Opinion
DOCKET NO. A-5614-11T2
06-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES JACKSON, a/k/a WOODS RAHEEM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-11-2612.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Charles Jackson appeals from convictions for two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, one count of second-degree luring or enticing a child, N.J.S.A. 2C:13-6, and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. We affirm.
A Monmouth County grand jury indicted and charged defendant with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count One) and -2c(4) (Count Two), second-degree luring or enticing a child, N.J.S.A. 2C:13-6 (Count Three), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Four). Judge John T. Mullaney, Jr. and a jury tried defendant over eight days in December 2011. We discern the following facts from the evidence adduced at trial.
The victim, K.R., lived in the same building as defendant and was friends with defendant's daughter. On July 10, 2008, when K.R. was thirteen years old, defendant suggested that K.R. come to his apartment to visit with his daughter. Shortly thereafter, K.R. went to defendant's apartment. Defendant answered the door, let K.R. into the apartment, told K.R. that the daughter was not there, and locked the door. K.R. testified that defendant began kissing K.R.'s neck and told her to take off her pants, K.R. removed her pants, the shorts that she was wearing under the pants, and her underwear. According to K.R., defendant then brought her to the couch, touched and put his mouth on her vaginal area, and put his penis in her vagina. K.R. experienced bleeding after leaving defendant's apartment.
K.R. returned to her apartment and told her sister and her aunt what had happened. Her aunt took her to the police department, and then an ambulance brought her to the hospital, where a Sexual Assault Nurse Examiner, Agnes Panten, examined her. Panten observed a streak of blood and a "defect in the tissue which [she] interpreted as a tear." She took photographs and collected specimen samples using a sexual assault kit.
Dr. Julia DeBellis, an expert in pediatrics and child sexual abuse, opined that the photos from K.R.'s examination did not demonstrate an injury. Regarding the blood that Panten observed, Dr. DeBellis testified that "there's no way to distinguish . . . whether or not that is blood from trauma, from an injury, or blood from menstruation." On cross-examination, the assistant prosecutor asked, "Could there be blood after the first time somebody has sex?" Over defense counsel's objection, the judge permitted the witness to answer. Dr. DeBellis answered, "There could be blood anytime someone has sex, whether it's the first time or not, there could be. There usually isn't."
The judge also admitted a photograph of K.R. in the hospital over defendant's objection. Based on descriptions in the record, the photo depicted K.R. at the hospital covered in a blanket. The judge stated that "[i]t's a photo of a [thirteen]-year-old girl . . . taken on the night in question. The person who testified before this jury is [sixteen] years old" and that
The photograph was not produced on appeal.
one of the reasons I allowed [the photograph] to go in, beside[s] the obvious reason that that shows her in the hospital in the condition that she was in, it also clearly depicts her age.A detective collected evidence from defendant's apartment, including samples from a blood stain on defendant's couch. Dolores Coniglio, an expert in forensic laboratory work, testified that the samples from defendant's couch "matched" K.R.'s DNA, meaning that for one of the samples "the DNA profile . . . occurs in approximately 1 in [59,100] of the African-American population." During her summation, the assistant prosecutor described the DNA evidence as follows:
There's a radical difference in the physical appearance of a female from age [thirteen] to age [sixteen], as opposed to a male going from, say, age [forty] to age [forty-three]. The maturing process in the teenage years is radical.
The DNA profile obtained from the specimen on the couch is 1 in 1.42 million of the African-American population belonging to [K.R.] The other swab on the couch is 1 in 59,000 of the population — African-American population belonging to [K.R.]
Dolores Coniglio told you there's a difference between a match and a source. . . .
1 in 59,000. So if basically every single person who lived in Middletown at the time of this offense traipsed through this man's apartment and sat on the couch, one person would match what was there.
The jury found defendant guilty of the lesser-included offense of criminal sexual contact, N.J.S.A. 2C:14-3b, on Counts One and Two, and found defendant guilty of Counts Three and Four. The judge sentenced defendant to an aggregate extended term of fifteen years with seven and one-half years of parole ineligibility.
On appeal, defendant raises the following points:
POINT I
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR MISCHARACTERIZED THE DNA FINDINGS IN THIS CASE AND WHEN SHE VIOLATED RULE 404(B) AND INTRODUCED K.R.'S VIRGINITY INTO THE TRIAL, DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART., ¶ 10.
A. Introduction.
B. The DNA Evidence.
C. Introduction of K.R.'s Virginity Into the Case.
POINT II
THE TRIAL JUDGE ERRED IN PERMITTING THE PROSECUTOR TO INTRODUCE A PHOTOGRAPH OF K.R. IN A HOSPITAL BED CLOTHED ONLY IN A HOSPITAL
BLANKET THEREBY DEPRIVING JACKSON OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT III
THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
POINT V
THE SEVEN AND ONE-HALF YEAR PERIOD OF PAROLE INELIGIBILITY IMPOSED BY THE COURT SHOULD BE VACATED.
I.
A.
We disagree with defendant's contention that the assistant prosecutor's description of the DNA evidence deprived defendant of a fair trial. "[S]o long as [a prosecutor] stays within the evidence and the legitimate inferences therefrom the [p]rosecutor is entitled to wide latitude in his summation." State v. Wakefield, 190 N.J. 397, 457 (2007) (citation and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "'[T]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Id. at 438 (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)).
In general, a prosecutor's fallacy occurs when an individual assumes the likelihood that "a member of the general population would share the same DNA" is the same as is the probability that "someone other than the defendant is the source of the DNA found at the crime scene." McDaniel v. Brown, 558 U.S. 120, 128, 130 S. Ct. 665, 670, 175 L. Ed. 2d 582, 588 (2010). Here, the assistant prosecutor's description of the DNA evidence did not confuse these two probabilities. Furthermore, even if the prosecutor's description was not statistically precise, the statement did not substantially prejudice defendant's right to a fair trial. The assistant prosecutor acknowledged that there is a difference between a "match" and a "source." Defense counsel vigorously cross-examined the DNA expert on the statistics involved in DNA analysis and, during her summation, reiterated the statistical principles and argued that the forensic evidence was weak. Therefore, we conclude that defendant's right to a fair trial was not prejudiced.
B.
Defendant argues that the assistant prosecutor improperly introduced evidence of K.R.'s virginity into the trial by asking Dr. DeBellis whether there could be bleeding the first time someone has had sex. Defendant also contends that the probative value of this evidence was substantially outweighed by the risk of undue prejudice, and that it may have constituted improper character evidence. We disagree.
N.J.R.E. 403 provides, in pertinent part, that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 404(a) generally provides that "[e]vidence of a person's character or character trait . . . is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion."
Here, the assistant prosecutor did not elicit testimony about K.R.'s virginity, but instead asked a general hypothetical question. The evidence was relevant because the reason for the bleeding was an important issue in the case. There is no reason to believe that the question could have confused or misled the jury. And, the question was unlikely to cause prejudice because it was general and hypothetical; it did not proffer that K.R. was a virgin.
This question also did not involve character evidence under N.J.R.E. 404, because it was not used for the purpose of showing that K.R. "acted in conformity" with prior virginity or chastity. Instead, it related to whether the bleeding could have been caused by sexual assault rather than menstruation. We conclude that this did not prejudice defendant's right to a fair trial.
II.
We reject defendant's contention that the judge erred by admitting the photograph of K.R. in the hospital. Whether to admit a victim's photograph into evidence is within a trial court's discretion, and therefore we do not reverse "in the absence of a palpable abuse thereof." State v. McDougald, 120 N.J. 523, 582 (1990). Such an abuse exists if "the potential for prejudicial information . . . significantly outweigh[s] the photos' probative worth, to the extent that the jurors are diverted 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Ibid. (quoting State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div.), certif. denied, 111 N.J. 653 (1988)).
We conclude that there was no palpable abuse of discretion. The photo was probative because it showed the "condition that [K.R.] was in," which was also probative of her credibility, and it demonstrated her age, an element of the crimes. Based on the descriptions in the record, the photo showed K.R. in a hospital bed covered in a hospital blanket, and it was not gruesome or excessively sympathetic. Therefore, the potential for prejudice did not outweigh the photograph's probative worth.
III.
Defendant argues that the judge committed reversible error by refusing to provide the "false-in-one, false-in-all" charge to the jury. We disagree.
Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). We examine the jury charge "as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Where a judge mistakenly declines to give a requested charge, the harmful error standard applies. See State v. Macon, 57 N.J. 325, 337 (1971). We must disregard any error unless it was "clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2).
Whether to give the false-in-one, false-in-all charge is within the discretion of the trial judge. State v. Ernst, 32 N.J. 567, 583-84 ( 1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The charge applies when a witness tells a "conscious falsehood as to a material fact" and the judge may give this instruction "in any situation in which he reasonably believes a jury may find a basis for its application." Ibid.
Defendant argues that inconsistencies between K.R.'s testimony and statements that K.R. made before trial warranted a false-in-one, false-in-all charge. There is no credible evidence in the record to show, however, that K.R. consciously testified falsely. Also, considering the jury charge as a whole, the judge provided a sufficient instruction on credibility, which mirrored the model jury charge, and a comprehensive instruction on prior inconsistent statements. Therefore, refusing to give the false-in-one, false-in all charge was not harmful error.
IV.
Defendant contends that the judge made insufficient findings at sentencing to impose a discretionary period of parole ineligibility. We defer to trial judges' sentencing decisions and do not disturb such decisions unless (1) the judge did not adhere to the sentencing guidelines; (2) the findings regarding the statutory aggravating and mitigating factors were not based on competent, credible evidence; or (3) under the facts of the case, the sentence was "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
N.J.S.A. 2C:43-6 authorizes courts to impose a period of parole ineligibility not to exceed one-half of the term of imprisonment, "[a]s part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors." N.J.S.A. 2C:43-7, in pertinent part, authorizes courts to impose a term of parole ineligibility not to exceed one-half of the term of imprisonment when the court imposes a discretionary extended term of imprisonment. Our Supreme Court has held that the standard set forth in N.J.S.A. 2C:43-6 applies when judges impose a discretionary term of parole ineligibility under N.J.S.A. 2C:43-7. State v. Dunbar, 108 N.J. 80, 92-93 (1987), abrogated in part by State v. Pierce, 188 N.J. 155 (2006).
Here, the judge found aggravating factors one (nature and circumstances of the offense), two (gravity and seriousness of harm inflicted), three (risk of re-offense), six (extent and seriousness of prior offenses), and nine (need to deter). The judge did not find any mitigating factors. He considered aggravating factors one and six only when deciding whether to impose an extended term. The judge then found that there was a "preponderance" of aggravating factors. There is no reason to second-guess the application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364.
We conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION