RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3507-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.B.,
Defendant-Appellant. _________________________
Submitted December 2, 2020 – Decided January 6, 2021
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-03-0206.
Joseph E. Krakora, Public Defender, attorney for appellant (Zachary G. Markarian, Assistant Deputy Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant L.B.1 appeals from his conviction by a jury of second-degree
sexual assault. He contends the trial court violated his right to a fair trial and to
fully confront the witnesses against him by barring cross-examination of the
victim R.P.S. about her illegal entry into the United States fourteen years prior
to the sexual assault. Unpersuaded, we affirm.
I.
Because defendant's appeal presents a narrow issue for our consideration,
we limit our summary of the pertinent facts to those necessary to provide context
for our analysis of defendant's argument.
A grand jury charged defendant in an indictment with second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1), by committing one or more acts of sexual
penetration on R.P.S. by using physical force. At the commencement of the
trial, the court granted defendant's request for a Rule 104 hearing, see N.J.R.E.
104, to determine the allowable scope of R.P.S.'s testimony concerning her
immigration status. Defendant sought to cross-examine R.P.S. about her
immigration status to establish she had a motive to falsely allege she had been
sexually assaulted.
1 Defendant and the victim of the sexual assault for which he was convicted are husband and wife. We use initials to identify defendant and the victim to ensure the victim's identity is protected from public access. See R. 1:38-3(c)(12). A-3507-18T2 2 During the hearing, R.P.S. testified she is married to defendant, who is a
United States citizen, and that the couple's two children are also citizens. She
explained she entered the United States in 2000 without a visa, but she was
presently in the country legally because she had a work permit. R.P.S. testified
that prior to the December 8, 2014 sexual assault alleged in the indictment, she
began the process of applying for citizenship, and, at the time of trial, the process
was ongoing. She also testified her work permit was scheduled to expire in June
2017, three months following the trial.
R.P.S. testified she is aware a person may gain United States citizenship
by being married to a citizen such as defendant, and she also understood that a
person may gain citizenship if he or she is the victim of a crime. R.P.S. denied
fabricating the allegation she was the victim of sexual assault to further her
efforts to obtain citizenship.
Defense counsel argued she should be permitted to cross-examine R.P.S.
at trial about her immigration status, including her illegal entry into the country
without a visa in 2000, to establish she had a motive to fabricate the alleged
sexual assault. The State argued that information about R.P.S.'s immigration
status and entry into the country was not probative and was unduly prejudicial.
A-3507-18T2 3 The court ruled that defense counsel could question R.P.S. at trial about
her immigration status at the time of the incident, her process of applying for
citizenship, and her knowledge about the effect being a crime victim might have
on her citizenship application. The court, however, denied defense counsel's
request to question R.P.S. at trial about how she entered the United States,
finding it was "tantamount to [N.J.R.E.] 404[(b)] evidence."
At trial, R.P.S. testified she married defendant in 2005, their relationship
began to deteriorate in 2011, and, by the end of 2013, defendant no longer
resided with R.P.S. They remained in contact, however, to communicate about
their children.
According to R.P.S., on December 6, 2014, defendant informed R.P.S. he
had fathered a child with another woman. Two days later, defendant went to
R.P.S.'s apartment to drop off items for one of the children. R.P.S. asked
defendant to leave the items and her apartment, but defendant locked the
apartment door and followed R.P.S. to the bedroom, where she had retreated
after asking defendant to leave. Defendant attempted to show R.P.S. a
photograph of his new child, but R.P.S. did not want to see it and again as ked
defendant to leave.
A-3507-18T2 4 R.P.S. testified defendant then pushed her onto the bed, pulled his and her
pants down, held R.P.S.'s hands over her head, and vaginally penetrated her with
his penis. During the assault, R.P.S. attempted to stop defendant and bit his lip,
leaving blood stains on her shirt. When defendant got up, he told R.P.S. that
she belonged to him, and he left the apartment. R.P.S. reported the incident to
the police.
During cross-examination, defense counsel questioned R.P.S. about her
current immigration status, but, consistent with the court's determination at the
Rule 104 hearing, counsel did not inquire about whether R.P.S. entered the
United States illegally in 2000. Similar to her testimony at the Rule 104 hearing,
R.P.S. testified she is married to defendant, who is a United States citizen, and
that she is not a United States citizen. She denied she applied for United States
citizenship and explained she applied "at least [for] the [g]reen [c]ard." When
asked if she was "trying to get a legal status in the United States," R.P.S.
explained she "ha[d] a working permit." R.P.S. testified she is aware a person
can gain citizenship by being married to a United States citizen or by being a
A-3507-18T2 5 victim of domestic violence. She further testified she wanted to stay in the
United States with her children, who are citizens. 2
The court held a charge conference on the proposed jury instructions.
Defendant argued the court should charge the jury in accordance with Model
Jury Charge (Criminal), "Credibility—Immigration Consequences of
Testimony" (rev. June 6, 2016). The court determined the immigration charge
was not appropriate because the charge applies where the witness is in the United
States illegally, and R.P.S.'s testimony established she was in the United States
legally. The court did not give the requested charge, but it permitted defense
counsel to argue R.P.S.'s immigration status provided a motive to falsely claim
she was the victim of a crime.
During closing arguments, defense counsel offered numerous reasons
R.P.S.'s testimony about the sexual assault was not credible. Counsel argued
R.P.S. provided inconsistent versions about what occurred to the police and at
trial, she failed to report important alleged facts to the police, and her version of
the sexual assault was illogical and did not make sense. Defendant also asserted
R.P.S. had multiple motives to fabricate the sexual assault, including defendant's
2 The State called other witnesses at trial, but their testimony is irrelevant to a determination of the issue presented on appeal. Defendant did not present any witnesses at trial. A-3507-18T2 6 history of being unfaithful to her, his fathering of a child with another woman,
and her desire to obtain citizenship so she could stay in the United States with
her children.
The jury found defendant guilty of second-degree sexual assault. The
court determined defendant should be sentenced within the third-degree range,
see N.J.S.A. 2C:44-1(f)(2), and imposed a four-year prison term subject to the
requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, parole
supervision for life, N.J.S.A. 2C:43-6.4, and compliance with the requirements
of Megan's Law, N.J.S.A. 2C:7-1 to -23. This appeal followed.
II.
Defendant presents the following argument for our consideration.
POINT I
THE TRIAL COURT DEPRIVED [DEFENDANT] OF HIS RIGHT TO PRESENT A COMPLETE DEFENSE AND HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY PROHIBITING CROSS- EXAMINATION OF [R.P.S.] REGARDING THE FULL CONTEXT OF HER IMMIGRATION STATUS.
We review a trial court's decision to admit or exclude evidence using the
abuse of discretion standard. State v. Brown, 463 N.J. Super. 33, 51 (App. Div.
2020). "[W]e will reverse an evidentiary ruling only if it 'was so wide [of] the
A-3507-18T2 7 mark that a manifest denial of justice resulted.'" Ibid. (alteration in original)
(citation omitted). "Although a trial court retains broad discretion in
determining the admissibility of evidence, that discretion is abused when
relevant evidence offered by the defense and necessary for a fair trial is kept
from the jury." State v. Cope, 224 N.J. 530, 554-55 (2016).
Our federal and state constitutions "guarantee a criminal defendant the
right to confront 'the witnesses against him' and 'to have compulsory process for
obtaining witnesses in his favor.'" State v. Guenther, 181 N.J. 129, 147 (2004)
(quoting U.S. Const. amend. VI and N.J. Const. art. I, ¶ 10). These rights are
"essential for a fair trial." Ibid.; see also State v. Garron, 177 N.J. 147, 169
(2003). "Confrontation means more than being allowed to confront the witness
physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). It means the defendant
is guaranteed the right to cross-examine the witness, id. at 315-16, because
cross-examination is "the most effective means of testing the State's evidence
and ensuring its reliability," Guenther, 181 N.J. at 147; see also State v. Medina,
242 N.J. 397, 412-13 (2020).
Although the rights to confront witnesses and present a complete defense
are guaranteed, they are "not unqualified," State v. Kane, 449 N.J. Super. 119,
136 (App. Div. 2017), and they are "not intended to sweep aside all evidence
A-3507-18T2 8 rules regulating the manner in which a witness is impeached," Guenther, 181
N.J. at 150 (citing Davis, 415 U.S. at 321 (Stewart, J., concurring)). As our
Supreme Court explained in State v. Scott, Rule 607 allows the use of extrinsic
evidence "for the purpose of impairing or supporting" a witness's credibility,
229 N.J. 469, 481 (2017) (quoting N.J.R.E. 607 (1992) (amended 2019)), "unless
an exception within that rule applies or either Rule 405 or 608 renders the
evidence inadmissible," ibid. Rules 405 and 608 "preclude the use of specific
instances of conduct to attack the credibility of a witness." Ibid. Evidence of
"[s]pecific instances of conduct not the subject of a conviction of a crime [is]
inadmissible" under Rule 405. Ibid. (first alteration in original) (quoting
N.J.R.E. 405 (1992) (amended 2019)). Under Rule 608, "'a trait of character
cannot be proved by specific instances of conduct' unless the prior act was a
'false accusation against any person of a crime similar to the crime with which
[the] defendant is charged.'" Ibid. (quoting N.J.R.E. 608 (2006) (amended
2019)). Even "relevant evidence may also be excluded on the ground that 'its
probative value is substantially outweighed by the risk of . . . undue prejudice.'"
Ibid. (alteration in original) (quoting N.J.R.E. 403 (1992) (amended 2019)).
In State v. Sanchez-Medina, the Court considered the prejudicial effect of
evidence concerning a person's immigration status, explaining that, "[a]s a
A-3507-18T2 9 general rule, that type of evidence should not be presented to a jury." 231 N.J.
452, 462 (2018). The Court found that "[i]n most cases, the immigration status
of a witness or party is simply irrelevant, and a jury should not learn about it,"
id. at 463, because disclosure of a person's "illegal status in this country is very
likely to trigger negative sentiments in the minds of some jurors," id. at 464
(quoting Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 274 (App.
Div. 2009)). The Court, however, explained that evidence concerning a
witness's or party's immigration status is admissible in "limited" and "rare"
circumstances, such as where a witness is "promised . . . favorable immigration
treatment in exchange for truthful testimony" or where a "defendant . . . lied
about his immigration status to obtain government benefits as part of scheme to
defraud, [and] his true status [is] relevant to the crime charged." Id. at 463.
Here, we discern no abuse of the court's discretion in allowing evidence
concerning R.P.S.'s immigration status, and limiting the evidence to only that
which was necessary to establish she had a motive—her understanding a
citizenship application would be aided if she was the victim of a crime—to
falsely allege defendant sexually assaulted her. Defense counsel elicited the
pertinent testimony and created a record supporting her argument to the jury that
A-3507-18T2 10 R.P.S. had a motive related to her immigration status to falsely accuse defendant
and the jury should not believe R.P.S.'s testimony for that reason.
We reject defendant's claim the court erred by preventing him from also
eliciting testimony concerning R.P.S.'s illegal entry into the United Sta tes in
2000. That information is wholly irrelevant to defendant's claim R.P.S. had a
motive in 2014 to falsely accuse him of sexual assault, and there is no evidence
that any issues related to her entry into the United States might affect her quest
for either citizenship or a green card. At the Rule 104 hearing, defense counsel
claimed evidence concerning R.P.S.'s illegal entry was "extremely probative"
because it showed she knew she was going to later need assistance to gain
citizenship. We disagree. What R.P.S. understood when she entered the country
in 2000 was not an issue at trial, and evidence concerning her entry did not have
"a tendency in reason to prove or disprove any fact of consequence to the
determination of the action." N.J.R.E. 401; see Verdicchio v. Ricca, 179 N.J. 1,
33-34 (2004) ("To say that 'evidence is irrelevant in the sense that it lacks
probative value' means that it 'does not justify any reasonable inference as to the
fact in question.'" (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div.
1985))). She accused defendant of sexual assault in 2014, and it was the
knowledge she possessed at that time and at trial about obtaining citizenship or
A-3507-18T2 11 a green card that is probative of her motives for accusing defendant of sexual
assault. Moreover, there is no evidence R.P.S.'s desire for citizenship or pending
application for a green card would be affected by the circumstances related to
her entry to the country.
We are convinced the court properly excluded evidence R.P.S. entered the
country illegally because it was not relevant. N.J.R.E. 401. Additionally, even
if such evidence had some probative value—and defendant points to none
supported by the trial record—its value would have been '"so significantly
outweighed by [its] inherently inflammatory potential as to have a probable
capacity to divert the minds of the jurors from a reasonable and fair evaluation
of the basic issue[s].'" Serrano, 407 N.J. Super. at 274-75 (alterations in
original) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 491 (1999)); see
also Morales-Hurtado v. Reinoso, 457 N.J. Super. 170, 192 (App. Div. 2018),
aff'd 241 N.J. 590 (2020). The evidence was therefore inadmissible under Rule
403 and was properly excluded by the trial court.
We next consider defendant's claim the court incorrectly found N.J.R.E.
404(b) barred the admission of evidence concerning R.P.S.'s entry into the
United States. Where, as here, a defendant seeks to use other-crime evidence
defensively, the court must determine if the evidence is relevant under Rule 401,
A-3507-18T2 12 State v. Williams, 240 N.J. 225, 234-35 (2019), and, if so, whether it should be
excluded under Rule 403, id. at 237-38. For the reasons we have explained,
evidence concerning R.P.S.'s entry into the country is not relevant under Rule
401 and is otherwise inadmissible under Rule 403.
We reject defendant's claim the court's determination should be reversed
because it did not conduct its analysis under the applicable evidentiary rules.
We review a trial court's orders, not its reasoning, Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001); see also Scott, 229 N.J. at 479, and "we may
'affirm the trial court's decision on grounds different from those relied upon by
the trial court,'" State v. Armour, 446 N.J. Super. 295, 310 (App. Div. 2016)
(quoting State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)). Although
our reasoning differs from the trial court's, the court correctly barred admission
of the evidence concerning R.P.S.'s entry into the United States.
Defendant also contends the court erred by denying his request to charge
the jury pursuant to Model Jury Charge (Criminal), "Credibility—Immigration
Consequences of Testimony" (rev. June 6, 2016). Where the trial court does not
give a jury a charge requested by defendant, we review the court's decision for
harmless error. See Hedgpeth v. Pulido, 555 U.S. 57, 60-61 (2008); see also
State v. Camacho, 218 N.J. 533, 550-52 (2014) (holding a trial court's failure to
A-3507-18T2 13 instruct the jury regarding a defendant's election not to testify upon the
defendant's request is "subject to the . . . harmless-error analysis"). We must
determine "whether in all the circumstances there [is] a reasonable doubt as to
whether the error denied a fair trial and a fair decision on the merits." State v.
Macon, 57 N.J. 325, 338 (1971). "[W]hether an error is harmless depends upon
some degree of possibility that it led to an unjust verdict. The possibility must
be real, one 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. Burton, 309 N.J.
Super. 280, 289 (App. Div. 1998). "If the possibility of an unjust result is
sufficient to raise in our minds a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached, a new trial is required."
State v. Walden, 370 N.J. Super. 549, 562 (App. Div. 2004).
We are not convinced the court erred by denying defendant's request to
charge the jury in accordance with the model jury charge. By its plain terms,
the charge applies where a witness who testifies for the State is "not [a] legal
resident[] of the United States and, therefore, subject to removal from this
country." Model Jury Charge (Criminal), "Credibility—Immigration
Consequences of Testimony" (rev. June 6, 2016) (first bracket in original).
There is no evidence that was the case here. R.P.S. testified she was in the
A-3507-18T2 14 United States legally under a work permit, and there was no evidence presented
she was subject to removal. At the Rule 104 hearing, she testified her work
permit expired three months later in June 2017, but at trial no similar testimony
was elicited. As a result, the record before the jury was devoid of evidence
R.P.S. was either in the country illegally or subject to the removal referred to in
the model jury charge.
On its face, the charge also applies where a witness is aware of a program
that could prevent her removal if the State informed federal immigration
authorities she was a victim of a crime. R.P.S. was never asked at trial whether
she faced removal from the country or if she understood the State could inform
federal immigration authorities that she was a victim of a crime as a means of
preventing her removal. 3 During trial, R.P.S. said nothing about being removed
from the country. She explained only that she understood being a victim of a
3 We note R.P.S. testified at the Rule 104 hearing that her work permit expired in June 2017, three months after the hearing and trial. Although that evidence alone did not establish R.P.S. would either be removed when the permit expired, or believed she would be removed at that time, it might have supported an inference her removal was imminent if presented at trial. At trial, however, R.P.S. did not testify that her work permit was to expire in three months, nor did she testify as to any other facts supporting a reasonable inference she faced removal by federal immigration authorities. Any inference at trial that she was subject to removal, might be removed, or believed the State could assist her in avoiding some putative removal would have necessarily been based on pure speculation. A-3507-18T2 15 crime might assist her in qualifying for citizenship, but the jury was not
presented with any evidence R.P.S. had applied for citizenship. R.P.S. testified
only about applying for a green card. In other words, there is no evidence
supporting defendant's request for the charge. See Lesniak v. Cnty. of Bergen,
117 N.J. 12, 20 (1989) ("A jury instruction that has no basis in the evidence is
insupportable, as it tends to mislead the jury."). The court did not err by not
giving the charge; it is not supported by the trial record.
Even assuming the court erred by failing to give the model jury charge,
we do not have "a reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached." Burton, 309 N.J. Super. at 289. Under
the circumstances of this case, the charge would have actually inured to the
State's benefit because its primary message is that a jury cannot make a
determination about a witness's credibility based in whole or in part on the
person's immigration status. If the charge had been given, it would have
instructed that the jury could not consider R.P.S.'s immigration status to
conclude that she did not "comply with our society's rules and, therefore, [was]
more likely to ignore the oath requiring truthfulness on the witness stand."
Model Jury Charge (Criminal), "Credibility—Immigration Consequences of
Testimony" (rev. June 6, 2016). The charge further instructs the jury that a
A-3507-18T2 16 witness's "violation of federal immigration laws does not, in and of itself, affect
[his or her] credibility." Ibid. The failure to provide the charge deprived the
State of instructions ameliorating any "negative sentiments in the minds of some
jurors," Serrano, 407 N.J. Super. at 274, about R.P.S. that may have been
"trigger[ed]," ibid., by the testimony about her immigration status. As a result,
the State lost the benefit of the instruction that R.P.S.'s immigration status alone
could not be considered in assessing her credibility.
The charge benefits a defendant to the extent it instructs a jury that in
assessing a witness's credibility, "the focus must be on whether the possibility
that the State can help [the witness] delay or avoid removal from the United
States improperly influenced [the witness's] testimony." Model Jury Charge
(Criminal), "Credibility—Immigration Consequences of Testimony" (rev. June
6, 2016). That instruction, however, has no application here because R.P.S. did
not testify at trial there was any possibility the State would assist her in delaying
any purported removal. Giving the instruction to the jury would not have aided
the jury in its determination of R.P.S.'s credibility because there is no evidence
supporting its application.
Although the charge directs that the jury consider whether a witness's
testimony "was influenced by the hope or expectation for any favorable
A-3507-18T2 17 treatment or reward such as delaying or avoiding removal from the United States
by federal immigration authorities," we do not have a reasonable doubt the
failure to give that portion of the charge led the jury to a result it otherwise might
not have reached. The court's general instruction on the credibility of witnesses
addressed the jury's consideration of witness bias and interest in the outcome of
the trial as factors to be considered in assessing R.P.S.'s, and all the witnesses',
credibility. In addition, defense counsel's primary theme during her summation
focused on R.P.S.'s lack of credibility due to what were characterized as R.P.S.'s
numerous motives for allegedly falsely accusing defendant of sexual assault.
We are convinced that based on the court's general charge on credibility, and
defense counsel's summation, the jury was fully capable of considering the
evidence concerning R.P.S.'s immigration status and fairly deciding whether it
supported defendant's claim R.P.S. falsely accused him of sexual assault. See,
e.g., State v. Walker, 322 N.J. Super. 535, 547 (App. Div. 1999) (explaining that
"determining whether a . . . failure to give a special credibility instruction
constitutes reversible error" requires consideration of "the entire trial record,
including" the general instructions on witness credibility, and the prosecutor's
and defense counsel's summations).
A-3507-18T2 18 Any of defendant's arguments we have not expressly addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
A-3507-18T2 19