STATE OF NEW JERSEY v. TIMOTHY HARDY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2744-04T22744-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY HARDY,

Defendant-Appellant.

________________________________

 

Submitted: September 20, 2005 - Decided:

Before Judges Axelrad and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-03-0935.

Maynard & Truland, attorneys for appellant (Joe B. Truland, Jr. on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Timothy Hardy was convicted by a jury of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; one count of third-degree terroristic threats, N.J.S.A. 2C:12-3a; and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant was sentenced to an aggregate term of twenty-two years with an 85% parole disqualifier under the No Early Release Act (NERA). On appeal defendant asserts error in the court's failure to grant a mistrial or new trial, claiming prosecutor misconduct in that the State's attorney improperly alluded to his failure to take the stand. Defendant also challenges the imposition of a parole disqualifier under NERA, claiming the evidence did not establish the acts occurred after enactment of the statute and the judge did not give an appropriate instruction to implicate NERA. We are not persuaded by these arguments and affirm.

On March 14, 2003 an Essex County grand jury handed down a nine-count indictment against defendant charging the aforementioned offenses. Each of its counts alleged the acts as having occurred on diverse dates between January l, 1998 through December 31, 2000. The Essex County Prosecutor filed a complaint mirroring the charges contained in the indictment.

The victim, M.F., born on April 22, 1989, was defendant's stepdaughter. The victim's mother Maria married defendant in l998 when M.F. was nine years old, and they resided together at Glenwood Avenue in East Orange. Multiple acts of sexual abuse occurred during that time; defendant would touch M.F.'s legs, arms, breasts and buttocks and would kiss her vagina. Defendant's behavior escalated in 2000 when the victim was in fifth grade and the family moved to Bergen Street in Newark to live with defendant's mother. According to M.F., while her mother was out doing errands, defendant told her to come into his room and locked the door, disrobed her, began fondling her and then forcibly penetrated her vagina and rectum. M.F. testified that "I would scream, and then he would put a pillow over my mouth. And then I would scream louder, and then he would hit me." Defendant threatened M.F. that if she told anyone about what had happened, he would kill her mother. M.F. believed and complied because he would "hit her [mother] a lot," and M.F. did not want her mother to be killed. M.F. also testified that defendant had penetrated her anally on many occasions and would strike her with an open hand "all the time," leaving red markings.

The sexual abuse continued until 2000, when a few months prior to the birth of defendant and Maria's son in October, Maria and M.F. moved out of the Bergen Street house and in with Maria's mother. On August 17, 2002 M.F. disclosed the incidents to her grandmother and told her they were living at the Glenwood Avenue and the Bergen Street residences when they occurred. The following day M.F. gave a statement to the police and DYFS was contacted.

M.F. was examined by Dr. Patricia Morgan-Glenn, an expert in the field of child abuse sexual assault. Dr. Morgan-Glenn found a hymenal notch, which she testified was suggestive and consistent with penetrating trauma. The expert testified about M.F.'s description of the numerous incidents of sexual abuse, noting M.F. had denied any prior sexual history. Dr. Susan Esquilin, an expert in the field of child sexual abuse, explained the reasons for child-victims' delays in reporting their abuse.

During summation, the prosecutor accompanied her discourse with a PowerPoint presentation. After noting that the defense was placing the victim's credibility in issue, the prosecutor stated:

the Court told you when we first started the trial the defense has no obligation to present a case. But once they do, once they put on a defense . . . I submit that what they say and their use of the evidence is subject to scrutiny. . . And why are they going to such great lengths to make you think that nothing happened, that the victim is fabricating this evidence? I submit to you the State's witnesses have no reason to lie to you. The only person that has motives to make you think this didn't occur is the defense.

The power point slide accompanying her remarks read:

DEFENDANT IS NOT CREDIBLE

- I submit the State's witnesses have no reason to deceive you. Only one person had motives here and that is the defendant.

- His means of obtaining knowledge of the facts.

- Defendant sat through the whole trial. He heard every witness testify.

- Clearly, the Defendant will Go to Any Extreme to Overcome these Charges.

-That includes asking Jury to Believe that the Victim would Fabricate being Sexually Assaulted

The court sustained defense counsel's objection to the slide and directed the prosecutor to turn to the next slide and continue her summation. Following summations, defense counsel moved for a mistrial, contending the prosecutor's remarks and presentation violated defendant's constitutional rights against self-incrimination as they implied defendant was not credible because he did not take the stand and refute the testimony of the State's witnesses. The court agreed the State had pursued improper inferences but denied the motion, having concluded that a cautionary instruction was sufficient to cure any taint or prejudice.

The court gave a general instruction that stricken testimony is not evidence and must be disregarded and not used in the jurors' discussions or deliberations. Several times the court repeated that the jurors are the sole judges of the facts based on the evidence, which does not include counsels' opening or closing statements. Critically, the court also gave a strong specific curative instruction, stressing the State's burden to prove each element of the charge beyond a reasonable doubt and the absence of any burden on defendant to prove his innocence, and advising the jurors to disregard certain words depicted on the PowerPoint screen and any comments made by the prosecutor with regard to the contents of that screen. Judge Isabella stated:

I emphasize this [burden of proof] charge to you right now because during the prosecutor's summation she made a couple comments, in other words, in her summation, and put something on the screen which was improper. The screen that said "the defendant is not credible," which I have marked C-1 for the record, I had her turn off during the summation. You have to disregard what was on that screen and disregard everything she said with respect to that screen. It said in pertinent part: A defendant is not credible. And he sat through the whole trial, he heard every witness testify. Reference to those things. Okay? I'm concerned that these words may infer to you that because he sat through the whole trial and heard every witness, that he does have an obligation to refute the witnesses or that he should refute the witnesses, or that he is not credible because he chose not to. That's not the law. That's not true. Okay? He is presumed to be innocent and he has no obligation whatsoever to offer any proof of his innocence. The burden is on the State. That burden never shifts to the defendant. So those comments by the prosecutor have to be ignored by you and don't pay any attention to those comments whatsoever. All right?

The court later gave the no adverse inference charge:

Now, and this goes back to the prosecutor's summation which she made some comments which were not proper. The defendant in this case chose not to be a witness. It is the constitutional right of a defendant to remain silent. I charge you are not to consider for any purpose or in any manner in arriving at your verdict the fact that defendant did not testify, nor should that fact enter into your deliberations or discussions in any manner or at any time. The defendant is entitled to have a jury consider all the evidence and he is entitled to the presumption of innocence, even if he does not testify as a witness.

The court concluded with a NERA instruction as to the sexual assault charges:

If you find the defendant guilty of any of the counts 1 through 7, you have to answer another question. You must then determine whether the state has proven beyond a reasonable doubt that the crime committed by the defendant is a violent crime. Under our law, a violent crime is a crime which the defendant -- where the defendant used or threatened the immediate use of physical force during an attempted assault or sexual assault. For purposes of determining whether the defendant has committed a violent crime, the meaning of "physical force" . . . is different from the level of force that I previously defined. It means an independent act of force or violence in addition to the act of the sexual touching or penetration constituting physical force and the victim does not consent. If you're satisfied the State has proven beyond a reasonable doubt that the defendant committed a violent crime with respect to counts 1 through 7, you must mark six on the appropriate sections of the jury verdict form which we supplied to you. If you are not satisfied beyond a reasonable doubt that the defendant has committed a violent crime with respect to counts 1 through 7, you must write no on a verdict sheet. . . . If your verdict is guilty, the next question is: if you find guilt, the next question is, do you find this to be a crime of violence? Yes or no.

The jury returned a verdict of guilty on all charges and a finding that defendant committed a crime of violence with regard to the aggravated sexual assault and sexual assault charges. At sentencing, defense counsel moved for a new trial based on the sufficiency of the evidence and the prosecution's improper summation. In denying the motion, the court noted it had promptly directed removal of the objectionable slide and had provided a strong curative instruction, reasoning:

I cured the jury of what I thought was a mistake by the prosecutor. I gave them adequate instruction, and I don't think that based upon the mistake made by the prosecutor [] in summation, that's what convinced them to find the defendant guilty of the crime charged. The evidence against the defendant was overwhelming. It was credible. And I believe they did their duty and followed their oath. They followed my instructions, specifically, in my mind, and found him guilty pursuant to the evidence that was presented during the trial.

We discern no error in the court's denial of defendant's motion for a mistrial, or alternatively, for a new trial based on the prosecutor's summation. The Fourteenth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." State v. Lanzo, 44 N.J. 560, 563 (1965) (quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965)). Thus the prosecution should not bring attention to a defendant's failure to testify directly or by inference. State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991). Our Supreme Court has called it an "absolute right" to remain silent "without suffering any penalty or adverse inference." State v. Dent, 51 N.J. 428, 440 (1968).

We utilize the same standard for granting a mistrial as for granting a new trial motion:

namely whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps.

[Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2006) (citations omitted).]

The trial court is best equipped to gauge the effect of the improper evidence on the jury and whether it is susceptible to being cured by a cautionary or limiting instruction. State v. Winter, 96 N.J. 640, 646-47 (1983). Accordingly, we defer to the trial court's discretion in issuing a limiting instruction and in denying a mistrial unless manifest injustice would result. State v. Labrutto, 114 N.J. 187, 207 (1989).

Unfortunately, the combination of the challenged comments and slide presentation subtly and improperly drew attention to defendant's failure to testify. We are satisfied, however, that the prompt, decisive action of the court in sustaining defense counsel's objection and in directing removal of the objectionable slide, coupled with the repeated general and strong specific curative instructions, sufficiently muted any potential adverse impact the prosecutor's comments and presentation may have had on the jury and defendant's right to a fair trial. Moreover, based on the overwhelming evidence of defendant's guilt, the interests of justice do not warrant a new trial.

There is no merit to defendant's NERA challenges. The indictment charged and the victim's testimony clearly established that the offenses occurred between 1998 and 2000, subsequent to NERA's enactment. N.J.S.A. 2C:43-7.2, L. 1997, c. 117, 2, effective June 9, 1997. M.F. was nine years old when her mother married defendant and they lived together from 1998 to 2000. M.F. testified to specific acts of sexual abuse and aggravated sexual assault occurring during that time at their homes in East Orange and Newark. The judge clearly instructed the jury that one of the elements the State was required to prove to sustain a conviction on the sexual assault charges was that defendant's acts occurred during "the time period between January 1st, '98 and December 31, 2000."

Moreover, the judge properly molded the NERA instruction to the facts of the case and charged the jury consistent with the NERA statute in effect at the time of the offenses and the case law interpreting the statute. NERA was enacted in l997 to penalize more severely the criminal who is prone to use violence by imposing a mandatory minimum prison term and mandatory post-release parole supervision for any first- or second-degree conviction that is found to constitute a violent crime. State v. Martel Johnson, 166 N.J. 523, 527 (200l). A "violent crime" was defined as:

[a]ny crime in which the actor causes death, causes serious bodily injury as defined in subsection b of N.J.S.2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

[N.J.S.A. 2C:43-7.2(d)].

Judge Isabella's instruction contained the appropriate two-step obligation on the jury enunciated in State v. Thomas, 166 N.J. 560, 573-74 (2001), i.e., to determine the sexual offenses committed by defendant were violent crimes and defendant used an independent act of force or violence in addition to the act of sexual touching or penetration. The victim testified that defendant slapped her with an open hand on numerous occasions, leaving red markings and placed a pillow over her mouth when she resisted his sexual assaults. The record thus clearly contains substantial credible evidence to support the jury's finding that defendant committed an independent act of violence sufficient to constitute a violent crime under the statute and implicate the NERA parole disqualifier on the aggravated sexual assault and sexual assault convictions.

 
Affirmed.

This provision was replaced by amendment L. 200l, c. 129, 1, effective June 29, 200l, eliminating these definitions.

(continued)

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A-2744-04T2

RECORD IMPOUNDED

October 3, 2005