Opinion
DOCKET NO. A-4938-09T3
03-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. W.L., Defendant-Appellant.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Kenneth Burden, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Burden, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0808.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).
Kenneth Burden, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Burden, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant W.L. was convicted of first-degree aggravated assault of S.H., N.J.S.A. 2C:14-2a (count one); second-degree sexual assault of S.H., N.J.S.A. 2C:14-2b (count two); and second-degree endangering the welfare of S.H., N.J.S.A. 2C:24-4a (count three). After merging count two into count one, the judge sentenced defendant to fifteen years' imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and imposed a consecutive seven-year term on count three.
Defendant raises the following points on appeal:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm defendant's convictions but remand the matter for re-sentencing.
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED DEFENDANT A FAIR TRIAL BY REPLAYING THE VIDEOTAPED INTERROGATION OF S.H. DURING JURY DELIBERATIONS WITHOUT FOLLOWING ANY OF THE PRECAUTIONARY PROCEDURES REQUIRED BY THE NEW JERSEY SUPREME COURT IN STATE V. BURR, 195 N.J. 119 (2008). U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1. (Not Raised Below)
POINT II
THE ADMISSION OF THE PRIOR OUT-OF-COURT VIDEOTAPED STATEMENTS OF S.H. WHEN SHE PROVIDED FULL AND COGENT TESTIMONY AT TRIAL HAD NO PURPOSE OTHER THAN TO BOLSTER THE CREDIBILITY OF THE STATE'S PRIMARY WITNESS WITH HER PRIOR CONSISTENT STATEMENTS, AND THEREFORE DENIED DEFENDANT A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1. (Partially Raised Below)
POINT III
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DENIED DEFENDANT A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1. (Partially Raised Below)
POINT IV
THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1. (Not Raised Below)
POINT V
THE SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT DOUBLE COUNTED AGGRAVATING FACTORS, IMPROPERLY FOUND AGGRAVATING FACTORS, AND FAILED TO CONDUCT A PROPER YARBOUGH ANALYSIS IN IMPOSING AN EXCESSIVE SENTENCE. U.S. Const. amend. XIV; N.J. Const. art. 1 ¶¶ 1, 12.
I.
In January 2008, defendant was living in a single-family home in Perth Amboy with his wife, Miranda; her grandmother, Marjorie, who owned the home; Miranda's sister, Sharon; Miranda's daughter by defendant Kelly, who was twenty-months-old; and S.H. (Sarah), Miranda's daughter from a prior relationship who was nearly nine.
We have fictionalized the first names of those involved.
Marjorie testified that on Friday evening, January 4, 2008, at around 5:00 p.m., defendant returned home from work and entered the living room, where Sarah was playing with two other children. Marjorie was in the kitchen with Miranda, Sharon and one of their friends. Marjorie heard defendant persistently questioning Sarah about the location of the television remote control. Marjorie went into the living room and intervened in Sarah's defense. Defendant appeared upset.
Marjorie returned to the kitchen. After ten minutes of silence, Marjorie grew concerned and revisited the living room to investigate. The other children in the living room told her that defendant took Sarah upstairs because "[h]e wanted to show her something." Marjorie went upstairs, believing that defendant was reprimanding Sarah. The door to defendant's and Miranda's bedroom was shut, and Marjorie saw no light coming from beneath the closed door. Marjorie swung the bedroom door open and immediately switched on the light.
Defendant rolled off his bed onto the floor; Sarah was on the bed under the covers. Marjorie asked defendant, "What the hell were you doing?" Defendant claimed to be looking for directions to assemble a telescope, the box for which was on the floor. Marjorie took Sarah downstairs.
Later that evening, Marjorie asked Sarah, "What was [defendant] going to do to you?" Sarah said, "[Defendant] was going to put something in [her] mouth." Marjorie asked Sarah, "Did he touch you down there?" Sarah responded, "Yes." Sarah said she was "afraid" to tell anyone what happened, and defendant told her that it was their secret. Sarah was nervous and visibly upset.
Defendant and Miranda returned home later that evening, and Marjorie told Miranda what happened. Miranda told Marjorie, "I'll take care of this[,]" and she and defendant left the house and did not return overnight. The next day, Saturday, January 5, 2008, Marjorie and Miranda went to speak with their priest about the incident.
Father John Barbella testified that he spoke with Marjorie and Miranda, and, on the following day at mass, he saw Marjorie, Miranda, Sarah and defendant at church. Over the next few days, Barbella spoke to Marjorie and Miranda "on several occasions." Barbella told them and defendant that if they did not report the incident to the police, he would. On Wednesday or Thursday, Barbella phoned the police.
Members of the Perth Amboy Police Department and detective Andrea Capraru of the Middlesex County Prosecutor's Office commenced an investigation in response. Capraru interviewed Sarah on January 11, 2008, and later that day defendant was arrested. The interview was recorded on a DVD that was played for the jury.
David Rottmann was serving a sentence for theft in the Middlesex County jail in 2008. He testified that, while at the jail, defendant told him on two occasions that "he stuck his thing in [Sarah's] mouth." Rottmann interpreted "thing" to mean defendant's penis. Defendant was "upset" and "crying." Defendant also told Rottmannn that "a grandmother . . . at the house . . . initially . . . found out[,]" when "[s]he walked in when [he and Sarah] were in the room . . . ."
Rottmannn also testified that defendant read a letter he wrote in which he claimed "the reason why he did what he did was because he had a blackout or something." Defendant also asked Rottmannn to send a letter to Miranda, expressing "how [defendant] was sorry for what he did, and if [Miranda] could please ask [Sarah] to forgive him."
Sarah testified and described the first time defendant sexually molested her. She was eight, and defendant had her "lay down on the floor" of the computer room. Sarah "felt something wet and moist rubbing against [her] private." On another occasion near Thanksgiving, Sarah was sitting on defendant's lap playing a video game. Defendant "asked [her] to sit face-to-face, and . . . pulled down [her] pants a little." Sarah "felt something rubbing into her private." Defendant stopped when he heard a door open.
Sarah was ten when she testified at trial
On another occasion, when Sarah was home alone with defendant, he asked her to come into his bedroom. Sarah "sat on the bed, and [defendant] asked [Sarah] to go under the covers. [She] did." Defendant either told Sarah to take her pants off, or took them off himself. Her underwear also "came off." Defendant had Sarah sit on him, face-to-face, and "did something with the skin texture against [her] private." Sarah thought her mother "pulled up with the car[,]" and defendant "must have heard" because he left the room. Sometimes defendant would "pull[] down [her] pants a little and use[] his fingers."
Sarah described the final incident. Defendant "asked [her] to come up [to] the room . . . because he wanted to show [her] something." Defendant said, "'I want to put something in your mouth.'" Sarah refused "because [she] needed to go to dance class" and "didn't want to be late." Defendant asked Sarah to "go underneath the covers[,]" then he "put [her] hand somewhere . . . [which] felt like a skin texture or something." The incident ended when Marjorie "walked into the room." Defendant "rolled off the bed" and Sarah "hid [her] head underneath the covers."
Defendant testified and denied all of Sarah's allegations. He said that on January 4, 2008, he "asked [Sarah] to come upstairs because [he] had something to show her[,]" a telescope, and "[i]t was a surprise." Defendant said that he told "[Sarah to] close her eyes and open her mouth[,]" intending to give her a candy truffle. But, he was unable to find the truffles, which he kept in a bag on the floor. Defendant admitted giving Sarah a hug and a kiss in a "loving fatherly way."
Defendant also denied admitting "culpability or guilt" to Rottmann, saying that his conversations with Rottmann were only about the charges he faced. Defendant acknowledged he gave a letter to Rottmann to deliver to Miranda because "[he] had a [r]estraining [o]rder" against him. Defendant also shared with Rottmann a letter sent to him by a close family friend, Avril. In that letter, which defendant read to the jury, Avril claimed that Miranda was telling people defendant "could have blacked out and done it."
On cross-examination, defendant said that, during the January 4, 2008, incident, he shut off the light in his bedroom because his "eyes don't focus in the light the same as in the dark." Defendant was kneeling on the floor, looking for directions to assemble the telescope, when Marjorie entered the room. Without objection, the prosecutor asked defendant if he kept "sex toys in the drawer" of a night table by the side of his bed. Defendant confirmed that he did.
Also, without objection, the prosecutor asked about Avril's age -- early twenties -- and asked defendant to read other parts of the letter. At various points, Avril stated how much she missed defendant, could use a "hug," and how much he probably needed "a hug." The clear implication was that defendant and Avril were romantically involved, and Miranda was unaware of the relationship.
On Friday, July 31, 2009, the attorneys delivered their summations, and the judge charged the jury. The jury commenced deliberations at 1:50 p.m. It is unclear from the record exactly when, but the jury sent two questions to the judge. The first asked for the "legal definition of cunnilingus," and the second stated, "We need the transcript of [Sarah's] in-court testimony."
After consulting with the lawyers, the judge intended to provide the definition to the jury and advise that a read back of Sarah's testimony was not immediately possible because there was no transcript available. However, before reconvening, the jury apparently sent out additional requests. These included Marjorie's "in-court testimony"; the "forensic interview with [Sarah] and the Investigator"; and the "in-court testimony of [defendant] as well as the DYFS report that [defendant] gave."
Defendant had been cross-examined about statements he made contained in a report of the Division of Youth and Family Services (DYFS).
The judge explained to the jury that any delay in responding to the initial questions was occasioned by the need to have the stenographer locate Sarah's testimony. The judge explained, "It would take us a similar period of time to get the other three individuals that you're looking for." The judge further stated, "[I]f you want all that information, you're going to have to come back on Monday to get it." She released the jury for the weekend.
It would appear to have been 5:30 or 6:00 p.m. when the jury was released.
On Monday, the judge defined cunnilingus for the jury, and the court reporter read back Sarah's in-court testimony. After restating the jury's remaining requests, the judge told the jurors:
You . . . are entitled to have that also. In terms of [Marjorie's] testimony, it will be done in the same manner. The Stenographer will read it to you.A juror indicated that he, or she, did not, and the judge excused the jurors, telling them to "[d]iscuss it" and then "let me know if you still wanted to proceed with everything else . . . ." Before leaving the courtroom, the judge told the jurors, "I want to reemphasize . . . all the information that you asked for, you have a right to hear it."
We still have the interview and you can sit and listen to that. Your third question was you wanted [defendant's] testimony, also. So that if I allow you to see the
video, you're going to have to hear also the testimony of [defendant].
So are you prepared to hear all of this? You still want all these questions answered?
The jury responded, "After talking about it, we decided we only need to see the video again and [defendant's] in court testimony." The jury reconvened and the DVD was played. That was immediately followed by a read-back of defendant's testimony. Defense counsel lodged no objection throughout Friday's or Monday's proceedings.
The jury began deliberations again at 12:25 p.m. At 1:05 p.m., it returned a verdict of guilty on all counts of the indictment.
II.
A.
Defendant argues that the judge erred by not following the procedures set forth in State v. Burr, 195 N.J. 119 (2008), before playing the video interview for the jury during deliberations. Recognizing that "allowing a jury unrestricted access to videotaped testimony during deliberations" could have an unduly "prejudicial effect," the Court in Burr explicitly detailed the proper procedure when "the trial court is faced with a request by the jury to have a replay of the videotaped pretrial interview of [a witness]," which has been entered into evidence. Id. at 134-35.
[F]irst [the judge] should inquire of the jury whether it would be satisfied with a read[-]back of [the witness's] testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a read[-]back of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means. And, finally, any playback of the videotape must occur in open court, along with the read[-]back of related testimony that the court shall require.
[Id. at 135 (footnote omitted).]
Defendant argues that the judge never asked if the jury would be satisfied with a reading of the transcript from the interview, and never considered the potential prejudice to defendant by showing the video interview, which could have been ameliorated by a verbal read-back. Acknowledging that defense counsel never objected, defendant nonetheless contends the judge committed plain error.
We "may reverse on the basis of unchallenged error if we find the error was 'clearly capable of producing an unjust result.'" State v . Brown, 190 N . J . 144, 160 (2007) (quoting R. 2:10-2). The error must create a "possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v . Taffaro, 195 N . J . 442, 454 (2008) (citing State v . Macon, 57 N . J . 325, 336 (1971)).
Here, the jury first asked for the read-back of Sarah's trial testimony. Before that could be provided, it asked for the read-back of additional testimony and to see the DVD. However, because of the late hour, none of that was provided on Friday. After the weekend, the judge honored the jury's first two requests, instructing them on a legal definition and reading back Sarah's trial testimony.
The judge then again asked if the jury wanted to hear the rest of the read-back testimony and see the video. It is true that the judge did not offer the jury the option of hearing a read-back of the transcript of the interview. However, the jury responded by indicating it wanted to see the video of the interview. If questioned whether a read-back of the interview transcript would suffice, we think it likely that the jury would still have sought the video.
We say that, in part, because of the trial strategy employed by defense counsel. In summation, he highlighted inconsistencies between what Sarah said at trial and what she said during the forensic interview. He noted that Sarah repeatedly could not remember things during the interview. Defense counsel told the jury:
Now, when you look at the tape . . . you may find differently. And it's your recollection that controls, but I counted fourteen different instances when asked questions about what happened, when inquiries were made as to specifics. . . . And the answers in those fourteen instances were, "I don't know. I don't remember."Defense counsel also commented on Sarah's change in demeanor, telling the jury:
[(Emphasis added).]
[I]f you look at the evolving nature of the testimony, I suggest that as reasonable people, as triers of fact, you can see that a child of eight years old is developmentally less intellectual, less verbal than a child at ten.
And the child that we saw here before us live was quite different than the eight-year-old that we saw on the videotape. She was shy. She was withdrawn. Here, she was not. She was outgoing.
This trial strategy focused the jury's consideration on the taped interview, including a specific invitation to compare Sarah's demeanor, which, of course, was only assessable if the video was seen. Allowing the jury to see the video during deliberations clearly served defendant's trial strategy and explains the lack of any objection by defense counsel to the procedure employed by the judge.
We further note that, immediately after the video was shown, the judge ordered the read-back of defendant's entire trial testimony. We conclude that this, in conjunction with the prior read back of Sarah's trial testimony, adequately addressed any potential prejudice defendant suffered from the showing of the video interview. We refuse to reverse his conviction on this ground.
B.
Defendant raises a second issue with regard to the video interview of Sarah. He contends that because Sarah "provided full and cogent testimony at trial," admitting the video in evidence "had no purpose other than to bolster the credibility of the State's primary witness," and the video should have been excluded under N.J.R.E. 403. We disagree.
After the judge conducted a pre-trial N.J.R.E. 104 hearing, the video was admitted pursuant to the "tender years" exception, which provides:
A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . the child testifies at the proceeding . . . .Although the rule imposes no limit on the number of out-of-court statements that may be admitted at trial, the Court has said:
[N.J.R.E. 803(c)(27).]
[I]n considering the admission into evidence of several repetitive corroborative statements under the tender years exception, a trial court should be cognizant of its right under N.J.R.E. 403 to exclude evidence, if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value.Defendant made no such objection at trial, and, as noted, a major part of the defense was that Sarah's interview and her trial testimony were inconsistent with, not corroborative of, each other.
[State v. D.G., 157 N.J. 112, 128 (1999).]
Before us, defendant argues for a much broader standard of exclusion, essentially contending that statements admitted under the "tender years" exception should be excluded if the child witness is able to capably testify at trial. However, as we noted in State v. E.B., 348 N.J. Super. 336, 346 n.2 (App. Div.), certif. denied, 174 N.J. 192 (2002), the standard defendant proposes was proposed to, but never adopted by, the Court:
[T]he Supreme Court Committee on the Rules of Evidence, in recognition of the danger of multiple retellings, recommended deletion of N.J.R.E. 803(c)(27) in its present form, to be replaced by a rule excluding hearsay and evidence of prior consistent statements in those cases where the child victim is able to give "full and cogent" testimony. . . . This proposal was not adopted.We do not think the judge mistakenly exercised her broad discretion in permitting the video statement to be admitted in evidence. And, based upon our prior discussion, the re-playing of the video during deliberations does not alter our analysis.
[(Emphasis added).]
III.
Defendant next contends there were a number of trial errors committed that singularly, or collectively, denied him a fair trial. We set forth the specific claims.
The prosecutor finished her direct examination of Rottmann by asking why he "[came] forward." In completing his answer, Rottmann testified he was "convinced that [defendant] did what he said he did." Defense counsel objected, but the judge ruled the answer was "sufficient" "based upon the question."
Defendant also claims it was improper to permit the prosecutor to cross-examine him regarding "sex toys" he kept in the nightstand by his bed. He also argues that the prosecutor should not have been permitted to ask questions that implied he was romantically involved with Avril, the author of the letter defendant read in court. There was no objection to any of this testimony at trial.
As to Rottmann's answer, defendant argues, and we acknowledge, "credibility is an issue which is peculiarly within the jury's ken," and, therefore, asking a witness to assess the credibility of another witness is clearly improper. State v. Frisby, 174 N.J. 583, 595 (2002) (citation and internal quotation marks omitted). Here, the prosecutor's question may not have anticipated the specific answer. See State v. Yough, 208 N.J. 385, 397 (2011) ("Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness."). Nevertheless, the answer was improper, and the judge should have instructed the jury to disregard it.
However, Rottmann was extensively cross-examined, and defendant denied making any inculpatory statements to him. The jury, therefore, had the full ability to assess defendant's credibility themselves. Additionally, the judge's preliminary and final charge made clear that the credibility of all witnesses was an issue peculiarly in the province of the jury, and we are firmly convinced that Rottmann's single answer was harmless error beyond a reasonable doubt.
We also agree that, absent some direct relation to the charges involving Sarah, questioning defendant about the sex toys kept in the nightstand in his and Miranda's bedroom was improper. But, there was no objection, and, perhaps defense counsel made a strategic decision not to do so. See Yough, supra, 208 N.J. at 397 ("[A]ttorneys making strategic decisions based on information within their exclusive ken -- information oftentimes unknown to the trial judge -- are in the best position to gauge when to object to a perceived error and whether to request a curative instruction."). In any event, the failure to object deprived the judge of an opportunity to address the issue or provide guidance to the jury.
It was not error to permit the prosecutor to cross-examine defendant about the contents of Avril's letter or his relationship with her. Defendant read portions of the letter on direct examination, seeking to rebut Rottmann's claims. The words Avril used in other parts of the letter itself led to a reasonable inference that she and defendant may have been romantically involved. In any event, even if the questioning went far afield, there was no objection.
We express no opinion about the admissibility of the contents of the letter in the first instance.
--------
Lastly, defendant claims that it was reversible error to permit the jury to hear portions of Sarah's interview. During her statement, Sarah told Capraru that she did not report defendant's actions because she feared he would assault her, saying "he used to do that to my mom." There is nothing in the record evidencing a defense request to excise the statement.
After the video was shown, the judge told the jury:
I would like to strongly instruct you that there have never been any charges made or lodged against this person, [defendant], with regard to any kind of spousal abuse and that you should not give or take that statement into consideration during your deliberations.There was no objection to the charge, nor did defendant ask the judge to supply additional instructions. We presume the jury followed this charge. State v. Burns, 192 N.J. 312, 335 (2007).
In the absence of any request to redact the offending remarks, and, given their fleeting nature and the judge's strong and timely instruction, we find no plain error.
In sum, considered singularly or collectively, these alleged errors did not deny defendant a fair trial.
IV.
Defendant next cites three examples of prosecutorial misconduct that he contends require reversal. During direct examination, the prosecutor asked if Capraru continued her investigation after arresting defendant. Capraru stated, "Detective Savoia and I attempted to speak to [him]." The prosecutor persisted: "And then what did you do?" Capraru responded, "The Defendant invoked his rights to defense." There was no objection.
The following colloquy took place as the prosecutor completed her cross-examination of defendant:
Q. [I]sn't it true that [Sarah] is telling the truth?In her summation, the prosecutor stated:
A. No, not the complete truth.
Q. Not the complete truth. So she's telling the truth?
A. In some aspects she is and some aspects she's not.
Q. She's telling the truth. I don't have any further questions . . . .
Let me start off . . . saying that when [Sarah] came and testified before you, despite Counsel's attempt, and I'm going to call it an attempt, to scare the child with God's rage, because after the Court went through and I went through whether or not this child was going to tell the truth, he said to her, "You know God punishes people that tell a lie." That didn't scare her . . . .There were no objections made during trial, so we again conduct our review employing the plain error standard.
And he even tried to trick her. Counsel tried to trick her with a question . . . . All that trickery . . . with the child to . . . see if she could be, I suppose, coerced into saying something.
"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citations omitted). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted).
"Our task is to consider the fair import of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quotation marks and citation omitted). "Three factors guide the Court's assessment of the impact of improper prosecutorial remarks: '(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Ibid. (quoting Smith, supra, 167 N.J. at 182).
The prosecutor's continued questioning of Capraru led to an inevitable answer -- defendant asserted his right to remain silent. The questioning was improper because no relevant evidence would be adduced from the responses. See State v. Feaster, 156 N.J. 1, 75 (1998) ("[T]rial courts should endeavor to excise any reference to a criminal defendant's invocation of his right to counsel."). However, whenever a defendant's invocation of his right to remain silent is made known to the jury, an instruction from the judge serves to insure that no unfavorable inference of guilt arises. Ibid. In this case, before Capraru was cross-examined, sua sponte the judge gave a strong and pointed charge. Because of that, Capraru's fleeting comment was harmless error.
The prosecutor's cross-examination of defendant during which she sought his opinion about Sarah's truthfulness was improper. See State v. Dellisanti, 203 N.J. 444, 463 (2010) ("The prosecutor's line of questioning did compel defendant to comment starkly on the credibility of the witnesses against him and such questioning should have been avoided."). However, there was no objection, and, as noted above, the judge clearly instructed the jury on credibility. See ibid. (noting that the judge's instructions on "how to address credibility" supported conclusion that any error was harmless).
Lastly, we are deeply troubled by the prosecutor's attack upon defense counsel's manner and motives during cross-examination of Sarah. It is axiomatic that "[a] prosecutor is not permitted to cast unjustified aspersions on defense counsel or the defense. Defense counsel should not be subjected to disparaging remarks for simply doing his or her job." Frost, supra, 158 N.J. at 86 (citations and internal quotation marks omitted). Moreover, some of the prosecutor's remarks mischaracterized defense counsel's questions.
However, there was no objection. See Jackson, supra, 211 N.J. at 409 (noting whether counsel made "timely and proper objections to the improper remarks" is one factor guiding "the [c]ourt's assessment of the impact of improper prosecutorial remarks"). The failure to object indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407. We cannot conclude that defendant was denied a fair trial based on this, or the totality of, the prosecutorial errors he cites.
V.
At sentencing, the judge found aggravating factors two (the gravity and seriousness of the offense); three (the risk that defendant will commit another offense); and nine (the need to deter). See N.J.S.A. 2C:44-1a(2), a(3) and a(9). She found mitigating factors seven (defendant's lack of criminal history) and eight (defendant's conduct was the result of circumstances unlikely to recur). N.J.S.A. 2C:44-1b(7) and b(8). The judge concluded "that the aggravating . . . and mitigating factors . . . are in equipoise."
Defendant argues that the sentence imposed was excessive and based upon legal errors made by the judge. In particular, defendant contends the judge engaged in "double-counting" because her finding of aggravating factor two was based upon elements of the offenses for which he was convicted. He also argues that the record did not support a finding of aggravating factors three and nine. Lastly, defendant contends the judge failed to articulate the justification for a consecutive sentence on count three, particularly since the same conduct that supported the convictions on count one and two served as the basis for convicting him of endangering.
In finding aggravating factor two, the judge expressly cited Sarah's age. Earlier, the judge cited "violations . . . of the parental duty," noting defendant's status as Sarah's "step-parent," and said defendant "took advantage of that responsibility and that opportunity." The finding of an aggravating sentencing factor cannot be premised solely upon an essential element of the crime for which defendant is being sentenced. State v. Kromphold, 162 N.J. 345, 353-54 (2000). Such "double-counting" is not permitted. Id. at 353.
Here, an essential element of defendant's conviction for aggravated sexual assault was Sarah's age. See N.J.S.A. 2C:14-2a(1) (an act of sexual penetration upon a person less than thirteen years old is an element of "aggravated sexual assault"); N.J.S.A. 2C:24-4a (defining second-degree endangering as engaging in certain conduct with a child for whom the person has a legal duty of care). We agree that the judge engaged in "double-counting" in finding aggravating sentencing factor two.
On the other hand, we reject defendant's claim that the record did not support a finding that aggravating factors three and nine applied. See, e.g., State v. Carey, 168 N.J. 413, 426-27 (2001) (holding that evidence need not "irrefutably prove" the factors, only that it "provide support for the trial court's conclusion"). The lack of any prior criminal record does not preclude such findings. And, while the judge did not provide an extensive explanation of reasons, our review of the entire record convinces us defendant's argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).
As noted, the judge found the sentencing factors were in equipoise, and elimination of one of the aggravating factors compels us to remand the matter for re-sentencing. Because the judge's sentencing decision requires a qualitative, not quantitative, assessment of applicable sentencing factors, we hasten to add that our decision does not necessarily imply defendant must receive a shorter sentence.
Defendant also argues the judge did not properly consider the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when she decided to impose a consecutive sentence on count three. We agree and conclude a remand is also necessary on this ground.
When she orally imposed sentence, the judge simply stated, "I find that, pursuant to . . . Yarbough, . . . there are no free crimes. And, as a result, the Court has sentenced in the manner in which it has." In the judgment of conviction, the judge wrote: "Pursuant to [Yarbough] there are no free crimes, because of the parental duty endangering does not merge with aggravated sexual assault. The crimes are independent of each other."
In Yarbough, id. at 643, the Court stated "there can be no free crimes in a system for which the punishment shall fit the crime[.]" However, that was but one factor to guide the exercise of a sentencing judge's discretion. The Court said the judge must also consider
facts relating to the crimes, including whether or not: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) 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; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous . . . .These factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." Carey, supra, 168 N.J. at 423 (quoting State v. Baylass, 114 N.J. 169, 180 (1989)).
[Id. at 643-44 (footnote omitted).]
The judge's explanation of why she was imposing a consecutive sentence was terse. It evidenced no consideration of other factors that clearly mitigate against a consecutive sentence, e.g., a single victim and a "unity of specific purpose." State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000). The failure to consider factors that both support and mitigate against consecutive sentences requires us to remand the matter for re-sentencing. See State v. Miller, 205 N.J. 109, 129 (2011) (remanding for re-sentencing because "the record d[id] not reveal that the trial court expressly or implicitly considered the guiding legal principles governing its discretion" in imposing consecutive sentences).
We affirm defendant's convictions. We remand the matter for re-sentencing. 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 APELATE DIVISION