Opinion
DOCKET NO. A-4345-13T2
06-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARVIN FLORES-GAMEZ, a/k/a MARVIN FLOREZ GAMEZ, MARVIN FLOREZ, and MARVIN FLORES-GAMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-08-1230. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On March 21, 2012, a Bergen County grand jury returned a four-count indictment charging defendant Marvin Flores-Gamez with first-degree aggravated sexual assault by performing an act of sexual penetration upon the victim, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault by touching the victim's breasts, N.J.S.A. 2C:14-2(b) (count two); second-degree sexual assault by touching the victim's vagina, 2C:14-2(b) (count three); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim, 2C:24-4(a) (count four).
At the conclusion of the trial, the jury found defendant guilty of both counts of second-degree sexual assault (counts two and three), and not guilty of first-degree aggravated sexual assault (count one), and third-degree endangering the welfare of a child (count four). The judge sentenced defendant to concurrent eight-year terms on counts two and three, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE COURT'S SENTENCE OF EIGHT YEARS IN NEW JERSEY STATE PRISON WITH 85% NO PAROLE WAS EXCESSIVE.
POINT II
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ERRED IN PRECLUDING HIM FROM INTRODUCING THE VICTIM'S PRIOR INCONSISTENT STATEMENT.
POINT III
THE PROSECUTOR WAS GUILTY OF MISCONDUCT IN MAKING A FALSE STATEMENT IN HER CLOSING ARGUMENT, AND THE COURT ERRED IN FAILING TO GIVE A CURATIVE INSTRUCTION.
POINT IV
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT SEVERELY ADMONISHED DEFENSE COUNSEL IN THE PRESENCE OF THE JURY.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions. However, we remand for resentencing.
I.
We derive the following facts from the evidence produced by the parties at trial. In August 2011, defendant contacted twelve-year-old Susan on Facebook. At that time, defendant was nineteen years old. Susan testified that she had known defendant for over a year, but they were just acquaintances. At first, defendant's Facebook messages to Susan were about her family. As the weeks went on, defendant began telling the child that she was pretty, and that he loved her, wanted to be with her, and "want[ed] to have sex with [her]." Susan testified that she did not want to have sexual intercourse with defendant, but she and defendant continued to exchanges messages.
Pursuant to N.J.S.A. 2A:82-46(a), the "identity of a victim who was under the age of [eighteen] at the time of the alleged commission of an offense shall not appear on . . . any . . . public record[.]" Accordingly, we refer to the victim and the other witnesses by fictitious names in order to protect the victim's confidentiality.
At the time of the alleged sexual assaults on November 18, 2011, defendant was twenty years old.
Finally, defendant sent Susan a message stating he wanted to meet her and that he would take a day off from work in order to do so. Up until that point, defendant had never asked to meet with the child. Susan decided to skip school and meet with defendant on November 18, 2011. Susan asked her thirteen-year-old cousin Kate to come along. Kate's boyfriend Tim was also going to be there.
Although Kate testified that Tim was her boyfriend, Tim stated he was not dating the child. The record is unclear as to Tim's age, although he testified that he took a vacation day off from work to join the others on November 18.
On November 18, Susan left her house at 7:50 a.m. with her book bag, and met defendant and Tim across the street from her home. Defendant and Susan began walking, while Tim went to meet with Kate. Defendant and Susan arrived at a home, where defendant's cousins rented a basement apartment. Tim and Kate got to the home about five minutes later. Kate was also carrying her book bag. The two children went to the back of the house, where there were steps leading down to a door. Defendant and Tim stayed in the front of the house for a short time, and then they went to the back of the house, where Tim unlocked the door to the basement apartment. Once inside, the men closed the apartment door and locked it.
The apartment had a kitchen, a bathroom, and a bedroom with two beds in it. The two children told the men they wanted to leave, but defendant and Tim told them it was too cold outside. At first, the girls sat at the kitchen table, while defendant and Tim went into the bedroom. About five minutes later, the children went into the bedroom with the men.
Susan and Kate sat on one bed, and the men sat on the other. They talked for about an hour, and then began playing cards. Susan testified that the men gave orange juice to the girls that tasted like alcohol. At 10:30 a.m., the men left the children alone in the apartment and went out to buy beer. Susan stated that she and Kate tried to leave, but the door was stuck. The men drank the beer when they returned, but did not offer any to the children.
Around noon, the men ordered a pizza to be delivered to the apartment. After eating the pizza, Susan went into the bathroom. When she returned, Kate and Tim were sitting on one of the beds, and defendant was alone on the other. Susan sat on the bed next to defendant.
Susan testified that, around 2:00 p.m., defendant began kissing her, and telling her that she was pretty and he liked her. Tim and Kate were also kissing. Susan stated that she attempted to move away from defendant. Soon after, Kate said that she was going to go to the bathroom. Tim told Susan that defendant wanted to talk to her, and then he left the bedroom with Kate.
Once defendant had Susan alone in the bedroom, he asked if she was a virgin and, when she replied that she was, he asked whether she "wanted to lose it to him." Susan "said, no."
Susan testified that defendant then moved closer to the child, fondled her breasts, and tried to kiss her. When Susan resisted, defendant held her down and then laid on top of her. The child stated that defendant pulled down her jeans and underwear and started taking off his pants. Susan called out for Kate, but she did not respond. Defendant put a small pillow near the child's face. Susan then felt defendant's erect penis enter her vagina. The child cried from the pain and told defendant to stop, but defendant told Susan he would hit her if she did not allow him to continue. Susan bit defendant and he got off of her, pulled his pants up, and began cursing at her.
Kate then came into the room, and Susan told her she was leaving. Susan first went into the bathroom and there was some blood on the toilet paper she used. The child flushed the paper down the toilet. Susan and Kate then left the apartment.
At first, Susan did not tell anyone about the assault. Defendant soon contacted her on Facebook and asked the child if she was mad. Susan replied that she was not. Defendant stated that he wanted to make love to the child, and Susan apologized for not wanting to have sex with him. Over the next couple of days, defendant and Susan continued exchanging messages.
Susan's step-father learned that she had skipped school, and he asked the child what happened. Susan told her step-father she spent the day with Kate. On November 23, 2011, the step-father again asked Susan if anything had happened to her, and the child told him about the assault. The step-father took Susan to the police station, where she gave a statement that was consistent with the trial testimony outlined above.
In January 2012, Susan was examined at a hospital. The physician testified "that the examination did not confirm or deny the possibility of sexual assault."
On November 25, 2011, defendant gave a videotaped statement to detectives. After being advised of his Miranda rights, defendant corroborated Susan's account concerning what would become the two counts of second-degree sexual assault (counts two and three) charged in the indictment. Defendant admitted that, prior to November 18, he exchanged messages with Susan on Facebook, and agreed to meet with her, Tim, and Kate. Once they were at the apartment, defendant stated that he and Tim drank some beer, but did not give any to the children. However, defendant said that the girls were drinking "four locos," a fruit-flavored, alcoholic malt beverage, that they found in the refrigerator.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant stated that he and Susan were lying on the bed, and began hugging and kissing "like boyfriend and girlfriend." Defendant then touched the child's breasts with his hand. Defendant said he wanted to have sex with Susan, and the child responded, "I don't know[.]" At some point, Tim and Kate left the room.
Defendant claimed that the child pulled her own pants off, and that he unzipped his pants. Defendant's penis was erect and he put it on top of Susan's vagina. Defendant told the detectives that Tim and Kate began knocking on the door, so he did not penetrate the child. Instead, he got up, zipped up his pants, and sat on the bed. Defendant stated that Tim did not know what happened, because Tim was not in the room.
Defendant did not testify at trial. Tim testified that defendant and Susan were never alone together in the apartment, and that he never saw defendant kiss or sexually assault the child.
Kate testified that she and Tim had been dating "for about a month or so" prior to November 18, 2011. She did not taste alcohol in the drink she and Susan had at the apartment. Kate stated that defendant was never alone with Susan and did not assault her in any way. However, Kate testified that she saw defendant kissing Susan "like how a father would kiss a daughter."
II.
During his cross-examination of Susan, defendant's attorney asked the child whether she had ever told anyone that there were five individuals in the apartment on November 18, rather than four. Susan replied, "[n]o." The attorney then showed Susan a copy of a report prepared by a psychologist who had been treating the child. In the report, the psychologist had written that Susan bit defendant on his hand to make him stop, and that Susan "'described that [Tim's] mother came in the room and told both of them, put on clothes. [Susan] indicated that she hugged [Tim's] mother and told her what happened and [defendant] ran away. [Susan] recalled that [Tim's] mother informed her to call the police.'" After reading this portion of the report aloud, Susan denied making this statement to the psychologist.
During the defense case, defendant's attorney sought to call the psychologist as a witness to rebut Susan's testimony that she never said that Tim's mother was present in the apartment. The prosecutor objected, and the trial judge ruled that the contents of the report were protected by the psychologist-patient privilege set forth in N.J.R.E. 505. Thus, the judge did not permit defendant to call the psychologist as a witness. Defense counsel then called Tim's mother to the stand. She stated that she had never been in the basement apartment.
In Point II of his brief, defendant argues that the judge's ruling was incorrect and requires that his convictions be reversed. A trial judge's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). Thus, on appellate review, a trial judge's evidentiary ruling must be upheld "unless it can be shown that the [judge] palpably abused [his or her] discretion, that is, that [the] finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
While the psychologist-patient privilege safeguards important aspects of a patient's privacy and access to mental professionals, it is not absolute. State v. L.J.P., 270 N.J. Super. 429, 439 (App. Div. 1994). "[T]he requisite foundation for piercing the privilege involves a showing of legitimate need for the shielded evidence, its materiality to a trial issue, and its unavailability from less intrusive sources." Ibid.; see Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1977).
Here, defense counsel confronted Susan with the psychologist's report, and the child denied making the statement concerning Tim's mother that the psychologist attributed to her. The State never objected to Susan's testimony on cross-examination, and no one raised the psychologist-patient privilege on her behalf. As the State now concedes, at that point, the judge should have permitted defendant to present the psychologist as a witness and question her about the accuracy of her report.
Defense counsel agreed that he would only ask the psychologist about the passage in the report that Susan had already read to the jury.
Although we conclude that the judge mistakenly exercised his discretion in precluding the psychologist's testimony, we are satisfied that this error was harmless beyond a reasonable doubt. State v. Cabbell, 207 N.J. 311, 338 (2011). As the Supreme Court recently explained, appellate courts
will disregard "[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of
producing an unjust result." State v. Castagna, 187 N.J. 293, 312 (2006) (alterations in original) (citing R. 2:10-2). The possibility that the error led to an unjust result "must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 (2012) (alteration in original).
[State v. Bass, 224 N.J. 285, 308 (2016).]
At that point in the trial, the psychologist's testimony would have largely been cumulative. Susan had already read the portion of the psychologist's report to the jury. In addition, Tim's mother testified that she was not in the apartment at any time. Most importantly, defendant admitted touching Susan's breasts and vagina in his videotaped statement to the detectives. Thus, defendant corroborated Susan's account of the incident as it related to the two counts of aggravated sexual assault. Because the evidence of defendant's guilt on these charges was overwhelming and was not solely dependent upon Susan's credibility, the judge's error was harmless. Therefore, we reject defendant's contention on this point.
III.
In Point III of his brief, defendant argues that the prosecutor improperly referred to him as a "recent immigrant" in her closing statement. This argument lacks merit.
With regard to their summations, prosecutors are "expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
In his opening statement to the jury, defense counsel asserted that defendant was "a [twenty]-year-old man, English is not his first language. He is in a new country trying to survive the best way he can working to help support his family." In his closing argument, defendant's attorney repeated this theme, and told the jury that defendant was "a poor kid, an immigrant kid with no money." The attorney also argued that
[j]ustice in this case means looking at the evidence for what it is, when and for what it is, when each piece in stacking them up determined what actually happened here. That is justice, not taking advantage of a young man who is not highly educated, who's in a new country and who's trying to survive the best he can.
Contrary to defense counsel's assertions, however, defendant had been in the United States for at least twelve years. Thus, in her summation, the prosecutor argued:
At the beginning of this case[,] defense counsel told you [defendant is] a recent immigrant and what does he do? He repeats it, he's a recent immigrant to this country. The defendant tells you [in his statement to the detectives that] he's been here since he's eight years old, eight. I went to school here. . . . I had this teacher, I had that teacher. Do you remember that whole conversation in his confession? He says it himself and yet defense counsel comes up and tells you [defendant is a] recent immigrant.
Defendant correctly argues that his attorney never used the term "recent immigrant" in describing defendant. However, by claiming defendant was "an immigrant kid . . . who's in a new country[,]" defendant effectively told the jury the same thing. Under these circumstances, we discern no impropriety in the prosecutor's comments in response to defendant's contention.
IV.
On the first day of trial, defendant's attorney was approximately one hour late. The trial judge admonished the attorney, stating that this was not the first time the attorney had been late to court. The judge said he was putting the attorney "on notice, when we start the trial" that if he was late again, the judge would impose a monetary sanction. The judge explained, "I'm trying to tell you that I am trying to manage a case. I have a lot of different people here that are waiting around and a lot of time, energy, and money is being wasted." The jury was not present during this colloquy. During the course of the trial, defense counsel was late to court on other occasions.
In the morning on a day when the jury was scheduled to continue its deliberations, defense counsel was late again. After the jurors were impaneled, the judge admonished the attorney in the presence of the jury, telling him that it was "the fourth or fifth" time he had been late. Defense counsel apologized, and said he was "especially remorseful for the jury."
Later that day, when the jury sent out a question for the judge, the judge instructed the jurors as follows:
A couple of matters that I want to go over with you. First, I want to make sure that the jury understands, from time to time I have to make statements to [the attorneys --] admonitions. What I do with the attorneys is a separate matter between the [c]ourt and the attorney. . . . I need to
have control over these proceedings to make sure that they run expeditiously and fairly.The jurors responded, "Yes, Judge[,]" and the judge stated, "Let the record reflect that the jury is nodding in the affirmative."
I want to make sure that the jury fully understands that those admonitions to counsel, or whatever the disagreement may be, that it will no way impact your ability to fairly and impartially judge the case, alright.
It's my conversation with the attorneys; I don't want it negatively impacting the defendant. Is that understood?
In Point IV of his brief, defendant argues that the judge's admonishment of the attorney in the jury's presence deprived him of a fair trial. We disagree.
It is well recognized that a trial judge's "official expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively; or worse yet, give the impression that the judge has an opinion of defendant's guilt or innocence." State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div. 2006) (citing State v. Guido, 40 N.J. Super. 191, 208 (1963)). Therefore, "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury. Id. at 60 (quoting Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999)). "Complete neutrality must be maintained, and the [trial] judge has a duty to refrain from making any comment that may be telegraphed or interpreted as judicial disparagement, disbelief[,] or disapproval." Ibid.
Examining the remarks cited by defendant, we do not find the trial judge's comments to defense counsel to be deprecatory or prejudicial. His criticism of defense counsel's lateness did not interfere with defendant's ability to present his case and did not have the capacity to negatively influence the jury against the defense. Moreover, the judge carefully instructed the jurors not to let his comments affect their "ability to fairly and impartially judge the case[.]" We rely "upon the jurors' ability and willingness to follow the [curative] instruction[s] without cavil or question." State v. Manley, 54 N.J. 259, 270 (1969). Therefore, we reject defendant's contention on this point.
V.
In Point I of his brief, defendant argues that his sentence was excessive. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. State v. Case, 220 N.J. 49, 65 (2014); see State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 365 (1984). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." Case, supra, 220 N.J. at 64-65 (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)).
The trial judge did not adhere to these principles. In imposing sentence, the judge cited aggravating factors one, two, and nine, N.J.S.A. 2C:44-1(a)(1), (2), and (9), and mitigating factors seven and eleven, N.J.S.A. 2C:44-1(b)(7), and (11). Although the judge remarked that aggravating factor nine was "probably the strongest fact that could be analyzed and used[,]" he did not weigh any of the factors, or explain how he determined the sentence. Instead, after listing the aggravating and mitigating factors, the judge simply stated that he was "going to impose a term of eight years, . . . but I'm going to run it concurrent with counts two and three." The judge's omission of a statement of reasons for his imposition of the sentence requires a remand.
The judgment of conviction (JOC) incorrectly states that the judge also found aggravating factor six, N.J.S.A. 2C:44-1(a)(6). This finding was not included in the judge's oral decision, which controls over the inconsistent JOC. State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (citing State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). This mistake should be addressed on the remand.
There were other sentencing mistakes. In finding aggravating factors one and two, the judge relied upon the victim's young age. The judge stated:
Now, with respect to aggravating [and] mitigating factors[,] I find: 1) the nature of the offense. the whole idea of attaching oneself to a [twelve-year-old] and . . . this is not something that happened as a split second, it was something that built up over the course of time and resulted in this [twelve]-year-old girl being in the bedroom with the defendant.
The seriousness of harm. I've touched upon that in terms of the fact that she is never going to be the same. She'll always have memories of this, and psychological harm is just as detrimental as physical harm.
However, the finding of an aggravating sentencing factor cannot be premised solely upon an essential element of the crime for which the defendant is being sentenced. State v. Kromphold, 162 N.J. 345, 353-54 (2000). Because the age of the child victim was an element of second-degree sexual assault, this fact should not have been considered in finding aggravating factors one and two for sentencing purposes. See State v. Fuentes, 217 N.J. 57, 74-75 (2014) (holding that "a sentencing court must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense"). On remand, the sentencing court may apply these two factors "only if there is credible evidence in the record to support the finding. In its statement of reasons, the court should provide a detailed explanation of its findings with respect to this and any other factor applied." Id. at 78.
N.J.S.A. 2C:14-2(b) states that "[a]n actor is guilty of sexual assault if he [or she] commits an act of sexual contact with a victim who is less than [thirteen] years old and the actor is at least four years older than the victim."
We note that this is not a case where the victim's age was significantly below that set in the statute. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (consideration of sexual assault victim's extreme youth was not double-counting, where child was four years old and the statute covered victims under the age of thirteen). --------
The judge also failed to consider all of the mitigating factors raised by defense counsel. In addition to mitigating factors seven and eleven, counsel asked the judge to consider finding mitigating factors eight, nine, and twelve, N.J.S.A. 2C:44-1(b)(8), (9), and (12). In Case, the Court held that "[m]itigating factors 'called to the court's attention' should not be simply ignored." Case, supra, 220 N.J. at 68 (quoting Blackmon, supra, 220 N.J. at 297. The trial "court was obliged to give reasons for rejecting those mitigating factors brought to its attention or accepting them if sufficiently grounded in the evidence." Id. at 69. Thus, on the remand, the court must address any mitigating factors raised by defendant.
A few days before the sentencing, the Supreme Court issued its decision in State v. Bolvito, 217 N.J. 221 (2014). In that case, the Court established several factors which sentencing judges must consider when imposing a Sex Crime Victim Treatment Fund (SCVTF) penalty under N.J.S.A. 2C:14-10. Id. at 224. In the present case, the judge imposed a $1000 SCVTF penalty, but did not address the factors announced in Bolvito. On remand, the court should consider the Bolvito factors in assessing the SCVTF penalty.
Finally, the judge only imposed one mandatory $800 Sexual Assault Nurse Examiner Program Fund (SANE) penalty. N.J.S.A. 2C:43-3.6(a) states that the $800 SANE penalty "shall be assessed . . . for each offense." Because defendant was convicted of two counts of second-degree sexual assault, the judge should have assessed two SANE penalties.
VI.
In sum, we affirm defendant's convictions, but remand for resentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION