Opinion
DOCKET NO. A-2411-11T2
08-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.M.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-08-1409. Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant T.M.S. was charged by a Bergen County grand jury in Indictment No. 10-08-1409, with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and 2C:14-2(a)(2)(c) (counts one, two, three and five); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count four); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count seven).
Following his conviction by a jury on all counts, the trial judge denied defendant's motion for a new trial and sentenced him to two consecutive eighteen-year terms of imprisonment on counts one and five, subject to the 85% parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive ten-year flat term on count seven, concurrent eighteen-year terms on counts two and three, a concurrent ten-year term on count four, and a concurrent five-year term on count six. Parole supervision for life, applicable penalties and assessments were also imposed.
On appeal, defendant challenges his conviction and sentence, arguing:
POINT I
THE ADMISSION OF TESTIMONIAL HEARSAY, INDICATING THAT AN ANONYMOUS TIP HAD IMPLICATED DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS 1,9,10 (NOT RAISED BELOW).
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises several arguments challenging the probable cause to support the arrest warrant, which he characterizes as follows:
POINT I.Following our review of the arguments advanced in light of the record and applicable law, we affirm.
THE PROSECUTOR COMMITTED PLAIN ERROR PURSUANT TO RULE 2:10-2, SPECIFICALLY, THE PROSECUTOR FAILED TO REFRAIN FROM PROSECUTING A CHARGE THAT THE PROSECUTOR CLEARLY KNEW WAS NOT SUPPORTED BY PROBABLE CAUSE. THE PROSECUTOR'S NEFARIOUS ACTS WERE IN CLEAR VIOLATION OF RULE 3.8(A) "SPECIAL RESPONSIBILITIES OF A PROSECUTOR" OF THE LAWYERS RULES OF PROFESSIONAL CONDUCT. THE FORBIDDEN AND MALICIOUS PROSECUTION CLEARLY VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EQUAL DUE PROCESS OF THE LAW. CONST. AMEND. 4TH, 5TH, 6TH AND 14TH AMENDS.
POINT II.
PROSECUTING ATTORNEY (MR. DAVID V. CALVIELLO) COMMITTED REVERSIBLE ERROR, DURING THE PROSECUTOR'S OPENING AND CLOSING ARGUMENTS (MR. CALVIELLO) ERRONEOUSLY AND REPETITIOUSLY VOUCHED FOR THE VICTIM'S CREDIBILITY ON SEVERAL DIFFERENT OCCASIONS. IN ADDITION, STATES WITNESSES (DETECTIVE MICHAEL) AND [E.W.] IMPROPERLY VOUCHED FOR THE VICTIM'S CREDIBILITY. DESPITE THE CLEAR FACT THAT TRIAL COUNSEL NEVER MADE ANY TIMELY OBJECTIONS PURSUANT TO RULE 1:7-2 AND THE TRIAL JUDGE NEVER GAVE ANY PROMPT CURATIVE JURY INSTRUCTIONS PURSUANT TO RULE 2:10-2(5)4.3. THOSE FACTS ALONE DOES [SIC] NOT RECTIFY THE BLATANT CUMULATIVE PREJUDICIAL ERRORS THAT OCCURRED DURING THE DEFENDANT'S TAINTED JURY TRIAL. THUS, THE ASSORTED PREJUDICIAL ERRORS CLEARLY DENIED THE DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN
IMPARTIAL JUDGE AND JURY. U.S.C.A. 5TH, 6TH AND 14TH AMENDS.
I.
These facts are taken from the record of the eight-day jury trial. Defendant's wife, P.S. moved to the United States from the Caribbean island of St. Vincent in 1997. She had two children, C.H. and R.H. In 2000, P.S. met defendant. Defendant had three children, who at that time lived with their biological mothers. Defendant and P.S. married in October 2003. The following month, defendant, P.S., C.H. and R.H. moved into a two-family home in Hackensack. In 2004, defendant and P.S. had a daughter, S.S. About this time defendant's eighteen year-old daughter A.S. began residing in their home. During the summer of 2009, P.S.'s adult niece moved into the residence, as R.H. had moved out. In the fall of 2009, P.S. began working the night shift. Defendant or P.S.'s niece would care for C.H. and S.S.
In mid-April 2010, C.H. and her best friend, C.A., were texting, each complaining about life's difficulties. In an effort to emphasize the difficulties she faced, C.H. texted to C.A. "at least you don't have a rapist of a stepfather to worry about." C.H. did not disclose any details to her friend, but told her "when it had started."
The following day, C.H. texted another friend E.W. and revealed the abuse. E.W. was "shocked," and told C.H. she "should tell [her] mom or tell someone about it."
On April 17, 2010, P.S. and C.H. got into an argument, and C.H. went to her room. From her room, C.H. texted P.S., stating "I don't care if you believe me or not but [defendant] was molesting me since I was five years old. I mean since I was eight years old." P.S. rushed to C.H.'s room, and told her she "need[ed] to tell [her] what's going on." C.H. insisted she was not lying; "all she said was that he touched me." C.H. did not tell P.S. where defendant touched her and shook her head when P.S. asked whether he had sexual intercourse with her. P.S. insisted they go to the police station, but C.H. resisted.
After C.H. refused to go to the police station, P.S. called defendant, but she "dropped the phone, the phone closed, he called back, [she] didn't pick up. He called [C.H.'s] phone. . . . She sa[id] its [defendant]." At P.S.'s direction, C.H. answered the phone, putting defendant on speaker phone. Defendant asked "what's wrong with your mom?" C.H. informed him that she told P.S. "everything." He asked, "Why would you tell her some shit like that?"
When defendant arrived home, P.S. asked him, "what did you do to [C.H.]?" Defendant said, "I didn't do nothing to that girl and [C.H.] was standing right there and she said yes you did. You touched me. And he said I didn't do anything to you." Defendant and P.S. spoke alone, and he insisted he did not do "anything to that girl." During this conversation, defendant abruptly suggested the family order Chinese takeout for dinner, and they all rode together to pick up the food. After dinner, P.S. and defendant discussed whether defendant should move out and that evening defendant slept on the couch while C.H. and S.S. slept in the master bedroom with P.S.
On April 20, 2010, Luke Drummond, a Division of Youth and Family Services (the Division) caseworker, contacted the Juvenile Division of the Hackensack Police Department and the Bergen County Prosecutor's Office after receiving an "anonymous call" regarding "allegations of abuse going on in [C.H.'s] home." The Hackensack Police Department then contacted Edward Meneses, the resource officer assigned to Hackensack Middle School, who located C.H. and escorted her to the police station, allowing officials "to speak to her about the allegations."
On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).
C.H. was interviewed separately by Detectives Michael Capone and Niles Malvasia. She described six incidents of abuse by defendant that occurred over the previous five years. C.H. also related these incidents at trial.
When C.H. was eight years old, defendant was watching C.H. and S.S. while P.S. worked. C.H. was sleeping on the living room floor when defendant entered "laid on top of [C.H.], . . . pulled [her] shirt up and he started trying to pull [her] pants down[,]" and rubbed her vagina with his penis. Despite C.H.'s protest as she said "no, I don't want to do this[,]" defendant reassured her "it's okay, don't worry about it. Don't worry it won't hurt." After approximately a minute and a half, defendant "ejaculated and he just got up and went to the bathroom to clean off."
C.H. recounted two instances when defendant forced her to perform fellatio. One incident occurred in defendant's van when C.H. was ten years old. Defendant drove C.H. to the store to purchase supplies for her science project. When they returned to the van, defendant told C.H. to get in the back. Despite her protests, defendant "took [her] by [the] arm and he pulled [her] into the back seat[,]" which contained a "long couch looking seat that went all the way back if you pressed a button in the front" and the rear windows had curtains. Defendant pulled up C.H.'s shirt and removed her pants, kissed her breasts and rubbed his penis against her vagina. He then told C.H. to "suck this" and forced her to put her mouth on his penis. When he was finished he told her to rinse her mouth with Listerine, which he kept "under the cup holders." Defendant then "wiped himself off" with a paper towel, and drove home.
The second time occurred when C.H. was eleven years old. C.H. had called P.S. to pick her up from school because she was sick; defendant went to the school. As soon as C.H. and defendant arrived home she used the bathroom. When C.H. exited the bathroom, defendant "had closed the bedroom door . . . and he pulled his pants down and told [her] to suck this. And said [she did not] want to, and knew he wouldn't leave until [she] did. So [she] did." After defendant ejaculated, C.H. "spit his semen out in the garbage" and rinsed her mouth out.
C.H. also recounted an instance during a trip to Newark to purchase DVDs where defendant performed oral sex on her. Additionally, when she was twelve years old, C.H. accompanied defendant to retrieve his mail from his mother's home. C.H. stated while in the backseat of defendant's van, he rubbed his penis against her vagina.
C.H. told police of those times defendant unsuccessfully attempted sexual intercourse. Defendant woke C.H., who was sleeping in bed with P.S. and S.S., and "grabbed [her] by [her] arm and he pulled [her] into the living room, and laid [her] on the couch." After presumably going to retrieve a condom, defendant "tr[ied] to fully penetrate [C.H.]" However, he was "[n]ot fully . . . able to get . . . inside [her] vagina[.]" On another occasion, defendant attempted to perform anal sex on C.H., but "that only lasted a few seconds, because [she] said ouch or ow and then he stopped."
During their investigation, police also interviewed defendant's children A.S., B.S. and F.S., as well as C.H.'s friends, C.A. and E.W. C.H. underwent a medical evaluation for "possible sexual abuse" performed by Dr. Paulett Diah, a board certified physician in child abuse and general pediatrics. Dr. Diah interviewed C.H., who told her she "got molested by [her] step-father." C.H. informed Dr. Diah defendant engaged in digital, and vaginal penetration along with "oral vaginal contact." C.H. denied any anal contact and stated the last time defendant molested her was in March 2010.
Dr. Diah performed a physical examination, which included a pelvic and anal examination. She noted C.H. "had some marks or scars on her body" and C.H. was able to provide "innocent explanation[s]" for "most of the injuries that she had on the body." There were "no findings . . . of the anus, or of her genital or her urinary areas." Further, the examination revealed "[n]o acute or chronic anogenital injury." Discussing her findings, Dr. Diah stated:
In this case to better understand the result of [C.H.'s] genitourinary examination one should consider the type of activities which she described, whether or not she was pubertal at the time of contact, whether or not there was injury and the possibility of healing said injury. In this case [C.H.] disclosed digital/vaginal penetration, attempted penile/vaginal penetration and oral/vaginal contact. Oral/vaginal contact may not result in injury so that a normal examination may be obtained. When considering vaginal penetration one should consider that [C.H.] is pubertal. At puberty, estrogen effects on the genital tissues (which includes the hymen) result in tissue that is thickened, lubricated and elastic. These characteristics reduce the likelihood of injury from penetrating trauma. A normal examination is not unusual in this setting. Superficial injury such as bruises or abrasions to the genetalia could have occurred at the time of the contact that may have now healed without residua.Dr. Diah concluded the "normal examination . . . neither confirms nor denies the possibility of sexual abuse. [C.H.'s] disclosure should not be discredited."
Defendant did not testify. He presented testimony from two of his children, his sister and a coworker. The family members related his and her observations of C.H.'s interactions with defendant over the years, noting they were close, affectionate and interacted appropriately. There was no sign of tension or discomfort. Defendant's children also discussed their relationship with defendant, who they described as a good father. All the witnesses asserted defendant had a reputation for being honest, hardworking, and providing for his family.
Following his conviction of all charges, defendant moved for a new trial. His motion was denied. This appeal ensued.
II.
A.
Appealing his conviction, defendant argues he was denied a fair trial as a result of Detective Capone's statement informing the jury the Division received an anonymous tip of abuse, which "left the jury with a clear impression that defendant had been implicated in sexual abuse by someone besides the alleged victim, [C.H.]." Defendant maintains the anonymity of this third-party informant deprived him of the right to confront the anonymous caller and dispute the allegations, as expounded in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The State responds Detective Capone's testimony was properly introduced to demonstrate the basis of the officer's actions, showing his decision to investigate was not arbitrary. Further, the statement was not offered for the truth of the matter asserted, but merely to support why he acted. Finally, the State notes Detective Capone never suggested the anonymous caller identified defendant as the perpetrator.
At trial this colloquy occurred:
[THE PROSECUTOR]: Can you just summarize for us briefly . . . how you got involved in this investigation.After explaining who called, who else was contacted, how C.H. was located and brought to the police station, and who was involved in her interview, the subject was again raised as follows:
[DETECTIVE CAPONE]: The day of the incident I was assigned to work the day shift, and [the Division] ha[d] contacted our [Youth and Juvenile] Division along with the Prosecutor's Office of the allegations of a student being abused.
Q: Can you tell the [j]urors . . . your understanding of how this incident was reported to law enforcement?
A: It came in through an anonymous call through [the Division].
Q: As of today have you been able to identify who the caller was?
A: No, I haven't.
Because defendant did not raise a Crawford challenge at trial, our "review of an alleged error is guided by the plain error standard, that is, whether the error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Defendant maintains the use of this evidence "implicates constitutional questions under the Confrontation Clause, so the appropriate plain error analysis would address whether any constitutional error was harmless beyond a reasonable doubt." State v. Basil, 202 N.J. 570, 615 n.5 (2010) (Rabner, C.J., concurring in part and dissenting in part) (citations omitted).
The Sixth Amendment's Confrontation Clause, which applies to the states by way of the Fourteenth Amendment, guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him[.]" It bars the admission of "'[t]estimonial statements of witnesses absent from trial' except 'where the declarant is unavailable, and only where the defendant had a prior opportunity to cross-examine'" that witness. State v. Dehart, 430 N.J. Super. 108, 114 (App. Div. 2013) (quoting Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 1374, 158 L. Ed. 2d at 197).
Detective Capone's trial testimony regarding the Division referral was offered to provide context as to why he requested to interview C.H. in an investigation. Certainly, "such testimony explains his subsequent conduct and shows that the officer was not acting in an arbitrary manner." Ibid. (citing State v . Bankston, 63 N . J . 263, 268 (1973)).
The issue requires examination of the hearsay statement as related in the testimony. In Bankston, the Court explained the hearsay rule is not violated when a police officer testifies during a criminal prosecution that he took certain action based "upon information received." Bankston, supra, 63 N . J. at 268 (citation and internal quotation marks omitted). "However, when the officer becomes more specific by repeating what some other person told him concerning the crime by the accused the testimony violates the hearsay rule . . . [and] the accused's Sixth Amendment right to be confronted by witnesses against him." Id . at 268-69 (citations omitted).
The Court clarified these concepts in State v . Branch, 182 N . J . 338 (2005). In that matter, a police officer was asked to explain why he included the defendant's photo in an array. The defendant was charged with burglary and armed robbery based on identification evidence by two witnesses. Id . at 346-47. At trial, "a police detective testified that he included [the] defendant's picture in a photographic array because he had developed [the] defendant as a suspect 'based on information received.'" Id . at 342. The Court found "[t]here was no legitimate need or reason for [the detective] to tell the jury why he placed [the] defendant's picture in the photographic array. The only relevant evidence was the identification itself." Id . at 348. Because the jury heard irrelevant, "gratuitous hearsay testimony[,]" which violated the defendant's right to confrontation and the rules of evidence, the Court found this plain error required reversal. Ibid .
When a police officer testifies concerning an identification made by a witness, such as in this case, . . . [w]hy the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source.
[Id. at 352 (citation omitted).]
In Dehart, we found the Confrontation Clause was violated by admission of police testimony that related an unidentified witness's statements identifying defendant as a perpetrator of an armed robbery. Dehart, supra, 430 N . J . Super. at 110, 113. Finding the detective's testimony "clearly hearsay[,]" we examined the facts and stated:
[The] defendant's identification, or misidentification, was the main issue at trial. The suspect's face was not visible
on the surveillance video. While [the victim] was able to give a description of the perpetrator, there was nothing linking [the] defendant to the crime until an anonymous source told [the victim], who then told [the detective], that [the] defendant was the culprit. Permitting this double hearsay into evidence deprived [the] defendant of his right to confrontation.
[Id. at 115.]
Guided by these principles, we cannot agree Detective Capone's statements violated defendant's rights of confrontation. Clearly, the statements were offered not for their truth, but to explain why he interviewed C.H. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 316 (2006) (noting hearsay evidence "may be admissible if it is adduced not for its truth, but for another purpose, for example, its effect upon a listener."). Detective Capone's brief response that he received a call from a Division caseworker relating an anonymous call that abuse occurred in C.H.'s home imparted only the basis of his conduct. No testimony related the anonymous caller's out-of-court statements or implicated defendant as the alleged abuser. Bankston, supra, 63 N.J. at 272. These statements did not convey an "impression that the detective had some other knowledge implicating defendant in the crime." Dehart, supra, 430 N.J. Super. at 115 (citation omitted).
Therefore, we conclude the brief comments do not rise to the plain error found in Branch or Dehart. Rather, Detective Capone's testimony was admissible and no error is found.
B.
Defendant also challenges his sentence as excessive. Specifically, he maintains the judge erred when weighing aggravating factor two, N.J.S.A. 2C:44-1(a)(2), by improperly considering the harm his conduct caused his family, rather than the victim. Further, he argues the court erred in imposing consecutive sentences.
In our review we must first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental purpose of the sentencing guideline is to assure the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367. We next determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.
Our role is limited. State v. Lawless, 214 N.J. 594, 606 (2013). When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "'not sit to substitute [our] judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court). See also State v. Cassady, 198 N.J. 165, 183-84 (2009) ("[O]ur task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'").
Applying these standards, we identify no basis to disturb defendant's sentence. We find the trial court properly identified and balanced applicable aggravating and the lack of mitigating factors, which was supported by sufficient credible evidence in the record. State v. Carey, 168 N.J. 413, 426-27 (2001). We conclude the judge's consideration of the harm to the families affected by defendant's conduct was in addition to her consideration of "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to . . . extreme youth[.]" N.J.S.A. 2C:44-1(a)(2).
We reject defendant's argument that the judge erroneously expanded the application of N.J.S.A. 2C:44-1(a)(2) as proscribed by the Court in Lawless. See Lawless, supra, 214 N.J. at 611 ("[T]he 'victim,' for purposes of aggravating factor two, is the individual against whom the offense is committed.") Although the trial judge began her remarks by noting defendant "destroyed two families[,]" and "destroyed the lives, . . . of [his] children[,]" she solidly based her application of factor two on defendant's harm to C.H.:
When [C.H.] testified, she specifically talked about the fact that she was in high school. So not only was she ripped from this . . . extended family that she had with your other children from your previous marriage, she was also ripped from her life — you know, from her home, from her community, from her high school.We find no error.
[H]er high school [years] should have been wonderful. They should have been spectacular. They should have been full of happiness. They should have been about planning a prom, about graduating, making her parents proud, but that's not what [C.H.] went through. [C.H.'s] life was pure hell and you destroyed that happiness that every child should grow up with. Her memories of her childhood is of horror.
And it's ironic that, in the beginning you spoke and said that you feel like you are a POW — prisoner of war, well you actually made [C.H.] a prisoner. And she used the same word in her impact statement that she felt like a prisoner in her own home, in a jail cell of sexual horrors. Something [like] she got the lifetime sentence; she's never going to get over this. She will become a stronger person because of what happened to her, but the pain will always be there.
And everything that she wrote in her impact statement, and was said today, is all still true; it is a life sentence for her. And every time that she goes to have intimacy with a man, she will always, forever have to deal first with the horror of her memory, before she could even be intimate with another person.
And who is to blame for that? You. Someone who she loved; there's no question, I saw her testify. . . . .
So the question is, she gets a life sentence because of what happened, so what should you get? Should you not also get a life sentence, for what you did to her? And . . . the horrors that she will have to face the rest of her life. That's really what the issue is here.
Defendant also contends consecutive sentences were unwarranted because his crime involved "a single victim in an ongoing course of conduct[.]" Defendant believes the length of his aggregate sentence was "unfair" and must be modified.
When determining whether consecutive, rather than concurrent sentences should be imposed, a sentencing court should examine whether: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). These five factors are to be applied qualitatively, rather than quantitatively and, in determining the appropriate sentence, the court must ensure there are no free crimes. Id. at 639.
"There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a). However, "[w]here separate crimes grow out of the same series of events or from the same factual nexus, consecutive sentences are not imposed." State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994), certif. denied, 142 N.J. 453 (1995). The imposition of "[c]onsecutive sentences [is] not an abuse of discretion when separate crimes involve separate victims, separate acts of violence, or occur at separate times." State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999) (citations omitted), certif. denied, 164 N.J. 189 (2000).
The trial judge sentenced defendant to eighteen years imprisonment, subject to NERA on counts one and five, to run consecutively. The judge noted the sexual assaults in these two counts were distinguishable warranting separate sentences because the conduct occurred prior to C.H. turning thirteen and after she had done so. She also noted count one involved penetration. Count five also occurred when C.H. was older, it took place outside the residence, and involved a different offense.
Also, defendant was sentenced to a consecutive term of ten years on count seven. The judge stated:
On the endangering, which is the last count, count seven. That count provides that [defendant] had a legal duty to care for [C.H.]. And [defendant] caused [C.H.] harm; [defendant] made . . . [C.H.] suffer this, time and time again. And it's all because [he] had a parental duty not to do it. And [he] had a parental duty to protect her, love her, cherish her but [he] violated that parental duty.
. . . .
So, this endangering is not included in the aggravated sexual assault. It doesn't merge with the aggravated sexual assault, with the sexual acts of penetration, because this is a whole nother (sic) duty that [defendant had] to this child. And that was to be one of a parent, and not to . . . hurt this child.
And pursuant to State [v.] Miller, 108 N.J. 112 (1987), . . . it does not merge into any of the sexual assault counts. These are different because it's a different, specific violation . . . of a specific duty. So that count will run consecutive to counts one and five.
[(Emphasis added).]
We do not discern an abuse of discretion or deviation from the legal principles that govern sentencing. The court carefully considered the facts of each conviction, the permissible range of each sentence, weighed the aggravating and non-existent mitigating factors, and followed the guidelines in Yarbough. Although the crimes involved the same victim, the facts support the judge's conclusion to impose consecutive sentences. We have no basis to interfere with the sentence imposed. Cassady, supra, 198 N.J. at 183-84.
C.
In his pro se brief, defendant first argues there was insufficient evidence to establish probable cause in support of the warrant for arrest. He maintains his arrest was illegal, requiring his conviction to be set aside. Defendant believes the "victim's unfounded statements," along with the statements of her friends and "alleged inconsistencies" in his statement to police were insufficient to provide probable cause for a warrant. He is incorrect.
Probable cause is less than proof needed to convict, but more than a mere suspicion. Schneider v. Simonini, 163 N.J. 336, 349-50 (2000). It exists where, given the totality of the circumstances, there is a "'fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Moore, 181 N.J. 40, 46 (2004), (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). The central component of probable cause "is a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003). This standard for probable cause is identical under both the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution. State v. Novembrino, 105 N.J. 95, 122 ( 1987), (quoting Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548.)
"When a search or seizure is made pursuant to a warrant, the probable cause determination must be made based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously." Schneider, supra, 163 N.J. at 363. Such warrants must be based on "sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005) (citing Novembrino, supra, 105 N.J. at 120).
The warrant recited C.H.'s interview, recounting in detail six specific incidents of abuse; P.S.'s interview, in which she stated how she learned of defendant's abuse of C.H., which she believed; R.H.'s statement that on one occasion defendant repeatedly asked her "what is good with that ass," which "bothered" her; and C.A.'s and E.W.'s statements recounting when and what C.H. told them about the abuse. Additionally, it included defendant's interview comments. When asked "what he would like to see happen to somebody that did this to a child[,]" defendant responded that he "would want to see if she provoked it, caused it or if she was being stalked." When asked whether he would take a lie detector test, defendant stated that he was "tired and stressed" and that "he might take a lie detector test in two to three months from now."
Defendant failed to submit the warrant. However, the following information was contained in the police investigation report.
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We have no difficulty concluding probable cause to obtain a warrant for defendant's arrest was presented within the four-corners of the affidavit. Police considered C.H.'s statement and interviewed several witnesses who provided information consistent with C.H.'s account of events.
D.
Defendant next argues prosecutorial misconduct occurred during the State's opening statement, examination of its witnesses and in summation, which amounts to "erroneously and repetitiously [sic] vouch[ing] for the victim's credibility." In support of this argument, defendant identifies several statements in the prosecutor's opening and summation which he maintains deprived him of a fair trial.
Where, as here, there is no objection to the prosecutor's statements at trial, defendant cannot prevail without showing plain error — error clearly capable of prejudicing defendant's right to a fair trial. State v. Timmendequas, 161 N.J. 515, 576-77 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). This standard is a "'fair trial' test." Id. at 575. "[T]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Ingram, 196 N.J. 23, 43 (2008) (citation and internal quotation marks omitted).
Defendant lists these statements as prejudicial. In his opening, the prosecutor stated:
So, Mr. Prosecutor, how are you going to prove your case? What I'm going to start with is telling you what you're not going to hear; all right. If any of you . . . I call it the "CSI [effect]" — you know, if any of you are here waiting for that DNA . . . forensic evidence, including semen, and hair, and blood, and fiber — you're not going to have that in this case.
If you're looking for videotapes of the crimes, it's not going to happen. If you're looking for confessions, it's not going to happen, all right. That's the kind of evidence that you are not going to hear in this case.
So, what evidence do we have? What the State is offering to you, ladies and gentlemen, is evidence — what's known as "direct evidence". It's evidence from the only witness to the crime. Evidence from the victim; the one who lived it and experienced it; and who will come to this courtroom, as she had done previously, and testify under oath and tell you what happened in her life.
Additionally, defendant attacks the following statements:
So when she's being cross-examined, I'm going to ask you to judge her, but to also understand her and understand the totality of the facts in this case. Because as he
[defendant] is entitled to a fair trial, and he will get; she, too, is entitled to a fair trial, and she will get.
. . . .
Last, when all is said and done, four things will ring true in this courtroom, and I want you to make note of them. The first, [defendant], not only had the opportunity to commit these crimes, he had unfettered access to the child on numerous occasions, to complete these crimes without being caught.
Second, the child in this case, [C.H.] now 14, a freshman in high school. You will find her to be credible and believable, worthy of your conviction, after she's done testifying.
Third, you will also conclude that [C.H.] has absolutely no motive in this case to make up such an allegation, against someone who was so close to her, to her mother, and to her younger sister — the father of [S.S.]
And lastly, ladies and gentlemen, you will conclude that the defendant, indeed, is guilty of the sexual abuse of [C.H.].
We do not view these comments as rising to the level of impermissible vouching for C.H.'s credibility. See State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.) (stating although a "prosecutor may argue that a witness is credible . . . [he or she] may not personally vouch for the credibility of a State witness or suggest that the witness's testimony has been 'checked out'" (citing State v. Marshall, 123 N.J. 1, 156 (1991)), certif. denied, 151 N.J. 466 (1997). Unlike the statements this court examined in State v. Walden, 370 N.J. Super. 549, 561 (App. Div.), certif. denied, 182 N.J. 148 (2004), we cannot find these comments equate to "an expression of the prosecutor's personal belief in [the witness's] truthfulness[,]" or any statement, which "implie[d] that the jury can accept the witness's credibility based upon information outside the trial evidence" or the prosecutor's say so. The strategy is permissible. See State v. Cagno, 409 N.J. Super. 552, 604 (App. Div. 2009) (finding acceptable a rhetorical strategy that did not assure the jury that the witness was credible, "but instead ask[ed] the jury to find that the witness was credible."), aff'd, 211 N.J. 488 (2011).
Defendant also challenges the prosecutor's repeated summation comments, including C.H. "has no interest in the outcome[,]" "she has nothing to gain[,]" and similar statements. These remarks properly responded to defendant's trial strategy that assaulted C.H.'s credibility, by suggesting she repeatedly lied and added details as time went by, essentially "adding clothes" to her initial "naked" lie. This is nothing more than fair comment. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000) (citing State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993)).
Defendant also attacks the testimony of Detective Capone and E.W., suggesting they were asked to vouch for C.H. Certainly, the jury has "sole and exclusive province" to determine whether a witness is credible, and "the mere assessment of another witness's credibility is prohibited." State v. Frisby, 174 N.J. 583, 594 (2002). Having examined the record, defendant's contention is rejected.
During his redirect examination, the following colloquy occurred between the prosecutor and Detective Capone:
Q: Did [C.H.] or anyone during the course of the investigation give you any reason to doubt or find what she was saying was inconsistent during your investigation?Defendant objected to this testimony as non-responsive, which the trial judge sustained. The prosecutor rephrased his question, asking Detective Capone, "Did she give you any reason to, in the investigation, to doubt or call into question what she had been telling you?" Detective Capone responded: "No."
A: At no time. [C.H.], I mean she — She would have no benefit or no gain from —
Here, the objectionable testimony was addressed. Reversal is not required as we cannot find that this unsolicited, errant remark provided "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict that it otherwise might not have reached." State v. Galicia, 210 N.J. 364, 388 (2012) (alteration in original) (citations and internal quotation marks omitted).
Further, at the conclusion of trial, the jury was instructed that facts inserted into questions that were sustained "does not make those facts true" and that it was their duty alone to judge the credibility of the witnesses. We are satisfied this amounts to mere harmless error.
Similarly, defendant argues E.W. improperly bolstered C.H.'s credibility in two exchanges with the prosecutor. During her direct examination, E.W. testified C.H. told her defendant touched "her breast area and private area." The prosecutor then asked:
Q: How did you react to this information?
A: Uh, first, it was disbelief, but I know she wouldn't lie to me, so I believed her. And, after that, I kind of dropped the subject since it was weird to talk about.
On redirect, the prosecutor asked E.W.:
Q: [D]o you have any reason to — to know why [C.W.] would ever make up such a thing like this?
A: She's not a person to lie. She's never told me a lie before.
Defendant's objection followed and the trial judge excused the jury to consider arguments. The judge sustained the objection, and issued the following curative instruction upon the jury's return:
[Y]esterday you heard testimony from two witnesses, [C.A.] and [E.W.], . . . . And you had testimony from them as to whether or not they believed the victim and whether or not they believe[d] the allegations. There are certain rules that we have to follow and everybody has to follow them and that's one thing that is in your province only.
The only persons [who] are permitted to determine the credibility of any witness is the jurors. So, the testimony that you heard yesterday that it is their opinion that the victim was telling the truth is not to be considered during the course of your deliberations. You have to make your own independent evaluation in credibility findings of each and every witness. Is that understood?
The judge addressed the improper remarks. 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 is not warranted. See State v. Murphy, 412 N.J. Super. 553, 560-61 (App. Div. 2010) (devising the three-part test to determine "whether an improper comment denied defendant a fair trial and warrants reversal," to include whether timely objections were made; whether the errant remarks were withdrawn; and whether the remarks were stricken from the record and the jury instructed to disregard them).
We do not find prejudice that denied defendant a fair trial. The trial judge took great pains to instruct the jury to disregard opinion comments and struck the testimony. See State v. Koedatich, 112 N.J. 225, 323 (1998) (concluding that defendant's right to a fair trial was honored because "the defense objected, the objections were sustained, and the court issued curative instructions"). The judge repeated these directions when issuing her final instructions. Overall her directions to disregard the testimony were swift, direct and complete. See State v. Vallejo, 198 N.J. 122, 134 (2009) (for a curative instruction to be effective, "it must be firm, clear and accomplished without delay."). Defendant is entitled to a fair trial, not a perfect one. State v. R.B., 183 N.J. 308, 333-34 (2005).
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION