Opinion
DOCKET NO. A-5387-11T2
12-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.M.B., Defendant-Appellant.
Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles, on the brief). Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Rebein, on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-01-0072. Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles, on the brief). Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Rebein, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant K.M.B. was convicted of the first-degree aggravated sexual assault of K.G., N.J.S.A. 2C:14-2a(1), and second-degree endangering the welfare of K.G., N.J.S.A. 2C:24-4a. Defendant was sentenced to an aggregate term of sixteen years imprisonment with an eight-year period of parole ineligibility and was also ordered to pay $1440 in restitution to the Violent Crimes Compensation Office. Defendant raises the following arguments on appeal:
The indictment charged defendant with criminal conduct that occurred between April 26 and May 11, 2001. At that time, the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 did not apply to either of the crimes charged.
POINT I
[DEFENDANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION.
POINT II
[DEFENDANT] WAS DEPRIVED OF DUE PROCESS OF LAW AND A FAIR TRIAL BY THE ADMISSION OF DETAILED AND HIGHLY PREJUDICIAL EXTRINSIC EVIDENCE CONCERNING UNCHARGED BAD ACTS WITHOUT THE REQUIRED SANITIZATION AND WITHOUT AN EFFECTIVE LIMITING INSTRUCTION.
POINT III
THE COURT'S ADMISSION OF FRESH COMPLAINT TESTIMONY, ITS FAILURE TO DELIVER AN ACCOMPANYING LIMITING INSTRUCTION, AND ITS FINAL JURY INSTRUCTIONS ON DELAYED DISCLOSURE OF SEXUAL ABUSE SO BOLSTERED K.G.'S CREDIBILITY AND INTRUDED ON THE JURY'S FUNCTION TO DETERMINE K.G.'S CREDIBILITY THAT [DEFENDANT] WAS DENIED A FAIR TRIAL.
POINT IVWe have considered these arguments in light of the record and applicable legal standards. We reverse.
THE COURT ABUSED ITS DISCRETION IN REFUSING TO DECLARE A MISTRIAL, OR, AT MINIMUM, TO INQUIRE WHETHER FURTHER DELIBERATION WOULD HELP TO RESOLVE THE DEADLOCK, WHEN THE JURY ANNOUNCED FOR THE SECOND TIME THAT IT WAS DEADLOCKED.
POINT V
BECAUSE THE TRIAL COURT FAILED TO ADHERE TO ESTABLISHED SENTENCING GUIDELINES SET FORTH IN THE CODE, [DEFENDANT] MUST BE RE-SENTENCED AND THE RESTITUTION ORDER MUST BE VACATED.
We choose not to include the sub-points contained in several of the point headings in defendant's brief.
Although represented by the Office of the Public Defender throughout this appeal, without filing any motion, defendant submitted a pro se supplemental brief. We refuse to consider the document. See R. 1:4-5 (requiring all briefs to be "signed by the attorney of record . . . or by a pro se party" (emphasis added)).
I.
Before turning to the legal arguments raised, we briefly synopsize the evidence at trial. In February 2009, when she was nearly seventeen-years old, the victim phoned her mother, D.M., at work. She was upset, crying and informed her mother that, years earlier while romantically involved with D.M., defendant had sexually assaulted her. D.M. called the Teaneck Police Department. Detective Tara Jennings of the Bergen County Prosecutor's Office interviewed the victim and her mother and took formal statements from both. According to the victim, in 1998, when she was "six turning seven" years old and in the first grade, she moved from her grandmother's home in Teaneck to Silver Spring, Maryland, where she lived with her mother, defendant, and defendant's girlfriend. At some point, after his girlfriend left, defendant and D.M. became romantically involved.
The victim stated that the first instance of sexual abuse occurred in Silver Spring, when her mother was delayed coming home from work, and she was alone in the house with defendant. Defendant kissed her and touched her vagina over her clothes; he told her not to tell anyone. A second incident occurred when the victim was in the second grade. While her mother was asleep, defendant called the victim from her room in the middle of the night and motioned her to lie on the floor. Defendant tried to have intercourse with her, but stopped when she indicated that it was painful. Defendant then forced her to perform oral sex and again told her not to tell anyone. A third incident occurred while D.M. was in the hospital, pregnant with defendant's child. The victim testified that on this occasion, defendant forced her to masturbate him and again told her not to tell anyone.
In late April or early May 2001, as she was about to complete third grade, the victim, her mother and her new-born half-sister, relocated to her grandmother's home in Teaneck. Although defendant's relationship with D.M. was at an end, he traveled with them to help them get settled. One day, before she enrolled in school in Teaneck, and when she and defendant were alone on the second floor of the house, defendant called the victim into the hallway, laid her down, kissed her, and digitally penetrated her vagina. Like other times, he told her not to tell anyone.
Other testimony revealed that the victim enrolled in school in Teaneck in early May 2001.
The State called the victim, D.M. and Jennings as witnesses. Defendant elected not to testify and called no witnesses.
II.
Before the actual trial commenced, and prompted by a letter from defendant written several months earlier expressing a desire to represent himself, the pre-trial judge questioned defense counsel as to whether he had had an opportunity to discuss the issue with defendant. Counsel indicated that he had visited defendant in jail, discussed the issue, and that defendant desired to represent himself at trial.
This judge did not preside over the trial.
Responding under oath to the judge's questions, defendant accurately recited the charges in the indictment and expressed dissatisfaction with his attorney. The judge asked defendant what the indictment meant. Defendant responded that the indictment "mean[t] [the grand jury has] enough evidence to convict you or try to convict you." The judge concluded that defendant did not understand "the difference between a grand jury and a petit jury."
The judge also questioned defendant about the letter, in which defendant wrote that he had an investigator to assist him with his case. Defendant told the judge the investigator was someone "locked up with" him. The judge expressed concern, stating to defendant, "you're not even sure you know the difference between a grand jury proceeding and a State jury proceeding."
After defendant stated that he had confidence in himself and would risk the consequences of proceeding without counsel, the judge said
that's not the risk I'm going to take. You failed . . . , I'm not going to let you represent yourself. You don't even know the basis about that. It's not fair to you, because you'll end up screwing the case up and then you'll be the first one to complain
to me that you should've had a different lawyer, that you didn't understand, especially since you can't even understand the difference between the grand jury proceeding and a regular proceeding in court at a trial with [twelve] people. So your application to allow you to represent yourself is denied.
In Point I, defendant argues the judge improperly denied his request to represent himself. The State counters by contending that the judge was actually inquiring into defendant's mental state, and whether he was knowingly and intelligently waiving his right to counsel. It contends that the judge did not mistakenly exercise his discretion and deny defendant's request. We agree with defendant.
A criminal "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). In State v. Crisafi, 128 N.J. 499 (1992), the Court explained that a defendant may "exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel." Id. at 509.
[W]hen determining whether a waiver of counsel is knowing and intelligent, trial courts must inform defendant of: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that lack of knowledge of the law may
impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.In State v. Reddish, 181 N.J. 553 (2004), the Court added additional requirements to the process, specifically that:
[DuBois, supra, 189 N.J. at 467 (citing Crisafi, supra, 128 N.J. at 511-12.]
(1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination.
[DuBois, supra, 189 N.J. at 468 (citing Reddish, supra, 181 N.J. at 594-95.]
"A defendant's right of self-representation is not absolute, however, and it cannot be used to jeopardize the State's equally strong interest in ensuring the fairness of judicial proceedings and the integrity of trial verdicts." State v. King, 210 N.J. 2, 18 (2012) (citing State v. McNeil, 405 N.J. Super. 39, 51 (App. Div. 2009)). "There may be times . . . when the defendant will be required to cede control of his defense to protect the integrity of the State's interest in fair trials . . . ." Reddish, supra, 181 N.J. at 587.
When making inquiry, however, the judge's "goal is not to explore a defendant's familiarity with 'technical legal knowledge[,]' for that is not required." King, supra, 210 N.J. at 19 (alteration in original) (quoting Reddish, supra, 181 N.J. at 595). "Rather 'the trial court must question [the] defendant to ascertain whether he actually understands the nature and consequences of his waiver.'" Ibid. (quoting Reddish, supra, 181 N.J. at 594).
Here, the pre-trial judge was understandably concerned about defendant's ability to represent himself, given some expressed confusion about the respective roles of grand juries and petit juries, as well as defendant's professed intention to use a fellow prisoner as an investigator. However, facing a similar set of factual circumstances in King, which was decided after the trial in this case, the Court made clear that "[s]uch concern, no matter how well-intentioned, cannot override defendant's exercise of his right to decide to represent himself." Id. at 21. As in King, "[n]othing within the colloquy [in this case] indicated that defendant lacked the competency to make that choice." Ibid.
Under the circumstances presented, we are compelled to conclude that the record does not support the denial of defendant's request to represent himself at trial. The denial of defendant's constitutional right to represent himself cannot be considered harmless. Id. at 22. We therefore reverse defendant's conviction and remand the matter for further proceedings.
III.
For the purpose of providing guidance, we only address those issues raised by defendant that may recur in the event of another trial.
At the time of trial, defendant had been charged with sexual crimes committed against K.G. in Maryland, and a detainer had been lodged against him. The record does not reveal the disposition of those charges.
A.
Before jury selection, defense counsel sought to exclude any evidence regarding the Maryland assaults. Based upon the parties briefing of the issue, the trial judge initially concluded that the proffered evidence was "intrinsic" to the crimes charged and admissible under State v. Rose, 206 N.J. 141 (2011). He also hypothesized that the evidence might be admissible under N.J.R.E. 404(b). The judge decided to conduct a hearing pursuant to N.J.R.E. 104, and the victim testified about the Maryland assaults.
Following the hearing, the judge reiterated his earlier ruling, concluding the Maryland evidence was "inextricably intertwined with the crime charged" in New Jersey, and the evidence "provide[d] a background and complete[d] the story." As noted above, the victim testified before the jury regarding the sexual assaults that took place in Maryland.
Defendant argues that the Maryland evidence was not intrinsic to the crimes charged and was inadmissible under N.J.R.E. 404(b). He argues that even if relevant and admissible under N.J.R.E. 404(b), the probative value of the Maryland evidence was outweighed by the prejudice of such testimony, the evidence was not properly "sanitized," and the jury never received a proper limiting instruction regarding the victim's testimony. The State argues the evidence was "intrinsic" to the charged crime, but, even it was not, the Maryland evidence was admissible under N.J.R.E. 404(b), and the judge's limiting instruction was adequate.
Evidence that is "intrinsic" to the charged crime, is not "other crimes" evidence, and therefore not subject to Rule 404(b). Evidence may be intrinsic to the charged crime in two ways. First, "evidence is intrinsic if it 'directly proves' the charged offense." Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010)). "Second, 'uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.'" Ibid. (quoting Green, supra, 617 F.3d at 249). However, even "intrinsic evidence" is subject to exclusion under N.J.R.E. 403, which permits exclusion of "relevant evidence . . . if its probative value is substantially outweighed by the risk of . . . undue prejudice . . ." Rose, supra, 206 N.J. at 177.
The Maryland evidence was not intrinsic to the charged crime that took place in New Jersey. The fact that defendant sexually assaulted the victim in Maryland does not "directly prove" that the New Jersey assault occurred. The State argues that the Maryland assaults facilitated the sexual assault in New Jersey, because defendant "groomed" the victim for the later crime in Teaneck. However, Rose defines facilitation evidence as including "'uncharged acts performed contemporaneously with the charged crime.'" Id. at 181 (emphasis added) (quoting Green, supra, 617 F. 3d at 249.
While the victim was not very specific about exactly when the assaults occurred, she testified that the final Maryland incident occurred while her mother was giving birth to her half-sister, which, from other evidence in the record, occurred in February 2001. As noted, the assault in Teaneck most likely took place around the first week in May. Although relatively close in time, the last assault in Maryland and the charged crime in New Jersey were not "contemporaneous" with each other.
However, in our opinion, the Maryland evidence would be admissible under N.J.R.E. 404(b). That Rule provides:
evidence 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.If a trial court fails to undertake a N.J.R.E. 404(b) analysis where appropriate, as was the case here, "an appellate court may engage in its own 'plenary review' to determine [the evidence's] admissibility." Rose, supra, 206 N.J. at 158 (quoting State v. Barden, 195 N.J. 375, 391 (2008)).
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.
The Cofield test requires that:
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.
[State v. Williams, 190 N.J. 114, 122 (2007) (quoting Cofield, supra, 127 N.J. at 338.]
Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.'
[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403)].
The second prong applies primarily to those factual scenarios similar to Cofield, and the Court has said the second prong of the test "need not receive universal application in Rule 404(b) disputes." Williams, supra, 190 N.J. at 131.
Here, the evidence was relevant to defendant's intent through the earlier assaults, to secure the victim's continued silence and prepare his continuing plan to sexually abuse the victim. Moreover, as the Court in Rose made plain, N.J.R.E. 404(b) contains a non-exhaustive list of permitted, non-propensity reasons for admitting such evidence, and "there is no reason that our courts cannot allow, under Rule 404(b), evidence to be admitted for . . . 'necessary background . . . ." Rose, supra, 206 N.J. at 181 (quoting Green, supra, 617 F.3d at 249). The first Cofield prong is satisfied.
The judge did not conclude whether the victim's testimony during the Rule 104 hearing was "clear and convincing," and we are ill-equipped on the record before us to reach such a determination. See Lykes, supra, 192 N.J. at 535-36 (conducting a plenary review, the Court determined the 404(b) evidence was "clear and convincing" because the defendant admitted the facts during his testimony). If the case is tried again, a new Rule 104 hearing should take place, and the judge should determine whether the evidence of the Maryland assaults meets Cofield's standard for admissibility.
Lastly, the probative nature of the evidence is not outweighed by its apparent prejudice. The Teaneck incident was not an isolated sexual assault; it was, if the victim is believed, the culmination of a history of sexual abuse, committed at a time when defendant was unlikely to be in the victim's company with the frequency he had been in the past. The Maryland evidence is highly probative of how and why the Teaneck assault occurred. Also for these reasons, the probative value of the Maryland evidence is not substantially outweighed by the risk of undue prejudice. N.J.R.E. 403.
Subject to the results of a new Rule 104 hearing, and proper instructions regarding the permitted and prohibited uses of the evidence if admitted, we conclude the State should be permitted to introduce the victim's testimony regarding the Maryland assaults at any retrial.
B.
Defendant argues that D.M.'s testimony about her daughter's 2009 report of defendant's sexual assaults years earlier was hearsay, not admissible as "fresh complaint" evidence, and the judge's instructions regarding the victim's "delayed disclosure" were erroneous and infringed upon the jury's fact finding mission. The State argues that D.M.'s testimony was not hearsay because it was not introduced to prove the truth of the victim's allegations, and the testimony was limited and without detail.
We agree that the testimony was very brief, and D.M. did not detail what her daughter specifically said, nor did she elaborate upon her own assessment of her daughter's delayed disclosure. We do not think the testimony impacted the results of the trial in any meaningful way.
We understand why the State sought to explain how it was that the victim's report of abuse that occurred eight years earlier resulted in a response by law enforcement in 2009. We do not believe the evidence is objectionable if strictly limited as it was at trial.
Lastly, if supported by the evidence and requested by the State, Model Jury Charge (Criminal), "Fresh Complaint: Silence or Failure to Complain" (2013), may be given to the jury. That charge has nothing to do with "fresh complaint" evidence. Rather, as the Court has explained, it is the appropriate charge to be given if requested by the State "[i]n situations in which a defendant presents relevant evidence of a child victim's delay in reporting alleged abuse, and the State does not present evidence of [Child Sexual Abuse Accommodation Syndrome] . . . ." State v. P.H., 178 N.J. 378, 400 (2004).
The title to the charge is a misnomer, since the delayed report of sexual abuse usually does not result in fresh complaint evidence that substantively proves that the sexual crime occured.
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As a result of our conclusions, we need not consider the other arguments raised by defendant.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION