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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5308-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
T.R.G.,
Defendant-Appellant. __________________________________________
Submitted September 14, 2017 – Decided November 17, 2017
Before Judges Alvarez, Nugent, and Geiger
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0003.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura G. Murphy, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant T.R.G. was convicted of sexual
crimes against his step-granddaughters. On March 23, 2015, the judge imposed an aggregate sentence of sixteen years, subject to
eighty-five percent parole ineligibility in accord with the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, after denying
defendant's motion for a new trial. Defendant appeals, contending
that the trial judge's errors and the prosecutor's prejudicial
opening and closing statements warrant reversal, and that his
sentence was excessive. After consideration of the legal arguments
and our review of the record, we affirm.
Defendant was convicted of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1), (count one); two second-degree
aggravated assaults, N.J.S.A. 2C:14-2(b), (counts two and three);
and three second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (counts four, eight, and thirteen). The first
three counts charged defendant with conduct involving Ann1, who
was born in 2003. Ann, Ann's sister Barbara, who was born in
2002, and Ann's cousin, Cathy, who was born in 2001, were
separately named in each count of child endangering.
The trial judge merged the second-degree sexual assault into
the first-degree crime, and sentenced defendant to the NERA
sixteen-year term of imprisonment on count one. The judge also
imposed seven-year terms on each of the three second-degree
1 To preserve the anonymity of the parties, we do not use their real names.
2 A-5308-14T2 endangering convictions, to be served concurrent to each other and
to the first-degree offense.
The jury acquitted defendant of two counts of first-degree
aggravated sexual assault against Barbara and Cathy. After the
jury was unable to reach a unanimous verdict, the prosecutor
dismissed counts six, seven, ten, eleven, and twelve, which charged
second-degree sexual assaults of Barbara and Cathy.
I.
At trial, R.E. (Ted), Ann and Barbara's father and Cathy's
uncle, testified that his mother, the children's grandmother,
married defendant in 2007. Ted's relationship with defendant was
"cool," but changed dramatically in July 2010, when Ann told Ted
about defendant's sexual abuse. Ted immediately called his mother,
who is a nurse. She instructed him to take the child to the
emergency room, which he did later that evening. The following
day Martin A. Finkel, M.D., a pediatrician at the Child Abuse
Research, Education, and Service Institute, examined the child.
Around the time Ann disclosed the conduct, Ted asked Barbara
if defendant had done anything to her. She denied it. As a result
of Ann's disclosures, Ted sent his daughters to live with their
mother out-of-state. In March 2012, they returned. After their
return, he allowed his children to visit his mother's home, but
claimed he assumed that defendant would not be present.
3 A-5308-14T2 In August 2012, Barbara disclosed to her father that she too
had been abused by defendant. When he asked Barbara the reason
she delayed in telling him, the child said she was frightened.
The next day, Ted spoke with Cathy, who also reported that
defendant had molested her. Ted asked the girls to write down
what had occurred; he did not read the statements because he was
afraid he would harm defendant after doing so. Ted denied telling
the girls what to write. He admitted destroying some of
defendant's property out of anger over the abuse, and calling
defendant a "blood sucker" in court. Ted denied influencing the
children in any way. He insisted he only told them to tell the
truth.
Ted also described at some length the rupture the allegations
caused within the family. He acknowledged that before Barbara and
Cathy alleged defendant abused them as well, he actually telephoned
defendant's first trial attorney about the possibility of
dismissing the case for the sake of his relationship with his
mother. Ted said that he had wanted to drop the charges, but
changed his mind when Barbara and Cathy came forward. On cross-
examination, Ted denied talking to defendant's counsel at the
courthouse, or that the lawyer told him to speak with the
prosecutor about the dismissal.
4 A-5308-14T2 In 2010, Ann lived with her grandmother and defendant during
the week, and on the weekends lived with her father. She was ten
at the time of the trial. She testified that on occasions,
defendant applied some kind of "grease" inside her body, and
afterwards "put his penis inside." He also touched her private
parts with his fingers. Defendant would stop if he heard someone
come to the door. Ann said "it hurted" when she tried to go to
the bathroom, and that "it hurted" during the course of the
assault.
The incidents occurred while defendant alone was watching the
children, and Barbara and Cathy would be in another room. On one
occasion, Ann was asleep when she was assaulted, and recalled that
she "felt something and it hurted and then that's when I woke up."
When the assaults occurred, defendant's penis was hard. She
estimated that the incidents happened approximately five times.
Ann said she also saw defendant touch Barbara when he was
with her under the covers on one occasion, shortly after he had
touched her. Ann never saw defendant touch Barbara again, and she
never saw him touch Cathy.
Ann decided to tell her father about defendant assaulting her
after seeing defendant touching her sister, and did so the
following day. She had been worried that Ted would be mad at her,
but he was not, although he was upset. Ann denied that Ted had
5 A-5308-14T2 coached her. She told the prosecutor's investigator, who also
testified, about what happened and reported pain on urination to
her, although no bleeding. She never said anything to her
grandmother.
Barbara was twelve at the time of trial. Back in 2010, she
was at her grandmother's house frequently, and knew her father and
defendant had never gotten along. Barbara remembered defendant
touching her inappropriately, but could not recall how many times
it occurred. Defendant used some kind of substance during the
assaults, which she described as "lotion." She pretended being
asleep when defendant placed his penis inside her vagina, and
touched her bottom. She said it hurt, and that she had pain on
urination afterwards, but did not recall bleeding. She said
nothing to her grandmother. Defendant touched Barbara with his
penis on more than one occasion, and the second time he penetrated
her was similar to the first.
Barbara also reported that defendant liked playing a "tickle
game" with her. He would touch her all over her body, including
her chest, her bottom, and her private part. Barbara only saw
defendant play this game with her and with Cathy. He rubbed
Cathy's chest and all over her body, although not her private
part. Barbara saw defendant touch Cathy on one occasion while
they were all under the covers. All the inappropriate touching
6 A-5308-14T2 stopped when Ann told. Barbara explained that she said nothing
at the time Ann disclosed because she was afraid that defendant
"was going to say or going to do something with my grandmom."
When Barbara did disclose to her father, he became angry and
instructed her to write down everything that had happened, but did
not tell her what to write. When she spoke to the detectives in
2012, she told them the truth.
When Cathy testified at the trial, she was twelve. She said
that in 2010, while her grandmother was working, defendant would
sometimes watch her and her cousins. She recalled one particular
occasion on which defendant began to rub her back, and touched her
private part with his hands. He took off her pants and "put his
penis inside." Cathy was lying on her back and he was on top of
her. She said it "felt weird, and it hurt." It also hurt when
she went to the bathroom afterwards on urination, but there was
no blood. Defendant never touched her again after that one time
other than the tickle game.
Cathy reported defendant played the game with her, Ann, and
Barbara. He only played the game when their grandmother was
absent, and he told them not to say anything because he would get
into trouble. It was not until she was older that she realized
there was something wrong about a grown man touching the private
areas of children.
7 A-5308-14T2 On one occasion, Cathy saw Ann go into the bathroom, and
defendant follow her in. They were in there for approximately
twenty minutes. Ann acted as if nothing had taken place, and
afterwards came out and watched a movie with the other children.
Defendant did not come back into the room.
When Cathy made her disclosures to Ted, she did so because
she felt she might as well tell since everyone else had. Her
uncle was the first adult she spoke to and he did not tell her
what to say, only that she needed to write down what had happened
on paper.
Finkel, qualified as an expert in the field of pediatrics,
testified on behalf of the State. He examined Ann on July 23,
2010. She reported pain and discomfort after being touched when
she urinated, a condition known as dysuria. The condition can
occur for a number of reasons, but Ann experienced the condition
only after defendant allegedly molested her. Although actual
penetration into the vagina of a prepubescent girl would result
in significant genital trauma, he found none in Ann. He did not
expect to find such symptoms given the time that had elapsed since
the events. Finkel further explained the absence of such trauma
as possibly the result of the nature of the penetration, which he
had asked Ann to demonstrate on an anatomical model. When no
8 A-5308-14T2 other explanation for dysuria is present, Finkel opined it results
from sexual abuse.
A Camden County Prosecutor's Office detective explained that
she became involved with the case after notification from a local
hospital. The detective's recorded July 28, 2010 interview with
Ann was shown to the jury.
An investigator with the prosecutor's office videotaped
interviews with Barbara and Cathy on August 28, 2012; they too
were shown to the jury. The medical examination of Barbara and
Cathy did not reveal any physical trauma or signs of abuse.
After the State rested, defense counsel informed the court
that he intended to call defendant's former attorney regarding his
recollection of his conversation with Ted. Accordingly, the court
conducted an N.J.R.E. 104 hearing out of the presence of the jury
on the admissibility of the proposed testimony.
During the hearing, the attorney said he spoke to Ted in
person at the court house on either March 26, 2012, or April 16,
2012, not on the phone. He said that Ted told him "he was having
. . . disbelief as to the statements of his daughter, [Ann] he
. . . did not believe that the allegations were true." The
attorney advised Ted to contact the prosecutor and convey his
doubts about Ann's veracity.
9 A-5308-14T2 On cross-examination, the attorney explained that Ted did not
give a specific reason for his "disbelief," just that he did not
believe the child's allegations. The conversation occurred before
Barbara and Cathy had made their disclosures.
At the close of the hearing, the court found a portion of the
testimony to be inadmissible. The judge held that Ted's opinion
about the veracity of his daughter's allegations was irrelevant,
observing that it was the jury's job to decide whether or not Ann
was credible. Furthermore, he considered the statement to be
hearsay, highly prejudicial to the State, and excluded by N.J.R.E.
602 as inadmissible lay opinion.
The court agreed the attorney could testify for impeachment
purposes, however, and described his recollection that the
conversation occurred in person in the courthouse and not on the
phone, and that contrary to Ted's testimony, Ted told the attorney
that he wanted to resolve the case not because of "family issues,"
but because of "something" else instead. The attorney could state
that he directed Ted to convey the information to the prosecutor.
The first attorney's testimony before the jury complied with the
limits imposed by the court.
Defendant presented several witnesses, including a character
witness and his sister. Defendant's sister testified that his
relationship with Ted was poor. The children's grandmother,
10 A-5308-14T2 defendant's wife, also testified, and she described many
confrontations over the years between defendant and Ted, beginning
between 2004 and 2005, when Ted moved in with her and defendant.
The disagreements, including several physical altercations,
continued even after her marriage. She recalled that Ted and
defendant had an altercation just prior to July 22, 2010, the day
that Ann came forward with the allegations against defendant.
Defendant's wife explained that during the relevant time
frame, she was the primary caregiver for the children, and that
they would confide in her about everything. Despite this close
relationship, the children never said anything to her about
defendant molesting them. Defendant's wife also said she would
not leave the children alone with defendant because they were "too
bad – too active for [him]." She mentioned that she and defendant
cared for Ted's youngest child, a boy who has special needs.
Defendant's wife recalled leaving Ann alone with defendant once
in the summer of 2010 so that the child could finish watching a
movie before going to a family get-together. When she left,
defendant was outside. She further testified that she took a work
leave of absence from March 2010 until November 2010, and saw no
change in the girls' normal behavior or physical appearance, or
anything unusual on their clothes or linens.
11 A-5308-14T2 Defendant's wife further stated that even after the alleged
incidents, the family had gone on trips and vacations together,
and acted like a family. Defendant, Ted, and the girls went on
at least one of those trips. Ted sent the grandchildren to her
house knowing defendant would be present. She denied ever seeing
defendant in the bedroom with any of her granddaughters, although
she saw him tickling the girls, which he did with all their
grandchildren.
Defendant also testified. He categorically denied sexually
assaulting his step-granddaughters. He acknowledged seeing them
after he was released on bail, although his bail conditions barred
contact. Defendant said it had been explained to him that he
could not approach the girls, but that if they came to him it was
not a violation of his bail. When the prosecutor attempted to
cross-examine him regarding post-bail contact with the girls,
defendant asserted his Fifth Amendment privilege.
The judge immediately called a recess, and excused the jury
to allow defendant's attorney to consult with his client. Once
back in the courtroom, counsel advised that defendant did not
intend to testify further, and in fact, had left the courthouse
and told his attorney on the phone that he would probably be
hearing about him in the news. After discussion with counsel, the
judge struck defendant's testimony, and told jurors not to consider
12 A-5308-14T2 it. We more completely describe these events, and the challenged
remarks by the prosecutor, in the relevant section.
On appeal, defendant raises the following points:
POINT I
THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN PRECLUDING TESTIMONY THAT THE ALLEGED VICTIMS' FATHER/UNCLE HAD STATED THAT HE DID NOT BELIEVE THE ACCUSATIONS AGAINST DEFENDANT. U.S. CONST., AMEND. (1947) [sic] XIV, N.J. CONST. (1947), ART. 1, PAR. 10.
POINT II
THE PROSECUTOR DILUTED THE STATE'S BURDEN OF PROOF BY ARGUING IN SUMMATION THAT THE PRESUMPTION OF INNOCENCE WAS EXTINGUISHED BEFORE DELIBERATIONS, VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST., AMEND. XIV, N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below).
POINT III
THE STATE, IN ITS OPENING STATEMENT, COMMITTED MISCONDUCT SUFFICIENTLY PREJUDICIAL TO WARRANT REVERSAL. U.S. CONST., AMEND. XIV, N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below).
POINT IV
THE DEFENDANT WAS DENIED HIS DUE-PROCESS RIGHT TO PRESENT HIS DEFENSE WHEN HIS TESTIMONY WAS STRICKEN AFTER HE ASSERTED HIS RIGHT TO SILENCE AND THEN ABSENTED HIMSELF FROM COURT, AND COUNSEL WAS INEFFECTIVE FOR ACQUIESCING IN THE PROCEDURE. U.S. CONST., AMENDS. VI, XIV, N.J. CONST. (1947), ART. 1, PARS. 9, 10. (Not Raised Below).
13 A-5308-14T2 POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
Defendant contends the court erred in limiting his first
trial attorney's testimony about his conversation with Ted because
it was admissible under N.J.R.E. 803(a)(1) as a prior inconsistent
statement. We note that the first attorney was permitted to
testify as to the fact that the children's father made statements
inconsistent with what he said at trial. Thus, the jury had
information it could have used to conclude that Ted was not
credible. But the judge's limitation properly prevented them from
factoring in Ted's opinion on Ann's credibility in making their
determination.
Prior inconsistent statements are only admissible under
N.J.R.E. 803(a)(1) if admissible while the declarant was
testifying. Since only otherwise admissible statements can come
in under the rule, this improper opinion testimony had to be
redacted from the first attorney's statements. See State v. Pasha,
280 N.J. Super. 265, 270-71 (App. Div.), certif. denied, 142 N.J.
453 (1995). Repeating Ted's statement regarding Ann's
truthfulness would have been improper because one witness is not
permitted to assess the credibility of another witnesses'
14 A-5308-14T2 testimony. It would have been "an encroachment upon the province
of the jury." State v. Frisby, 174 N.J. 583, 595 (2002) (citation
omitted).
Furthermore, a trial court's evidentiary rulings are
"entitled to deference absent a showing of an abuse of discretion,
i.e., there has been a clear error of judgment." State v. Marrero,
148 N.J. 469, 484 (1997); see also Verdicchio v. Ricca, 179 N.J.
1, 34 (2004) (holding admissibility of evidence falls within the
broad discretion of the trial judge). On appellate review, a
trial court's evidentiary ruling must be upheld "unless it can be
shown that the trial court palpably abused its discretion, that
is, that its finding was so wide of the mark that a manifest denial
of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
It is undisputed that Ted's statement about his belief
regarding the truthfulness of Ann's accusation was hearsay as
defined within N.J.R.E. 801(c): "'hearsay' is a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted." Hearsay is only admissible if permitted on some
separate grounds found in the rules of evidence "or by other law."
N.J.R.E. 802. But the statement does not fall under any other
exception.
15 A-5308-14T2 Ted had no personal knowledge of whether Ann was actually
sexually assaulted by defendant. His belief was not based on his
perception. Thus, the opinion he expressed was nothing more than
inadmissible lay opinion testimony. See N.J.R.E. 602; N.J.R.E.
701.
The logical leap between defendant's theory that Ted
instigated the accusations and his expressed doubt about Ann's
statements is not one we are willing to make. To that extent, we
agree with the trial judge that his opinion was irrelevant.
Certainly we agree with the judge that the statement was
inadmissible, albeit for a different reason. See Isko v. Planning
Board, 51 N.J. 162, 175 (1968) (an order or judgment will be
affirmed on appeal if it is correct, even though the judge gave
the wrong reasons for it).
II.
Defendant also contends that the prosecutor's remarks during
summation about the presumption of innocence constituted
prosecutorial misconduct which deprived him of a fair trial. We
review the claim under the plain error rule, as it was not
previously raised. See R. 2:10-2.
The remarks to which defendant now objects are highlighted
in the following quote, which includes language immediately
preceding and following those statements.
16 A-5308-14T2 You've heard all the elements. You've heard all the evidence, you've heard all the girls testify.
Again, I stood up here in front of you at the beginning of the trial. Presume [defendant] innocent. You hadn't seen any evidence. You hadn't heard any testimony from any of the witnesses.
I told you throughout the course of the trial, through the presentation of the evidence, through the presentation of witnesses, the State would tear down that presumption. Brick by brick we would tear it down by showing you the girls and their truthful testimony. By putting [Ted] on the stand.
The State has – by putting [] Finkel on the stand. The State has done that. Now, that the case is over, now that you've seen all the evidence, the presumption of innocence is gone.
And the State's proven to you each and every element of each and every offense beyond a reasonable doubt.
Ladies and gentlemen, you go back into the jury room, bring your common sense with you. Bring your ability to assess the credibility of people. You do it every day in a lot of different situations.
Consider the evidence. Consider the testimony. Remember how the girls testified. Remember how they gave those statements when they were six, eight, and nine years old.
If you consider that evidence, and you consider it fairly, and you consider it thoroughly, you'll come back with the only reasonable verdict in this case, and that's guilty beyond a reasonable doubt to each and every element of each and offense [sic].
17 A-5308-14T2 In considering the weight to be given to this claim, we look
first to the judge's instructions to the jury. He instructed that
the presumption of innocence carried through deliberations unless
and until the jury determined that defendant was guilty.
"Not every instance of misconduct in a prosecutor's summation
will require a reversal of a conviction. There must be a palpable
impact." State v. Roach, 146 N.J. 208, 219, cert. denied, 519
U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
It is noteworthy that no objection was made to the now
objected-to comments when uttered. See State v. Timmendequas, 161
N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136,
151 L. Ed. 2d 89 (2001). The assumption is that the remarks were
not considered prejudicial by defense counsel when made, and in
this case, that conclusion is inescapable.
In his closing statement, although the prosecutor misspoke
regarding the duration of the presumption of innocence, that
fleeting reference was unlikely to have prejudiced the outcome.
The jury was instructed that statements by the attorneys were not
the law, and that only the judge conveyed the law as it applied
to the case. The trial court correctly instructed the jury
regarding the presumption of innocence and the State's burden of
proof.
18 A-5308-14T2 Defendant's argument, that the judge erred in his final
instruction by only tracking the Model Jury Charge and omitting
mention of the prosecutor's misstatement of the law, is not
persuasive. State v. Compton, 304 N.J. Super. 477, 483 (App. Div.
1997), certif. denied, 153 N.J. 51 (1998). It is presumed that
juror's follow a judge's instruction. Ibid. The judge instructed
the jury that the presumption of innocence follows defendant into
the jury room. Thus, the prosecutor's fleeting remarks, even if
a misstatement of the law, were not clearly capable of producing
an unjust result, nor so egregious that they deprived defendant
of a fair trial. Timmendequas, supra, 161 N.J. at 575.
III.
Defendant also contends that the prosecutor's opening
statement included language that was improper and prejudicial,
requiring reversal even under the plain error standard. See R.
2:10-2. The prosecutor described the case as "very, very ugly,"
and involving "hideous acts performed against the most vulnerable
of all victims, children[.]"
Additionally, the prosecutor introduced himself by stating
that it was his "job in this case to represent the people of the
State of New Jersey[.]" Defendant argues that language was
intended to align the prosecutor with the jury, to the exclusion
of the defendant. We do not agree as to either claim.
19 A-5308-14T2 The prosecutor's opening remarks, in relevant part, are as
follows:
Good morning, ladies and gentlemen. I know we've been introduced before, but my name is [ ]. I'm [an] Assistant Prosecutor here in Camden County. It's my job in this case to represent the people of the State [of] New Jersey.
. . . .
Now, this case, this is somewhat of a difficult case. That's because it [is] a very, very ugly case. It involves hideous acts performed against the most vulnerable of all victims, children. And that's exactly what this defendant did. He preyed on three little girls, his three step[-]grandchildren, who were six, eight and nine years old at the time that he did it.
I'm not going to sugarcoat this for you, ladies and gentlemen. You're going to hear things that are going to make you uncomfortable. You're going to hear things that may disgust you. Listen to the facts, listen to the evidence.
In their context, the description simply does not appear
egregious, or pose the risk of having so inflamed or prejudiced
the jury that defendant was deprived of his right to a fair trial.
The prosecutor is entitled to describe the facts he or she intends
to prove by competent evidence. State v. Wakefield, 190 N.J. 397,
442 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L.
Ed. 2d 817 (2008). A prosecutor is permitted to comment on the
evidence he intends to present to the jury. Ibid. at 442.
20 A-5308-14T2 It also bears noting that not only did defense counsel not
find the introductory language objectionable, he responded in his
opening to the comments the prosecutor had made. He agreed that
the alleged crimes were "heinous," -- but that it was important
to keep in mind that the State had to prove beyond a reasonable
doubt that the offenses occurred, and that sympathy could not play
a role in the jury's decision. The prosecutor's description,
albeit somewhat hyperbolic, did not "substantially prejudice[]
defendant's fundamental right to have a jury fairly evaluate the
merits of his defense." Timmendequas, supra, 161 N.J. at 575.
Furthermore, in this case, as in every case, the judge instructed
the jury regarding the manner in which they were to weigh the
evidence before rendering their verdict. He said, tracking the
model jury charge:
As jurors, it's your duty to weigh the evidence calmly, without any passion, prejudice, or sympathy, as any influence caused by these motions [sic] has the potential to deprive both the State and the defendant what you promised them, a fair and impartial trial by fair and impartial jurors.
Also, speculation, conjecture, or any other form of guessing, should play no role in the performance of your duties.
[Model Jury Charge, (Criminal), "Criminal Final Charge" (2014).]
21 A-5308-14T2 Again, it is presumed that the jury understood and followed
the trial judge's instructions. Manley, supra, 54 N.J. at 271;
Compton, supra, 304 N.J. Super. at 483.
Defendant relies on State v. Negron, 355 N.J. Super. 556
(App. Div. 2002) to support his argument that the prosecutor's
introduction was improper and prejudicial.2 In Negron, the
prosecutor stated that he represented "the citizenry of our State."
Id. at 576. He added, however, that he was "alone on behalf of
the State[,]" and that he wanted the jurors "to pretend that in
that seat next to [him] are all [their] friends, neighbors and
relatives in the community because it's on their behalf that [he]
bring[s] this case to [the jurors] and as a public servant it's
[his] obligation and [his] desire to seek out justice. . . ."
Ibid. These comments were prejudicial because they asked the jury
to align themselves with the State to the exclusion of the
defendant. In contrast, in this case, the prosecutor's explanatory
introduction was fleeting, arguably factual and thus
unobjectionable. It was not prejudicial.
Thus, we conclude that the prosecutor's remarks in the opening
statement were neither clearly capable of producing an unjust
2 We do not address counsel's reliance on State v. Raiford, No. A- 4370-10 (App. Div. Oct. 16, 2013) because it is an unpublished decision. See R. 1:36-3.
22 A-5308-14T2 result, nor so egregious that defendant was deprived of a fair
trial. Timmendequas, supra, 161 N.J. at 575. Defendant's failure
to object only corroborates the conclusion. Id. at 576.
IV.
Defendant contends he is entitled to a new trial because his
testimony was stricken after he claimed the Fifth and left the
courthouse. This unfortunate outcome was the product of
defendant's own conduct and does not warrant reversal of the
conviction.
As a threshold matter, we will not now address defendant's
ineffective assistance of counsel claim. His attorney's decisions
regarding whether to object to the judge striking the testimony
will be deferred to petition for post-conviction relief, should
defendant choose to pursue such relief. The record is insufficient
for evaluation of the claim. See State v. McDonald, 211 N.J. 4,
30 (2012). Additionally, it is sheer unwarranted speculation to
suggest that had the judge allowed the testimony to stand, the
trial's outcome would have been different.
Turning to the merits of his argument, during his direct
examination, defendant denied abusing his step-granddaughters.
The judge called a recess when during cross-examination, the
prosecutor attempted to query defendant regarding his contacts
with the step-grandchildren despite bail conditions which
23 A-5308-14T2 prohibited them. Defendant unexpectedly claimed his Fifth
Amendment privilege against self-incrimination, and the court
excused the jury to allow defense counsel time to confer with his
client. The trial court then said to counsel, while defendant was
still in the courtroom: "Let [defendant] know that, if he doesn't
want to answer questions, I've got to strike his direct[,]" to
which defense counsel responded, "I know."
Upon his return, counsel advised the court, "I think he is
going to have the testimony stricken, because he's thinking he's
going to get locked up." The court advised defense counsel that
he was "going to direct [defendant] to testify[,]" and if he
refused, it would "cite him in contempt." The court further stated
that if defendant continued to refuse to testify, the prosecution
could move to strike his testimony. Defense counsel again asked
for, and was granted, a second recess to confer with defendant.
It is not clear if defendant was in the room during this colloquy.
When defense counsel returned to the courtroom alone after
speaking with defendant, he explained:
[T]the court gave me the opportunity to go out and speak to [defendant] about . . . his exertion of his Fifth Amendment right. And with respect to his testimony, of course, everything that gave rise to this was concerning the no contact as a point of his bail.
24 A-5308-14T2 As a result of that, the discussion went from the Fifth Amendment issue to whether . . . his bail was going to be revoked. And I told him, I don't know. But that's not an issue before the court at this particular point. He asked for some assurances. I told him that I could not give him any assurances to that.
I told him what would happen here is that we would come back into court if you're going to exert your Fifth Amendment right, which I believe he might have waived . . . , so, he wouldn't have to testify.
But certainly you have to answer questions, or if you choose not to, then that's another option . . . we were talking about this.
[W]hen I went out this time, [defendant] wasn't out there. So, I called him on the phone. And he advised me that he was not going to be returning. And we would probably hear about him on the news today.
The court and defense counsel then engaged in this dialogue:
THE COURT: What I'm going to do is, . . . I think it's clear at this point, he's voluntarily chosen –
[DEFENSE COUNSEL]: Not to testify.
THE COURT: -- not to be here.
[DEFENSE COUNSEL]: Right.
THE COURT: So, clearly at this point, he has waived his right . . . to his Fifth Amendment - -
25 A-5308-14T2 THE COURT: -- by taking the stand, and revoking it at this point.
Based on that information, quite frankly, I would be compelling him to continue to testify.
THE COURT: Now, if he refuses, then he can be held in contempt of court.
Based on what you're telling – your conversation with your client, he has chosen not to testify, and not to continue.
[DEFENSE COUNSEL]: Correct.
THE COURT: Okay. Therefore, I – I would be compelled to direct that his entire testimony be stricken from the record.
Later in the proceeding, but before striking defendant's
testimony, the judge asked defense counsel if defendant's position
had changed, to which defense counsel responded that it had not.
Defendant concedes that defense counsel did not object to the
striking of his testimony. R. 1:7-2. Therefore, this issue is
reviewed for plain error, which requires the error to be "of such
a nature as to have been clearly capable of producing an unjust
result[.]" R. 2:10-2.
"It is well-settled that a defendant who voluntarily takes
the stand and offers testimony in his own behalf exposes himself
to cross-examination and the possibility of being compelled to
26 A-5308-14T2 testify against himself." State v. Bogus, 223 N.J. Super. 409,
422 (App. Div.), certif. denied, 111 N.J. 567 (1988); see also
Brown v. United States, 356 U.S. 148, 154-56, 78 S. Ct. 622, 626-
27 2 L. Ed. 2d 589, 596-97 (1958) ("If [a criminal defendant]
takes the stand and testifies in his own defense, his credibility
may be impeached and his testimony assailed like that of any other
witness, and the breadth of his waiver is determined by the scope
of relevant cross-examination. 'He has no right to set forth to
the jury all the facts which tend in his favor without laying
himself open to a cross-examination upon those facts.'") (quoting
Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S. Ct. 944,
949, 44 L. Ed. 1078, 1083 (1900)).
"The practical result, therefore, of a defendant's decision
to testify is to effect a waiver of his constitutional privilege
against self-incrimination, at least to the extent necessary to
permit effective cross-examination." Bogus, supra, 223 N.J.
Super. at 422. Moreover, when a defendant is called to the stand
by his counsel and testifies without objection, "[t]he inference
is clear that defendant knowingly, voluntarily and intelligently,
with the advice of counsel, waived his right not to testify and
took the stand on his own behalf." Id. at 423.
One of the essential purposes of cross-examination is to test
the reliability of testimony given on direct-examination. State
27 A-5308-14T2 v. Branch, 182 N.J. 338, 348 (2005). Generally, direct testimony
cannot be deemed reliable unless tested in the "crucible of cross-
examination." Ibid. Our courts have recognized "the fundamental
unfairness of permitting such testimony to be considered by the
trier of fact." State v. Feaster, 184 N.J. 235, 249 (2005). Thus,
"[w]hen a witness's direct testimony concerns a matter at the
heart of a defendant's case, the court should strike that testimony
if the witness relies on the privilege against self-incrimination
to prevent cross-examination." Id. at 248.
It is mere speculation for defendant to assert that had he
been given the opportunity to understand the court's contempt
power, or more explicitly, that his direct testimony would be
stricken if he left, that his decision would have changed.
Defendant heard the judge's initial comments and knew his testimony
would be stricken. Unless counsel was lying to the court, counsel
reiterated to defendant once outside the courtroom, the likely
outcome of his continued reliance on his Fifth Amendment privilege
to remain silent.
Clearly, defendant's direct testimony went to the heart of
the matter, as he denied sexually abusing his step-granddaughters.
It would not have been reasonable for him to assume that having
made those statements, he could leave and avoid cross-examination
on the central issue in the case, without any repercussions.
28 A-5308-14T2 Furthermore, defendant acknowledges that had he continued to
refuse to subject himself to cross-examination, regardless of the
court's contempt power, his direct testimony would ultimately have
been legitimately stricken. The argument seems to be that the
court should have adjourned the matter, or should have taken other
steps to attempt to convince him to testify, on the chance he
would continue to testify without asserting the Fifth. An
overnight delay in the hopes defendant would change his mind was
not necessary – defendant made a decision for which he paid a high
price. He knew his testimony would be stricken if he left, and
chose to do so.
Finally, defendant objects to his sentence, asserting that
the judge's weighing of the aggravating and mitigating factors was
not supported by the record, and that it resulted in the imposition
of excessive terms of incarceration. He also complains that the
court did not take into account the real time consequences of
NERA.
Trial courts "are given wide discretion so long as the
sentence imposed is within the statutory framework." State v.
Dalziel, 182 N.J. 494, 500 (2005). The standard of review is "one
of great deference and '[j]udges who exercise discretion and comply
with the principles of sentencing remain free from the fear of
29 A-5308-14T2 second guessing.'" Id. at 501 (quoting State v. Megargel, 143
N.J. 484, 494 (1996)) (alteration in original).
"[A] trial court should identify the relevant aggravating
[factors of N.J.S.A. 2C:44-1(a)] and mitigating factors [of
N.J.S.A. 2C:44-1(b)], determine which factors are supported by a
preponderance of the evidence, balance the relevant factors, and
explain how it arrives at the appropriate sentence." State v.
O'Donnell, 117 N.J. 210, 215 (1989).
"An appellate court should disturb the sentence imposed by
the trial court only in situations where the sentencing guidelines
were not followed, the aggravating and mitigating factors applied
by the trial court are not supported by the evidence, or applying
the guidelines renders a particular sentence clearly
unreasonable." State v. Roach, 146 N.J. 208, 230 (citing State
v. Roth, 95 N.J. 334, 364-65 (1984)), cert. denied, 519 U.S. 1021,
117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
Defendant's sentence to sixteen years' imprisonment subject
to NERA does not shock our conscience. See Roth, supra, 95 N.J.
at 363-64.
The court found three aggravating factors, N.J.S.A. 2C:44-
1(a)(3), (6), and (9), and two mitigating factors, N.J.S.A. 2C:44-
1(b)(7) and (11). The court concluded that the risk of re-offense
arose from defendant's prior contacts with the court system, and
30 A-5308-14T2 the fact the present indictment alleged eight indictable charges
involving three different victims. This was sufficient evidence
in the record to justify the factor. As to N.J.S.A. 2C:44-1(a)(b),
defendant's priors were certainly quite old, from 1988 to 1998.
Although we may not agree with the trial judge regarding the
appropriateness of the factor based on the age of defendant's
prior criminal history, we cannot say that the judge's decision
to find that factor was unreasonable or not authorized by law.
Nor do we agree that the great weight the judge gave to
N.J.S.A. 2C:44-1(a)(9) was improper. In this case, the victims
are children. That factor has great weight not only as to the
individual defendant, but to the public as well.
The court was not compelled to explicitly take into account
the real time consequences of NERA. NERA is a consideration,
among others, that plays a role in a judge's decision to fashion
an appropriate sentence. See State v. Hernandez, 208 N.J. 24, 50
(2011) (quoting State v. Marinez, 370 N.J. Super. 49, 58 (App.
Div.), certif. denied, 182 N.J. 142 (2004)).
That the judge found mitigating factors no doubt informed his
decision to impose concurrent sentences for the offenses committed
against the victims. Similarly, it also explains his reduction
from the outer limit of the range of twenty years. Overall, the
31 A-5308-14T2 balancing between aggravating and mitigating factors is
unassailable.
Affirmed.
32 A-5308-14T2