair trial. Defendant challenged two separate remarks made by the prosecutor in response to defense counsel's statements concerning M.H.'s credibility.
The prosecutor thereafter remarked, "[defense counsel] has a job and that job is to protect the defendant's rights and she's good at that job and she's done it well in this case, but no one was there to protect [P.C.] . . . and [M.H.]. . . ." Defense counsel objected, adding she found the statement to be borderline unethical. Prosecutors, in their summation, "cannot cast unjustified aspersions on defense counsel or the defense." State v. Lazo, 209 N.J. 9, 29 (2010). However, a prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. State v. DePaglia, 64 N.J. 288, 297 (1974).
The other remark contested by defendant was, "Every defendant . . . has the right to a fair trial no matter how overwhelming the evidence is against him. This defendant has had his trial. Now is your time." Defendant argues the State insinuated defendant's right to a fair trial ends when all the evidence has been presented; however, this was not a misstatement of law warranting reversal.
IV.
Defendant argues the jury charge was biased in favor of the State because it repeatedly and improperly referred to the encounters between defendant and M.H., and defendant and P.C., as "crimes." Because the issue was not raised below, we review the jury instructions for errors "clearly capable of producing an unjust result," pursuant to the plain error standard, Rule 2:10-2, and "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant has not demonstrated the jury charge was so prejudicial as to warrant reversal. Additionally, pursuant to Rule 1:7-2, challenges to the jury charge must be made at the time of trial or "else waive[d] the right to contest the instructions on appeal." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010).
V.
Finally, we reject defendant's argument the trial judge's findings at sentencing were so deficient as to require a reduction, specifically asking that the sentence be reduced to the minimum second-degree sentence of five years or, alternatively, the sentences should be reduced to no more than the "generally-accepted mid-point" of seven years.
This court reviews a trial judge's sentencing in order to ensure the trial judge followed the sentencing guidelines set forth in the criminal code. A reviewing court must ensure the sentencing guidelines were not violated, determine the findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984).
The trial judge found aggravating factors three, six, and nine and no mitigating factors. The trial judge recognized defendant's minimal prior record, only one disorderly person's offense, but found defendant's risk to reoffend substantial as the second offense occurred while defendant was out on bail for the first offense. Additionally, the judge noted Beckett was indicted and pled guilty to two counts of third-degree aggravated assault and one count of resisting arrest while in jail. Moreover, the trial judge found these were "forcible rapes with no regard for the victims," and as such, there was a tremendous need for deterrence, warranting a finding of aggravating factor nine.
Defendant asserts the trial judge should have considered his mental illness as a mitigating factor. A sentencing judge must consider the aggravating and mitigating factors supported by evidence in the record. State v. Dalziel, 182 N.J. 494, 505 (2005). There is not sufficient evidence in the record regarding Beckett's mental condition at the time he committed these offenses to find any mitigating factors to warrant a reduction in sentencing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION