Opinion
DOCKET NO. A-3855-13T1
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT R. TOOHEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1627. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert R. Toohey appeals from his conviction, after a jury trial, of third-degree endangering the welfare of a twelve-year-old child, E.R. (Edwin), N.J.S.A. 2C:24-4(a) (count one); second-degree sexual assault of Edwin, N.J.S.A. 2C:14-2(b) (count two); third-degree endangering the welfare of a thirteen-year-old child, I.R. (Isaac), N.J.S.A. 2C:24-4(a) (count three); and fourth-degree criminal sexual contact in the presence of Isaac, N.J.S.A. 2C:14-3(b) (count four).
We utilize fictitious names for the victims, and the mother of one victim, to protect the victims' privacy. --------
The charges arose out of an incident on the morning of June 25, 2012 in Asbury Park. Defendant exposed his penis and masturbated in the presence of Edwin and Isaac while they walked on a public sidewalk. Defendant pursued the boys when they attempted to run away. He left only after the boys sought assistance from an adult. Police arrested defendant the next morning, after Isaac, walking alone, spotted him and sought help.
Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.
I.
The witnesses at trial were Edwin, Isaac, Isaac's mother L.R. (Lydia), and the arresting officer, Patrolman Dillon James Gourley. Although their accounts differ in minor details, the boys testified that as they walked on the sidewalk, they saw defendant riding his bicycle. Defendant wore very short shorts. He was about ten feet away, according to Edwin, and his penis was exposed. Defendant then stopped in front of the boys and began to masturbate. Edwin said he was five feet away; Isaac said ten. Both boys asserted they focused on defendant's face. Although he wore a hat, it did not impede their view.
Isaac said defendant had a mustache. In a statement given after defendant's arrest, Edwin said that defendant's lip looked swollen and he had a beard. In his arrest photo the next day, defendant had a mustache.
The boys ran, grabbing sticks for their self-protection. They ran through a park, but defendant followed them on his bicycle at a farther distance away. They continued to run, and he followed. They sought help from a woman on the street who appeared to be in nurse's garb.
The woman did not have a cellphone. Isaac removed his own cellphone but testified he did not have calling minutes. He said he used his phone to take a video of defendant, but that defendant was too far away to be identifiable. Edwin testified that he viewed the video, and he could see "[h]im riding the bike, following us." Gourley testified that he never saw the video. It apparently was not preserved, and was not presented at trial.
As the boys stood with the woman in the street, defendant rode away. The boys then ran to Isaac's home, where they told Isaac's mother Lydia what had happened. Lydia did not call the police.
The next morning, after Isaac had escorted his sister to school for summer classes, he spotted defendant standing near a laundromat. Isaac called his mother. Once she learned where he was, she told him to seek help from someone at the firehouse nearby. A firefighter called the police, and Gourley responded soon thereafter. Isaac explained what had happened the day before, and pointed out defendant, who stood in front of a pizza parlor, about thirty to thirty-five feet from where Gourley stood with Isaac.
Gourley approached defendant, and asked him to provide his whereabouts on the previous day. Defendant told Gourley that he was riding his bike in Ocean Grove and Asbury Park. Gourley arrested defendant.
Edwin identified defendant at trial as the person who exposed himself and masturbated in his and Isaac's presence on June 25, 2012. Isaac was unable to make an in-court identification. He said he could not remember what defendant looked like.
In the charge conference, the trial judge expressed his intention to deliver the model charges on both in-court and out-of-court identifications to address the boys' respective identifications. The judge rejected the defense suggestion to merge the two charges, concluding it would be confusing. The judge also stated he would delete sections of the charges that did not pertain to the case. In particular, the judge proposed to delete the section regarding exposure to sources that could affect the independence of the identification. The specific language the judge proposed to delete in both charges states:
You may consider whether the witness was exposed to opinions, descriptions, or identifications given by other witnesses, to photographs or newspaper accounts, or to any other information or influence, that may have affected the independence of his/her identification. Such information can affect the independent nature and reliability of a witness's identification and inflate the witness's confidence in the identification.
[Model Charge, Criminal, Identification: Out-of-Court Identification Only, at 8; Model Charge, Criminal, Identification: In-Court Identification Only, at 5.]
Defense counsel asserted that the "phrase about the witnesses should remain." She argued the jury could infer that the boys conferred among themselves, or with Lydia, about their description of defendant. Defense counsel did not contend at the time that the video constituted a "photograph" that influenced the boys' identification.
The judge rejected defense counsel's argument about witnesses affecting the independence of the identification. He explained:
There was no testimony that the boys conferred with each other or with anyone else prior to making their identification[,] and so I don't think there was any evidence to support even an inference of opinions, descriptions, or identification, photographs, newspaper accounts, or any other information or influence. There's no evidence of any of that, so I agree with the State that that should come out.
Nonetheless, the court's instructions as to each identification included statements from the model charge that the jury was "free to consider any other factor based on the evidence or lack of evidence in the case that you consider relevant in your determination of whether the identification was reliable." As to both identifications, the court instructed that if the identification "resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense, then you may consider that evidence and decide how much weight to give it." In the instruction on the in-court identification, the judge then stated, "If you instead decide that the identification is the product of an in-court identification procedure, the identification should be afforded no weight." In the instruction on the out-of-court identification, the judge added, "If you decide that the identification is the product of another factor[], the identification should be given no weight."
The defense theory was that defendant was a victim of misidentification. In summation, counsel highlighted differences in the boys' accounts, and discrepancies between Edwin's testimony and his post-arrest statement. Defense counsel also emphasized the police's failure to search defendant's laundry, and to ascertain whether he possessed the shorts and shirt that the boys contended he wore on June 25. Defense counsel also addressed the cellphone video, stating: "Ladies and gentlemen, where is the video? Where is the video? You better believe that if that video showed anything that matched what this description was you'd see the video."
In response, the prosecutor asserted the boys' identifications were reliable. They had ample time to focus on defendant's face, after seeing him multiple times. As for the video, the prosecutor contended that it was not essential, stating that "both boys say you can't see anything. You see him in a distance. You can't tell if it's him. The police don't even have it."
The jury returned its guilty verdict after less than an hour of deliberations. After merging count one into count two, the court sentenced defendant on the sexual assault conviction involving Isaac to a seven-year term of incarceration. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, he was to serve eighty-five percent of that term before parole eligibility. He was also sentenced to parole supervision for life. Regarding the offenses against Edwin, the court merged count three into count four, and imposed a one-year consecutive sentence on the fourth-degree criminal sexual contact conviction.
Defendant appeals and presents two points for our consideration:
POINT I
THE JUDGE'S JURY INSTRUCTIONS ON IDENTIFICATION WERE FLAWED BECAUSE THEY: FAILED TO POINT OUT THAT ONE OF THE TWO EYEWITNESSES TESTIFIED THAT THE PERPETRATOR WAS NOT PRESENT IN THE COURTROOM; WERE NOT TAILORED TO THE FACTS OF THE CASE; OMITTED LANGUAGE REGARDING HOW THE IDENTIFICATIONS MAY HAVE BEEN INFLUENCED BY OTHER PEOPLE OR PHOTOGRAPHS; AND FAILED TO NOTE HOW IN-COURT IDENTIFICATIONS ARE SUGGESTIVE. (Partially Raised Below).
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT WHEN SHE VOUCHED FOR THE COMPLAINANTS' CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. I, ¶ 10. (Not Raised Below).
II.
A.
We turn first to defendant's challenge to the jury instruction. It is axiomatic that "clear and correct jury instructions are fundamental to a fair trial . . . ." State v. Adams, 194 N.J. 186, 207 (2008). "[I]t is often important to mold jury instructions so that the jury clearly understands how the evidence in [the] particular case relates to the legal concepts addressed in the charge." State v. Gentry, 439 N.J. Super. 57, 72 (App. Div. 2015). On the other hand, tailoring of an instruction may not be essential if the facts, the parties' respective positions, and the legal principles were clear. State v. Angoy, 329 N.J. Super. 79, 85 (App. Div.), certif. denied, 165 N.J. 138 (2000). A "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997). When a charge is incomplete, "the fundamental issue is whether a more specific instruction was required. . . ." State v. Frisby, 174 N.J. 583, 598 (2002).
The failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). See also State v. Krivacska, 341 N.J. Super. 1, 43 (App. Div.) (finding, when defense did not request instruction, "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage . . . ."), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). "A claim of deficiency in a jury charge to which no objection is interposed will not be considered unless it qualifies as plain error . . . ." State v. R.B., 183 N.J. 308, 321 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).
In this context, "plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting Jordan, supra, 147 N.J. at 422). Also, an erroneous jury instruction must be "examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). The reviewing court must consider "the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Applying these standards, we discern no basis to reverse. In order to assure the jury's clear understanding of the instructions, the trial judge was not obliged to highlight, as defendant argues, that Isaac was unable to identify defendant in court, or that the boys' descriptions of their assailant differed in several respects. Nor was the court required to include, sua sponte, additional commentary on the inherent suggestiveness of in-court identifications. Such instructions would exceed case-specific tailoring and revise the model charge on in-court identifications, which was recently revised in light of the Court's reexamination of the law on identifications in State v. Henderson, 208 N.J. 208 (2011). See State v. R.B., 183 N.J. 308, 325 (2005) (stating trial court's obligation to deliver model charges); Mogull v. C.B. Comm. Real Estate Group, Inc., 162 N.J. 449, 466 (2000) ("It is difficult to find that a charge that follows the Model Charge so closely constitutes plain error."). In any event, the judge informed the jury that it should give no weight to Edwin's identification if it decided it was "the product of an in-court identification procedure."
Defendant's argument that the court erred in omitting the paragraph regarding outside influences raises questions of error and plain error. Defense counsel objected only on the grounds that the boys may have conferred among themselves or with Lydia. We find no error in the court's determination that there simply was no evidence to support the suggestion. None of the three witnesses were asked if they discussed their respective identifications among themselves.
Defense counsel did not argue at trial that the cellphone video constitutes a "photograph" that may have interfered with the boys' independent identifications. With respect to that aspect to defendant's argument, we search for plain error. We find none.
As a tactical matter, the defense apparently did not want the court to suggest to the jury that the identifications were based on the video, as opposed to the boys' independent identification. Defense counsel suggested in summation that the video did not clearly portray defendant; and if it did, the State would somehow have presented it.
If it were suggested to the jury that the boys may have relied on the video, as opposed to their independent recollections, that would have tended to bolster their identifications, not weaken them. Isaac testified he video-recorded the person who followed him and Edwin. There was no basis for the jury to believe Isaac filmed the wrong person. Viewing the video, if anything, would have reduced the risk of misidentification. By contrast, the omitted paragraph in the model charge is designed to inform the jury of the risk that a witness may misidentify a defendant by relying on the suggestiveness of an outside source — such as a line-up photograph, or the suggestive statements of another person. See State v. Chen, 208 N.J. 307, 327-30 (2011) (discussing suggestiveness of statements by private person).
In sum, we discern no error, let alone plain error, in the judge's jury instruction.
B.
It is well-settled that a prosecutor may not vouch for the credibility of a witness. State v. Frost, 158 N.J. 76, 85 (1999). "A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). A prosecutor should "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). A prosecutor may also respond to defense counsel's arguments regarding witness credibility. State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007); State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000).
Having carefully reviewed the prosecutor's summation, we are unconvinced that the prosecutor vouched for the boys' credibility. The excerpts highlighted by defense counsel are taken out of context. The prosecutor's argument that the boys were credible based on their demeanor and other evidence did not constitute vouching, notwithstanding that the prosecutor prefaced her argument with the words, "I submit." Nor did the prosecutor vouch for the boys when she said that the boys were respectful of both counsel and responded to both in the same way. The prosecutor was simply arguing that the boys did not display bias toward one questioner. When the prosecutor stated, "We looked at every detail that these boys had. They corroborate each other," the context clearly indicated that "we" referred collectively, to the jury and the prosecutor, which together heard the boys' detailed testimony. Thus, we find no merit in defendant's claim of prosecutorial misconduct.
C.
Although not raised by the parties, we are constrained to remand for reconsideration of the sentence. Both the pre-sentence report and judgment of conviction reflect that defendant was convicted of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), involving Edwin, on count three. However, endangering the welfare of a child under N.J.S.A. 2C:24-4(a) is graded only as a second-degree or third-degree offense, depending on whether the defendant has a legal duty, or assumed responsibility for a child's care.
In his sentencing decision, the trial judge recognized that the endangering count was of a higher degree than the criminal sexual contact count. Nonetheless, the judge merged the endangering count into the criminal sexual contact count. The court cited State v. Still, 257 N.J. Super. 255 (App. Div. 1992), in which we held that a conviction for endangering a child to whom the defendant owed no duty or responsibility of care merged into a conviction for sexual assault. However, when the crime in Still was committed, the endangering charge was a fourth-degree offense. That was changed by L. 1992, c. 6, § 1. In short, a third-degree endangering conviction does not merge into a fourth-degree criminal sexual contact conviction. Rather, the opposite is appropriate in this case, inasmuch as the endangering charge had the added element of conduct that would impair or debauch the child's morals. See N.J.S.A. 2C:1-8(a)(1).
As the court's sentence for counts one and two may have been affected by its sentence for counts three and four, we remand for reconsideration of the entire sentence.
Affirmed as to conviction. Remanded for reconsideration of sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION