Opinion
DOCKET NO. A-3394-11T2
01-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FELIX A. MERCADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-06-0956. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and -2a(2)(a); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. We affirm the convictions, but remand and direct the judge to determine the applicable parole ineligibility period pertaining to the conviction on Count Four of the indictment and to amend the judgment of conviction (JOC) if warranted.
We discern the following facts from the evidence adduced at trial. Defendant was married to D.P. from 1976 to 1988. D.P. has two daughters, N.P. and E.P., and a son, C.P., from a prior relationship. Defendant and D.P. have a daughter, S.M.
When C.P.'s daughter, S.P., was fourteen years old, she wrote a poem for a school assignment about a girl who was sexually abused by a family friend. S.P.'s teacher alerted the school counselor, who questioned S.P. about the poem, and S.P. revealed that defendant had sexually assaulted her when she was approximately seven to nine years old. S.P. later gave the police a statement making the same allegations and also testified at trial about the incident.
A few days later, D.P. called the police after speaking with her daughters, and reported that defendant had also sexually assaulted E.P. and S.M. E.P. and S.M. testified at trial that defendant sexually assaulted them over twenty years ago, when E.P. was around eleven to fourteen years old and S.M. was around seven to eleven years old. The sexual assaults were said to have occurred when D.P. was still married to defendant and they were all living together.
The State also presented testimony from an expert on Child Sexual Abuse Accommodation Syndrome ("CSAAS") about why victims of sexual abuse delay reporting their abusers.
At the conclusion of trial, a jury convicted defendant on Counts One, Two, Four, Five, Six and Seven, and found him guilty of the following lesser included offenses: on Count Three, third-degree endangering the welfare of a child by one who has no legal duty; and Count Eight, third-degree aggravated criminal sexual contact. The judge imposed an aggregate prison term of fifty years. He merged Counts Two and Three with Count One, and sentenced defendant to a nineteen-year prison term with an eighty-five percent period of parole ineligibility on Count one, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.; a consecutive sixteen-year prison term with an eight-year period of parole ineligibility on Count Four, which the judge merged with Count Five; a consecutive fifteen-year prison term on Count Six, which the judge merged with Count Seven; and a concurrent four-year prison term on Count Eight.
The indictment charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One), second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Three), committed against S.P.; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count Four), and second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Five), committed against S.M.; two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count Six and Eight), and second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Seven), committed against E.P.
The JOC lists eight years but, as discussed below, defendant contends that the judge intended to impose seven years.
On appeal, defendant argues the following points:
POINT I
IT WAS ERROR TO ADMIT AS FRESH COMPLAINT A STATEMENT EXTRACTED FROM [S.P.] WHEN SHE WAS QUESTIONED BY A SCHOOL COUNSELOR FIVE YEARS AFTER THE ALLEGED ABUSE HAD ENDED.
POINT II
IT WAS ERROR TO DENY SEVERANCE OF COUNTS [ONE TO THREE] FROM COUNTS [FOUR TO EIGHT] WHERE THE COUNTS CHARGED SEPARATE CRIMINAL INCIDENTS, INVOLVED DIFFERENT VICTIMS, AND OCCURRED MORE THAN A DOZEN YEARS APART.
POINT III
IT WAS ERROR NOT TO GIVE A CURATIVE INSTRUCTION AFTER DEFENSE COUNSEL, THE PROSECUTOR AND THE COURT INTERPRETER CONFIRMED THAT A WITNESS VIOLATED THE COURT'S RULING EXCLUDING TESTIMONY ABOUT DEFENDANT'S PRIOR INCARCERATION INSTRUCTION (PARTLY RAISED BELOW).
POINT IV
IT WAS ERROR TO ADMIT TESTIMONY ABOUT THE [CSAAS] UNDER THE EXPERT-TESTIMONY EXCEPTION TO N.J.R.E. 702 BECAUSE THE SYNDROME IS NOT BASED ON RELIABLE SCIENCE (NOT RAISED BELOW).
POINT V
THE SENTENCE OF [FIFTY] YEARS, WITH CLOSE TO HALF THE TERM WITHOUT PAROLE, IS GROSSLY EXCESSIVE.
POINT VI
THE JUDGMENT OF CONVICTION MISTAKENLY LISTS THE PAROLE DISQUALIFIER ON COUNT [FOUR] AS EIGHT YEARS AND MUST BE CORRECTED TO REFLECT THE SEVEN YEARS THE COURT IMPOSED.
I.
We first address defendant's contention that the judge erred by admitting into evidence S.P.'s statements to the school counselor. Defendant maintains that the statements were inadmissible under the fresh-complaint exception to the hearsay rule because they were not spontaneous or voluntary and were made five years after the sexual assault ended.
The fresh-complaint exception allows the introduction of a victim's statement to someone whom the victim would ordinarily turn to for support, provided that the statement was made within a reasonable time after the alleged incident and was spontaneous and voluntary. See N.J.R.E. 803(c)(2); State v. Hill, 121 N.J. 150, 163 (1990). In cases involving sexual assault, fresh-complaint evidence is used "to negate the inference that the victim was not sexually assaulted because of her silence." Hill, supra, 121 N.J. at 163.
Here, the judge ruled that S.P.'s statements to the school counselor were admissible as fresh-complaint evidence, reasoning that
[h]ere we have a [fourteen]-year-old child who's an honor student. The child's relationship with the interviewer, this is not necessarily the coercive environment of a police station and this is a person who is certified by the State and employed by the school to assist in counseling students who has experience in this area, who has dealt with students similarly situated in the past and who is trained to put children at ease in speaking to them, so although [the school counselor] was a stranger to [S.P.] she was someone who is able to and in some measure did develop a rapport with [S.P.] and a relationship that fostered a discussion.
In some measures the child did initiate the discussion because she wrote a poem and in that poem she revealed very disturbing things which could be interpreted as, number one, a cry for help, and, number two, as someone who has some terrible thing happen to her, and [the school counselor's] questioning of the child was prompted by the poem that was written by [her].
[S.P.] understood that she wasn't in trouble and [the school counselor] only wanted to ask her about the poem that she had written, and it appears that the interview was of relatively short duration . . . about an hour in length . . . and . . . the types of question[s] that were asked . . . weren't leading questions at all. She asked whether the poem was about her, whether she knew the person, where the incident took place. The only leading question is did he put his penis in you. Other than that, all the questions were open-ended questions. [On] the specificity regarding the alleged abuser
and the acts alleged, . . . they weren't terribly specific, but they were specific to the extent . . . that they were revealed in . . . a poem written by [S.P.] and so they were . . . designed to ask or to elicit from [S.P.] information about what prompted what was written in the poem. It merely prompted an explanation by [S.P.] as to some specific statements that were disturbing to [the school counselor].
Our Supreme Court has held that statements elicited by "general non-coercive questioning" may be admitted but statements "procured by pointed, inquisitive, coercive interrogation lack the degree of voluntariness necessary to qualify under the fresh-complaint rule." Id. at 167. Courts are to consider "the age of the victim; the circumstances under which the interrogation takes place; the victim's relationship with the interrogator, i.e., relative, friend, professional counselor, or authoritarian figure; who initiated the discussion; the type of questions asked -- whether they are leading and their specificity regarding the alleged abuser and the acts alleged" when determining if that line has been crossed. Id. at 168; State v. Bethune, 121 N.J. 137, 145 (1990).
The judge did not abuse his discretion in admitting into evidence S.P.'s statements to the school counselor. The statements were voluntary and spontaneous as the allegations first appeared in S.P.'s poem, only then prompting the school counselor to investigate. Additionally, S.P. was seven years old when defendant, her own step-grandfather, began sexually assaulting her. See Bethune, supra, 121 N.J. at 144 (allowing for a substantial lapse of time between the sexual abuse and reporting for younger victims); State v. R.E.B., 385 N.J. Super. 72, 88 (App. Div. 2006) (allowing for a two-year delay). Therefore, a five-year delay can be considered "reasonable" under these circumstances.
II.
We reject defendant's contention that the judge erred by failing to sever Counts One to Three involving S.P. from Counts Four to Eight involving E.P. and S.M.
Two court rules guide whether to sever various offenses at trial. Rule 3:7-6 provides that "[t]wo or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character[.]" However, if a defendant "is prejudiced by . . . joinder of offenses . . . in an indictment or accusation[,] the court may order . . . separate trials of counts[.]" R. 3:15-2(b).
In reviewing whether a trial judge erred by allowing two or more offenses to be tried simultaneously, we "must assess whether prejudice is present, and [the court's] judgment is reviewed for an abuse of discretion." State v. Sterling, 215 N.J. 65, 73 (2013). "The test for assessing prejudice is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." Ibid. (alteration in original) (citations and internal quotation marks omitted).
Our Supreme Court has set forth the following criteria for admitting other-crimes evidence under N.J.R.E. 404(b):
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. Cofield, 127 N.J. 328, 338 (1992) (citation and internal quotations omitted).]
The trial court's analysis under Cofield should only be disturbed if there is "'a clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)). Applying the Cofield test, the judge found:
[On the first Cofield prong], the State claims that . . . it's relevant to explain
the delay in disclosure and to rebut the [d]efense of fabrication.
Here, I'm satisfied that, in fact, this evidence would explain . . . the older victims' delay in disclosure; and it goes to undermine the [d]efense's theory that these three individuals fabricated the story at the prompting of [D.P.]
[On the second prong], clearly the crimes are very similar in that the victims were all about the approximate same age when the offense occurred.
. . . .
[I]t appears that [d]efendant is charged with sexually assaulting prepubescent females. In each case he engages in . . . similar conduct. They're essentially, the same type of offense.
Now, the time span is quite significant, but as the [p]rosecutor argues[,] [defendant] was a fugitive for some time and he also spent some time in prison which somewhat closes the gap. And I think the manner in which other evidence of a crime is being used in motivation, places less emphasis on a need for temporal proximity. So, therefore, the second prong is satisfied.
[The] [t]hird prong requires that the evidence of the other crime must be clear and convincing. Apparently, all three victims described in detail the events that occurred to them. They gave taped statements to the investigators. And S.P. made a disclosure after she . . . wrote a poem in which she described or made references to the assault in a very general, vague manner by [defendant].
She . . . implicated [defendant] in a statement to the police. The manner in which this occurred provides a ring of truth to the admission. It appears that it wasn't prompted, at least the manner in which the victim spontaneously and on her own brought this to the fore in her poem. So their statements of what had occurred to them and their descriptions of what occurred does provide clear and convincing evidence of the assault.
Now, [on the fourth prong], the probative value has to substantially outweigh the apparent prejudice. . . .
In the weighing process, the [c]ourt should also consider the availability of other evidence that can be used to prove the same point. I don't know what other evidence the State would have. It's not been made evident to rebut this defense of fabrication or to explain a delay in disclosure.
So this information is highly probative. It's clear that any such evidence . . . would impose some degree of prejudice or would inject some prejudice into the case.
I find that [the] prejudice . . . inherent in the offenses that are going to be brought to the attention of the [j]ury through the use of the other crimes is substantially outweighed by the probative value for which this evidence is being introduced.
So, therefore, I find that the State has satisfied the four-prong Cofield test. And, therefore, under [404](b), that evidence would be admissible if the cases were tried separately and, therefore, it's appropriate to try the . . . [charges] related to three separate victims together.
The judge properly described the applicable standard of proof and carefully evaluated each prong of the Cofield test. Other-crimes evidence is "inherently prejudicial," Gillispie, supra, 2 08 N.J. at 89, but the judge properly concluded that the probative value in this case is not outweighed by the apparent prejudicial effect. This is especially so considering defendant's defense during trial was that D.P. induced S.P., E.P., and S.M. to fabricate the allegations against defendant and wanted all the charges to be tried together to bolster this defense.
III.
We also disagree with defendant that (1) the State violated the court's order excluding defendant's prior convictions, and (2) the judge erred by failing to issue a curative instruction after D.P. purportedly testified that defendant had been in jail.
Prior to trial, the court granted defendant's motion to exclude defendant's prior convictions for second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant committed these offenses against N.P. during the same period when he committed the offenses against S.M. and E.P.
--------
At trial, D.P. testified using a Spanish interpreter and during cross-examination by defense counsel, defendant asserts that D.P. made a comment about defendant being in jail. The parties argued at sidebar that the interpreter translated D.P.'s comment to English but the judge concluded that the interpreter did not. Defense counsel then chose to rephrase her questions and continued cross-examining D.P. rather than request curative instructions.
Although defendant points out that the interpreter, the prosecutor, and defense counsel agreed at sidebar that the comment was translated, it is unclear from the transcript itself whether the comment was actually translated for the jury. We are obliged to "'give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Thus, we are guided by the judge's finding that no translation was made.
Furthermore, even if the comment was translated for the jury, the comment only alerted the jury that defendant had been incarcerated previously. The comment did not reveal the nature of the underlying offense, which was the prejudicial aspect of defendant's prior convictions. "[A] trial court has wide discretion in controlling the courtroom and the court proceedings," and any "[a]lleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ, 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008).
IV.
We decline to address defendant's contentions regarding reconsideration of the admissibility of CSAAS evidence as it was not presented by defendant in the trial court. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note that our Supreme Court has long held that CSAAS evidence has a "sufficiently reliable scientific basis to allow an expert witness to describe traits found in victims of such abuse to aid jurors in evaluating specific defenses." State v. J.Q., 130 N.J. 554, 556 (1993); see also State v. W.B., 205 N.J. 588, 609 (2011) (indicating that "[t]he use of [CSAAS] expert testimony is well settled"). Therefore, we are "bound to follow the dictates of the [New Jersey] Supreme Court," until it holds otherwise. Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 362 (App. Div. 2012) (alteration in original) (citations and internal quotation marks omitted), certif. denied, 213 N.J. 45 (2013).
V.
Defendant's sentence is not excessive. Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not disturb a sentence that is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). When sentencing a defendant, the trial court must consider the relevant aggravating and mitigating factors under N.J.S.A. 2C:44-1a and -1b, "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
We reject defendant's contention that serving his fifty-year sentence at the Adult Diagnostic and Treatment Center, where parole eligibility is determined by satisfactory progress and not by his twenty-three-year parole ineligibility period, is tantamount to a life sentence. The judge properly imposed the requisite "specific period equal to or less than the maximum statutory term for [his crimes]," State v. Dittmar, 188 N.J. Super. 364, 367 (App. Div. 1982), and depending on defendant's progress, he may not be required to serve all fifty years as defendant is parole eligible after twenty-three years.
The judge also did not double-count aggravating factor number two (gravity and seriousness of the harm inflicted), or fail to provide sufficient factual support for aggravating factors numbers six (the seriousness of defendant's prior criminal record) and nine (the need for deterrence), as defendant argues. During sentencing, the judge stated regarding aggravating factor number two that
based upon the great emotional damage done to these individuals, I heard the victims testify, the adult children testify, and the younger victim, and the fact that she has undergone therapy, continues to undergo therapy, that their response reflects the gravity and the seriousness of the harm that was inflicted.
I do find as an aggravating factor, the gravity and seriousness of the harm inflicted on the victim, including whether or not the defendant knew, or reasonably should have known, that the victims of the offense were particularly vulnerable, or incapable of resistance, due to
. . . .
their extreme youth. Although, I understand that is an element of their extreme youth, under thirteen.
But they're also substantially incapable of exercising normal physical or mental powers of resistance. And the defendant did manipulate these individuals. Took advantage of his biological or familial relationship with these children, which is not . . . an element of the offense, and did it so often, that it caused great damage. That's why that aggravating factor applies.The judge clearly based his findings on not only the victims' youth but also their diminished mental power of resistance due to their relationship to defendant.
As for defendant's prior record and seriousness of the offenses convicted (factor six) and need for deterrence (factor nine), the judge sufficiently explained his findings of aggravating factors and his findings are supported by credible evidence in the record. See State v. Case, ___ N.J. ___ (2014) (slip op. at 28). The judge found that
although the defendant does not have a long criminal history, he has a prior history of a similar offense.
I also find that there is a need to deter the defendant and others from violating the law. These are very, very, very serious crimes. Crimes against children are treated very harshly. And, therefore, I find that as an aggravating factor.
These aggravating factors are supported by my findings that the defendant is a very dangerous man, who preys on young girls. He is manipulative and very intelligent, and refuses to acknowledge any culpability in these offenses.
Defendant's one prior conviction was for sexually assaulting N.P. when she was a child, which he then repeated with three different family members. This conviction is gravely serious and yet it clearly did not deter him from committing the same offense on the rest of his family.
Therefore, there is no reason to second-guess the judge's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Fuentes, 217 N.J. 57, 70 (2014) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
VI.
We agree with defendant that remand is required to determine the proper period of parole ineligibility for the conviction on Count Four.
During sentencing, the judge stated that
defendant must serve [eighty-five] percent of the maximum term before being eligible for parole on [Count One], and must also serve eight years before he is eligible for parole, on [Count Four]. Which results in a total sentence of [fifty] years, with a parole ineligibility period in excess of [twenty-three] years.The oral sentence is consistent with the terms on the JOC. However, defendant points to the subsequent colloquy after the judge imposed defendant's sentence, where defense counsel sought clarification about defendant's sentence, to which the judge stated:
[(Emphasis added).]
[defendant is] being sentenced to [fifty] years in prison. He is not eligible for parole, at a minimum of [twenty-three] years.Although the judge clearly said eight years during sentencing on Count Four, he also stated that the total ineligibility period is twenty-three years. Twenty-three years corresponds with a seven-year, not an eight-year, period of parole ineligibility on Count Four plus the 16.15 years on Count One.
. . . .
I imposed in this case, a mandatory No Early Release, of [eighty-five] percent, which resulted in 16.15 years. And I also imposed a discretionary parole ineligibility period of seven years, which bring us to the [twenty-three years].
[(Emphasis added).]
"Where there is a conflict between a judge's written or oral opinion and a subsequent written order, the former controls." Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002); see also State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956) (indicating that "where there is a conflict between the oral sentence and the written commitment, the former will control if clearly stated and adequately shown, since it is the true source of the sentence, instead of the latter which is merely the work of a clerk").
Although there is no conflict between the judge's oral sentence and the JOC, there is some ambiguity between the oral sentence and the judge's subsequent oral statements as to whether he intended seven or eight years on Count Four. We therefore remand, direct the judge to determine defendant's parole ineligibility period on Count Four, and issue an amended JOC if warranted.
We affirm the convictions and remand for further proceedings on the sentence consistent with this opinion. 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