Opinion
DOCKET NO. A-4901-11T3 DOCKET NO. A-0525-12T3
03-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEREK J. MCDONOUGH, Defendant-Appellant.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the briefs). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-04-441. Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the briefs). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief). PER CURIAM
Defendant Derek McDonough was charged in Union County superseding Indictment No. 10-04-441 with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count one); second-degree luring, N.J.S.A. 2C:13-6 (count two); third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four); second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(b)(3) (count five); third-degree promoting obscene material, N.J.S.A. 2C:34-3(b)(1) (count six); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count seven). The charges relate to his relationship with a thirteen-year-old girl (the victim) he met when he was twenty-eight years old, after viewing her profile on the social media website, MySpace.com (MySpace).
Following his arrest on July 11, 2008, defendant was initially charged under Union County Indictment No. 08-12-1115, which included counts one, two, three, and seven. Upon issuance of the superseding indictment, Indictment No. 08-12-1115 was dismissed on January 9, 2012.
We note N.J.S.A 2C:28-5(a), N.J.S.A. 2C:14-2, and N.J.S.A. 2C:24-4 were amended after defendant was initially indicted; however, the amendments do not affect the issues presented on appeal.
A jury acquitted defendant of counts five and six, convicted him on counts four and seven, and was hung on counts one, two, and three. Defendant was sentenced to an eighteen- month prison term on count four and a consecutive four-year prison term on count seven, subject to a two-year period of parole ineligibility. He appeals from these convictions (Docket No. A-4901-11).
After trial, defendant moved to reduce his sentence. The motion was denied and defendant filed a second appeal (Docket No. A-0525-12). We ordered the two matters consolidated.
Defendant challenges his conviction and sentence, arguing:
POINT I
APPELLANT'S STATEMENTS TO LAW ENFORCEMENT OFFICERS WERE OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND SHOULD HAVE BEEN SUPPRESSED. [THE VICTIM]'S SECOND STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE POISONOUS TREE.
. . . .
B. Appellant's Statements Were Not Made Voluntarily.
C. Appellant Invoked His Right To Remain Silent, Which Was Not Scrupulously Honored By Police.
D. [The Victim]'s Second Statement To Police Was The Fruit Of Appellant's Unconstitutional Interrogation And Should Have Been Suppressed.
POINT II
THE PHOTOGRAPHS FROM APPELLANT'S THUMB DRIVE WERE OBTAINED IN VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE AND THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TAINTED
THE ENTIRE PROCEEDINGS TO APPELLANT'S DETRIMENT (Not Raised Below).
A. The Trial Court Plainly Erred By Failing To Hold An Evidentiary Hearing On The Admissibility Of The Photographs And Derivative Evidence.
B. The Thumb Drive Was Obtained In Violation Of Appellant's Right To The Effective Assistance Of Counsel.
POINT III
THE STATE'S KNOWING USE OF DETECTIVE LIEBERMAN'S PERJURED TESTIMONY REQUIRES REVERSAL OF THE CONVICTIONS (Not Raised Below).
POINT IV
THE STATE'S SUMMATION CONTAINED IMPROPER AND PREJUDICIAL REMARKS, REQUIRING REVERSAL OF APPELLANT'S CONVICTIONS (Partially raised below).
. . . .
POINT V
THE JUROR'S TESTIMONY REGARDING DELIBERATIONS VIOLATED THE SECRECY OF THE JURY ROOM IN VIOLATION OF THE RULES OF COURT AND ESTABLISHED NEW JERSEY LAW.
POINT VI
THE TRIAL COURT ERRED IN WEIGHING THE MITIGATING AND AGGRAVATING FACTORS AND APPELLANT'S SENTENCE MUST BE VACATED.
POINT VII
THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO REDUCE HIS SENTENCE.
Following our consideration of the arguments presented, in light of the record and applicable law, we affirm.
We recite the facts, taken from the trial record. In January 2008, defendant commenced electronic communication with the victim. Defendant learned the victim's MySpace profile was inaccurate. Specifically, although her profile stated she was eighteen, she was actually twelve and turned thirteen in February 2008.
The victim's parents, concerned for the extensive time their daughter spent at her computer, installed tracking software to monitor her activity. They realized she engaged in extensive electronic communication with a named male. Checking the victim's cell phone, the victim's father found the male's phone number. The parents later identified the individual as defendant and learned he was twenty-eight years old, not seventeen as their daughter suggested. The parents also realized their nanny knew of the relationship and met defendant. The parents immediately fired the nanny and called the police.
The victim told police she met with defendant on five occasions. She admitted the two kissed, defendant touched her breasts under her shirt, and on a single occasion pulled down his pants, took out his penis, and requested she fellate him, a request the victim insisted she declined. The victim denied defendant attempted other sexual acts.
Defendant was arrested at his residence, read his Miranda rights, and told of the charges against him. He consented to the seizure of his two computers and was taken into custody late in the evening of July 10, 2008.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the police station, Detective Eric Lieberman and Detective Sergeant Andrew Gallagher conducted a videotaped interrogation of defendant. Sergeant Gallagher repeated defendant's rights, read each one separately, and asked whether defendant understood what he was told. Defendant signified his understanding by initialing every right on the Miranda card. When asked whether he chose to waive his rights and speak to the detectives, he responded "yes" and executed a Miranda waiver form at 12:30 a.m. on July 11, 2008. Next, defendant was asked whether he would consent to allow police to search his computers' contents. He agreed and executed a written consent.
In addition to a DVD of the interview, the record contains a document which purports to be a transcript of the custodial interrogation. The document, dated April 6, 2010, is not certified and is incomplete. Consequently, we decline to rely on this transcription, instead basing the facts on review of the DVD.
During the videotaped interrogation, defendant admitted he had countless conversations and at least four to five meetings with the victim, during which they walked around town and the park, held hands, and kissed. Defendant also admitted he, the victim, her nanny, and the nanny's friends went to New York City together. Defendant stated he "had feelings" for the victim, although he knew she was only thirteen. Defendant denied he asked for oral sex or engaged in other sexual contact.
As the interrogation continued to address the encounters and sexual contact with the victim, defendant was told to be truthful as the police knew the answers to the questions they were asking. Defendant then admitted he touched the victim's breasts and was uncomfortable talking about her breasts. Detective Lieberman responded, "Dude there is no[] other way to resolve this then to do this, you know what I mean. You think we wanna to be sitting here . . . ? . . . . [W]e're just as uncomfortable as you are . . . ."
Defendant continued to answer the detectives' questions and they repeatedly reminded him of the need to be honest and tell them the truth. Defendant then stated, "I just wanna go home" to which Detective Lieberman replied, "Well, dude that's what we're working towards ain't we. . . . [Y]ou're ninety percent, I need you to be one hundred percent truthful Defendant then said, "Please, I don't want to go to Union [County Jail]," I just want to go home, to which Detective Lieberman replied: "[T]hat's what we're trying to avoid for you my man. You gotta be one hundred percent not ninety." Defendant began crying and stated he told the victim he wanted to wait until she was old enough and he was not out there "trying to get sex." He insisted he would never leave her. Defendant then asked, "[a]m I going to jail tonight?" Detective Lieberman stated, "I told you man that's what we're working to try and avoid." Defendant stated, "I don't know if I'm incriminating myself with anything I say." Detective Lieberman told him "Dude, you've already done it [and] we already got you."
Sergeant Gallagher again asked about the nature of any sexual activity other than kissing and touching the victim's breasts, noting he wanted to hear defendant's side of the story. Defendant said his mind was jumbled and the detectives told him him to take a sip of water, relax, and get his thoughts together. He again expressed he was scared. Defendant later said "my brain is whizzing all over the place, right now." Finally, defendant admitted that at one meeting with the victim, he touched her vagina without digital penetration and asked her to perform oral sex. He stated she performed oral sex for approximately five seconds. Defendant admitted he was nervous, knew he did something wrong and wished he "could go back in time."
Recapping the statements defendant made, Sergeant Gallagher noted defendant's remorse, his repeated expression of his feelings for the victim, and that he was sorry. Defendant also asked whether he could talk to his parents and was told emphatically he could not. The approximately one-hour interview ended at 1:36 a.m. on July 11, 2008. Defendant was ultimately released on bail, conditioned upon no contact with the victim.
At 9:35 a.m. on the morning of July 11, the victim was again interviewed by police. In response to Detective Lieberman's questions about whether her statement from the prior day should be changed or whether defendant had touched her in any other way, she confirmed she fellated defendant, he had inserted his fingers in her vagina, and he briefly inserted his penis in her vagina but stopped at her request.
On August 29, 2008, the victim's family obtained a new computer. The victim renewed her participation on MySpace, and, using a pseudonym, reestablished contact with defendant. The victim's parents continued to monitor her computer conversations and alerted police when they realized their daughter was communicating with defendant, who also had created a fake profile on MySpace.
The parents, posing as their daughter, messaged defendant. In one of many responses, defendant wrote: "if you go to court when I have to go, then I'm so screwed. If you refuse to go to court, then I might be okay. Help -." Defendant and the victim also texted and called each other using their cell phones. As a result, police again arrested defendant and charged him with witness tampering.
Around this time, defendant's parents found a computer flash drive on the desk in his bedroom. Viewing the contents, they discovered several photographs, including a photograph of a nude female body. The picture was framed to omit the female's face. Defendant's parents released the flash drive to defendant's attorney. Counsel gave copies of the pictures to the prosecutor.
On March 18, 2010, Detective Patricia Gusmano conducted a third interview of the victim. She showed her the nude pictures and the victim revealed she sent the photographs of herself to defendant, at his request, using her cell phone. Further, she acknowledged she may have been untruthful in her prior interview when she told Detective Lieberman defendant had penetrated her with his finger, and suggested she was "uncomfortable talking with the male detectives." Defendant was then charged with additional offenses, including promoting obscene material.
Defendant moved to suppress his custodial statement and the victim's second statement to police. A hearing was held, before Judge Stuart Peim, during which Detective Lieberman and psychologist Peter C. Rutan, Ed.D., testified. Dr. Rutan had evaluated defendant in March 2009, and diagnosed defendant with Asperger's Disorder and a sustained form of depression. In light of his evaluation and diagnosis, Dr. Rutan reviewed the custodial interrogation video. He concluded defendant's "Asperger's Disorder did interfere with his ability to participate in that interrogation. And also impaired his ability to exercise his Miranda rights." Dr. Rutan stated, in his opinion, defendant clearly "was attempting to stop the process to indicate that he did not wish to participate in that process" and "was emotionally and physically in grave distress and was unable to think clearly and to continue to participate in this. And again indicating that he wished to stop that process."
Dr. Rutan stated defendant had the intellectual capacity to understand and waive his rights, but did not "understand the significance" of that waiver. However, he "did not say[] that he completely was unable to understand" and his comments in the interrogation reflect he understood he could be sent to jail. The judge directed Dr. Rutan to address how he interpreted defendant's reference to his prior conviction for sexual contact with a thirteen-year-old and his statements "the facts will get me in a lot of trouble," which Dr. Rutan agreed "would point in the direction that at that point in time he had some awareness that he could be in trouble."
In a written decision, Judge Peim evaluated the totality of the evidence and concluded defendant had voluntarily waived his Miranda rights and never withdrew that waiver. Accordingly, the judge denied defendant's motion.
In February 2011, defendant's attorney notified police the nude pictures of the female were taken from a flash drive, given to him by defendant's parents. Police obtained a warrant to search defense counsel's office for the flash drive. Upon presentation of the warrant, the flash drive was turned over to police by another attorney in the office.
Trial commenced before the motion judge, but ended in a mistrial when the victim inadvertently referenced excluded evidence. Retrial commenced before a different judge. The jury acquitted defendant of second-degree endangering and third-degree promoting obscene material, and convicted him of fourth-degree criminal sexual contact and third-degree witness tampering. The jury was unable to render a verdict on second-degree sexual assault, second-degree luring, and third-degree endangering the welfare of a child.
In sentencing defendant, the judge weighed the applicable aggravating factors and found no mitigating factors. Accordingly, he imposed an aggregate sentence of five-and-one-half years imprisonment with a two-year period of parole ineligibility.
Defendant argues his conviction must be vacated, raising various claims of error. He also challenges his sentence as excessive.
We note defendant was released from custody on August 29, 2014.
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Starting with the suppression hearing, defendant maintains the motion judge erroneously found his custodial statement was voluntary, despite repeated requests to remain silent, which were ignored by police. Consequently, defendant maintains the victim's second statement must also be suppressed as it was obtained as a result of his unconstitutional interrogation.
"'[A] finding of compliance with Miranda and voluntariness turn[s] on factual and credibility determinations . . . .'" State v. Faucette, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 10) (alterations in original) (quoting State v. W.B., 205 N.J. 588, 603 n.4 (2011)). This court will not "engage in an independent assessment of the evidence as if it were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will it make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Rather,
[i]n our review, we determine whether there is "sufficient credible evidence in the record to sustain the trial judge's findings and conclusions. [W.B., supra, 205 N.J. at 603 n.4]. If so, our "task is complete and [we] should not disturb the result . . . ." State v. Johnson, 42 N.J. 146, 162 (1964). . . . [W]e defer to the trial judge's factual findings that are "'substantially influenced by his [or her] opportunity to hear and see the witnesses and [develop a] feel of the case, which a reviewing court cannot enjoy.'" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161) (internal quotation marks omitted).
[Faucette, supra, slip op. at 10-11 (second, fourth, and fifth alterations in original).]
"When assessing the validity of a defendant's waiver of his right to remain silent, a court considers the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Id. at 13. Relevant factors "include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993). The State bears the burden of proving "'beyond a reasonable doubt the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances.'" State v. Patton, 362 N.J. Super. 16, 42 (App. Div.) (quoting State v. Presha, 163 N.J. 304, 313 (2000)), certif. denied, 178 N.J. 35 (2003).
Importantly,
when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, . . . appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself.Finally, legal decisions made by the judge are reviewed de novo. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
[State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011) (citing State v. Alston, 204 N.J. 614, 626 n.2 (2011)).]
Here, Judge Peim rejected defendant's suppression argument suggesting his Asperger's Disorder impaired his ability to validly waive his rights, making his confession involuntary. Detailing the circumstances surrounding defendant's execution of his Miranda waiver, he concluded defendant's "Asperger's Disorder, by itself, d[id] not make his confession involuntary." See State v. Glover, 230 N.J. Super. 333, 342 (App. Div. 1988) ("Contrary to defendant's contentions, the record clearly demonstrates that defendant's ability to make free and rational choices when interrogated by the police was not 'overborne by defendant's severe mental illness.'"), certif. denied, 121 N.J. 621 (1990). Further, he cited as supporting the waiver defendant's intellect, past criminal involvement, and interview statements evincing his recognition of his rights and his voluntary agreement to speak to police.
Judge Peim also evaluated whether defendant attempted to cease participating in the one-hour interrogation and analyzed the nature of the deceptive techniques employed by the detectives during their questioning. The judge considered and rejected each instance identified by defendant as suggestive of a desire to invoke the right to remain silent. These included defendant's comments he did not "like [] talking about" the sexual contact he had with the victim, he did not "wanna go to Union" (referring to the county jail), and he just "want[ed to] go home." Accounting for the full context of the identified statements, State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007), Judge Peim concluded the totality of the circumstances show defendant's comments were not an attempt to stop the interrogation. See Diaz-Bridges, supra, 208 N.J. at 565 ("[T]he court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked."). We agree.
Specific to the arguments presented on appeal, we note defendant's "emotional reaction to questioning" is not "equivalent to an effort to invoke a constitutional right to silence, because . . . the recognition by a defendant of the enormity of a crime often provokes an emotional reaction." Id. at 568. Contrary to defendant's characterization of the interview, he never asked to end the questioning and go home; rather, he commented he wanted to go home and did not want to go to jail. Although he cried, said he was scared, and displayed nervousness, these signs were directly related to his clearly expressed understanding he was under arrest, his conduct with a thirteen-year-old was wrong, and he was likely headed back to jail. As to his request to speak to his parents, this was made at the conclusion of the interrogation and was not designed to seek aid or advice. Further, this "mere request by an adult to speak with a parent d[id] not equate to an invocation of the right to remain silent . . . ." Id. at 567.
Judge Peim also found the detective's ambiguous promises to help defendant and their expressions of understanding and sympathy did not stray beyond acceptable limits, and overall in light of all the facts, were insufficient to overbear defendant's free will. See Patton, supra, 362 N.J. Super. at 29-32 (noting New Jersey Supreme Court and other jurisdictions condone the use of some trickery in police interrogations). Also, despite defendant's claims of his head spinning and thoughts "whizzing," he was coherent, articulate, alert, and focused throughout the questioning.
We have reviewed each argument presented, viewed the DVD of defendant's custodial interrogation, and read the suppression hearing testimonial record, which includes the expert's opinion and reports. We cannot agree defendant expressed a desire to cease the interrogation, revoking his previously issued waiver. We defer to Judge Peim's thorough factual findings, which we find are fully supported by the State's evidence. We note Dr. Rutan's testimony stated defendant's diagnosed Asperger's Disorder did not preclude his understanding of his Miranda rights. Defendant was twice told of the nature of the charges against him. His comments and conduct revealed he knew why he was being questioned and demonstrated a recognition of and familiarity with the criminal nature of that conduct because of his prior encounters with the criminal system after committing similar offenses. It was with this understanding that he permitted his computers to be seized and searched. We determine the trial judge's legal conclusions accurately analyzed the facts when applying the law. Accordingly, we have no basis to interfere with the order denying defendant's motion to suppress his custodial statement and other resultant evidence.
Defendant next challenges evidential determinations by the trial judge, some of which were not raised at trial. In instances where there was no trial objection, appellate review is guided by the plain error standard. See, e.g., State v. Singleton, 211 N.J. 157, 182 (2012) ("Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge."). Our consideration is whether an error was "clearly capable of producing an unjust result" requiring a new trial. R. 2:10-2.
Defendant argues he was denied a fair trial as a result of the violation of his attorney-client privilege by the admission of photographs found on his flash drive, given by his parents to defense counsel, who released them to the State. At trial, counsel stipulated the source of the photographs, relieving the State of the necessity to prove their origin and chain of custody. Defendant argues counsel was constitutionally ineffective for not recognizing the flash drive was privileged and failing to challenge its seizure from counsel's office.
The photographs taken from the flash drive, and the flash drive itself, were relevant to counts five and six of the indictment, charges the jury rejected. Based on defendant's acquittal, we need not decide whether counsel's conduct was strategic or negligent, as it did not adversely affect the final outcome.
We also reject as unavailing defendant's assertion Detective Lieberman committed perjury when he testified he did not believe the victim's parents revealed the surname of their discharged nanny, even though the individual's name appeared on Detective Lieberman's written incident report. See State v. Nash, 212 N.J. 518, 534, 544 (2013) (recognizing the State's presentment of perjured testimony may violate a defendant's due process rights); State v. Cahill, 125 N.J. Super. 492, 496 (Law Div. 1973) ("[U]se of perjured testimony by the State, whether willful or merely negligent, deprives the defendant of a fair trial."). The State did not question the nanny or present her as a witness. Defendant maintains because the nanny had knowledge of meetings he had with the victim, she possessed "crucial information" that would diminish Detective Lieberman's credibility. Defendant suggests the State's omission, that is failing to obtain the nanny's statement, resulted in an "improper" police investigation and a "cover[-]up." We disagree.
Defendant was provided the police report in discovery and was well aware of the nanny's full name. He never attempted to contact her and does not reveal the nature of her alleged critical testimony. After reviewing Detective Lieberman's trial testimony, we find no factual basis to give credence to defendant's suggestions of a "cover[-]up." Also, we fail to determine how the omission of the nanny's last name was material. See Cahill, supra, 125 N.J. Super. at 496 (holding relief is only available if false testimony was material to the conviction).
We conclude this argument is factually unsupported and legally insufficient, as the testimony and omission did not affect the trial's outcome. See R. 2:10-2 (requiring an error or omission at trial to "be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result").
Turning to the prosecutor's summation, defendant maintains the State impermissibly vouched for the victim's credibility, to which no objection was made. Also, he cites certain comments as prejudicial, which were met with a defense objection. Overall, defendant argues such misconduct requires a new trial.
This court has identified principles governing alleged prosecutorial misconduct when discussing a witness's credibility:
A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony. On the other hand, a prosecutor is free to argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility. And in that regard, a prosecutor is permitted to respond to defense counsel's arguments.
[State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) (citations and internal quotation marks omitted), aff'd on other grounds, 195 N.J. 493 (2008).]
In Bradshaw, we concluded the "statement that the victim was a 'good honest woman . . . [an] honorable person' could be viewed as a fair, albeit poorly phrased, response to defense counsel's strong attack on the victim's credibility." Ibid. (citations and internal quotation marks omitted).
In this matter, the defense summation also attacked the victim's credibility. Highlighting her past untruthful or inconsistent statements to her parents and police, the defense told the jury, "I'm not saying she's a bad person because of it but she lies. . . . We know she has the capability of being less than truthful." In response to these comments, the prosecutor suggested the victim minimized the incident to avoid punishment and embarrassment, then pointed to evidence of record showing the victim "lost her phone, lost her computer, her father said that she was grounded, hurt the person that she cared about, ruined the relationship with her family" when she revealed the whole truth. He then invited the jury to draw an inference from the evidence, suggesting the victim lacked motive to fabricate her sexual contact with defendant.
Noting the State's comments did not draw a defense objection, we conclude the prosecutor's arguments were based on the facts of the case and all reasonable inferences drawn from those facts; what was said in discussing such facts is not a basis for reversal. State v. Smith, 167 N.J. 158, 178 (2001); State v. Johnson, 31 N.J. 489, 510 (1960). See also State v. Frost, 158 N.J. 76, 83-84 (1999) ("Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." (citation omitted)).
Defendant's additional argument regarding summation concerns the prosecutor's request, asking the jurors to conduct an "experiment" in the jury room by having one juror stand up and describe his or her last sexual relationship, so as to understand the victim's state of mind when questioned by police. Defense counsel immediately and properly objected to this impropriety. At side-bar, the trial judge sustained the objection and ordered the prosecutor to "move on," and he did. Defense counsel did not request a curative instruction, at that time, or during the jury instructions. Defendant argues the court's failure to sua sponte issue a curative instruction was reversible error.
In our review, we must determine whether prosecutorial misconduct occurred and, if it did, evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." 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). Prosecutorial "misconduct does not warrant reversal unless it is 'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting Frost, supra, 158 N.J. at 83).
In determining whether prosecutorial misconduct has occurred, our Supreme Court has noted, "New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012), cert. denied, ___ U.S. ___ 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "'If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged.'" Id. at 403 (quoting State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994)). When assessing the impact after finding an instance of misconduct, we "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575.
Here, we agree the prosecutor's suggested jury room experiment was inappropriate, but conclude any prejudicial effect by the isolated comment did not deprive defendant of his right to a fair trial. See Frost, supra, 158 N.J. at 83. The prosecutor heeded the court's instruction, and retreated from his suggestion when the defense objected. No further relief was sought, "depriv[ing] the court of an opportunity to take curative action." Id. at 84. Moreover, defense counsel's silence is strongly suggestive prejudice was minimal and further relief could unnecessarily draw attention to the prosecutor's request. Ibid.
This was not a matter necessitating the trial judge add a curative instruction on his own. The judge, however, included among his general instructions that "[a]rguments, statements, remarks, openings, and summaries of counsel are not evidence." The court's final instructions were sufficient to remove any possible prejudice from the stray remark. See State v. Papasavvas, 163 N.J. 565, 614 (2000). Juries are presumed to follow the court's instructions. See State v. Short, 131 N.J. 47, 65 (1993) ("In those and many other circumstances we trust juries to follow instructions."). Reversal based on this claim is not warranted.
Next, defendant challenges denial of his post-verdict motion to bar retrial of the charges on which the jury hung. Facts surrounding additional events must be recited.
Following the jury's discharge, but prior to defendant's sentencing, a deliberating juror telephoned the prosecutor to inquire whether defendant would be retried on the charges on which the jury could not reach a verdict. The State informed the judge, who immediately advised counsel, and ordered the juror's appearance for examination to allow "free and open access to what was said in that phone call." During the hearing, the juror responded to questions by the judge, the prosecutor, and defense counsel.
The juror made clear he called because he was interested in knowing the process and whether a retrial was likely. He remarked the jury's last note to the court included a comment stating, "Judge, we have partial juror among us letting their [sic] personal feelings get in the way of deciding this case. What are our choices?" Further, the called-back juror insisted his inquiry of the prosecutor was not a concern regarding defendant's sentence; he merely wanted to learn whether the charges would be dropped or if defendant would be retried.
On appeal, defendant argues the State violated the provisions of Rule 1:16-1, which provides: "Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney, interview, examine, or question any grand or petit juror with respect to any matter relating to the case." Defendant urges we find error because "juror testimony . where the State communicated with the juror in violation of the court rules and presented no compelling need for full testimony in accordance with New Jersey law, violated the traditional secrecy of the jury room and prejudiced [defendant]'s due process rights." He believes the judge heavily relied on the juror's disclosure in denying his motion to bar retrial.
In the first instance, no party disputes post-conviction inquiries into jury deliberations are strongly disfavored. See State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006) ("[W]e see no principled reason for permitting ex parte communications concerning the jury's deliberations once a verdict has been rendered and the jury discharged."). Although not every ex parte interaction results in prejudice or warrants the verdict be set aside, see State v. Morgan, 217 N.J. 1, 12 (2013) (setting forth considerations to assess when examining the effect of an ex parte communication), the Court recently denounced post-verdict ex parte discussions between a trial judge and jurors in Davis v. Husain, ___ N.J. ___ (2014), which drew this unequivocal directive:
To bring an end to such practices, we hold that under no circumstances may post-verdict discussions occur between the court and discharged jurors, unless those discussions are part of a hearing ordered on good cause shown pursuant to Rule 1:16-1.See also Morgan, supra, 217 N.J. at 15 (finding ex parte discussions between judge and jury in jury room "plainly improper"); R. 1:2-1 (requiring all trials, hearings, and other proceedings be held in open court).
[Id. at 2.]
In this matter, it is not completely clear exactly what transpired during the juror's call to the prosecutor. However, we find the judge had good cause to act, R. 1:16-1, and cannot say the procedure he employed to flesh out whether an impropriety occurred caused prejudice to defendant or otherwise warranted our interference with post-verdict orders.
Once the judge learned of the juror's call, he ordered examination regarding what transpired between the juror and the prosecutor. At that point, the juror disclosed the jury deadlock resulted from the feelings of the perceived recalcitrance of one juror. Any detail of the jury deliberations was largely revealed because of the probing examination of defense counsel during the hearing, not from the juror's telephone conversation with the prosecutor.
We distinguish the facts presented here from those in Davis, where the trial judge embarked on an informal ex parte interaction with the jury following verdict. Davis, supra, slip op. at 5. The judge related one juror's comment to counsel "in confidence." Id. at 5-6. The substance of the juror's statement and defendant's accompanying explanation were, in part, the basis for a motion for remittitur. Ibid.
Having reviewed the record, we cannot conclude the prosecutor's conversation with the juror prejudiced defendant or led to an unjust result. The judge's decision to require the juror's examination, designed to confirm the substance of his call, was neither ill-advised nor a violation of the sanctity of jury deliberations. Rather, the trial judge followed accepted instructions:
The Supreme Court has said that calling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct. As further explained by the Court, investigations into secret jury deliberations should not be readily used to invalidate verdicts because disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions and because secrecy surrounding jury deliberations is necessary not only to prevent the unsettling of verdicts, but also as an aid to the deliberative process itself. The Court has recognized exceptions to this rule, explaining that inquiry should occur when required by the plainest principles of justice.
[Walkings, supra, 388 N.J. Super. at 157 (citations and internal quotation marks omitted).]
In deciding defendant's post-verdict motion to bar retrial, the judge applied the correct legal standard and carefully and expressly considered the facts of the case against the test set forth in State v. Abbati, 99 N.J. 418, 435 (1985). We defer to the supported findings and will not disturb his conclusion.
Defendant's final arguments suggest the sentence imposed was excessive. We disagree.
At sentencing, defense counsel offered no argument in support of mitigating factors, and defendant declined the opportunity to speak. Prior to imposing sentence, the judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of offense and actor's role therein); two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on victim); three, N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and seriousness of offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others); and no mitigating factors applied. He imposed the sentence accordingly.
Defendant does not challenge the applied aggravating factors, but focuses his challenge on the omission of mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate serious harm); five, N.J.S.A. 2C:44-1(b)(5) (victim induced or facilitated offense's commission); and eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship). He maintains his sentence would have been reduced had these factors been applied.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Our limited review assures aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. State v. Miller, 205 N.J. 109, 127 (2011). Further, we must: (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, we affirm the imposed sentence. State v. Cassady, 198 N.J. 165, 180-81 (2009).
In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are "fully supported by the evidence." State v. Dalziel, 182 N.J. 494, 504-05 (2005). Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.
[Blackmon, supra, 202 N.J. at 296-97.]
Defendant suggests the victim's expressed feelings for him warrants application of mitigating factor five, N.J.S.A. 2C:44-1(b)(5) (the victim induced or facilitated defendant's conduct). We conclude the argument is specious and the judge's findings regarding aggravating factors one and two provide sufficient basis to reject such a contention.
We also reject defendant's contention his Asperger's Disorder supports application of mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate serious harm by his conduct), and eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would impose an excessive hardship). However, he offers no evidential support for such a conclusion. Accordingly, the failure to consider these factors did not impact defendant's sentence. See Blackmon, supra, 202 N.J. at 296-97. We find no abuse of discretion in the sentence imposed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION