STATE OF NEW JERSEY v. MICHAEL J. KEMBER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6555-03T46555-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. KEMBER,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Burlington County,

Indictment No. 02-12-1605.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael Confusione,

Designated Counsel, of counsel and on

the brief).

Appellant, Michael J. Kember, submitted

a pro se supplemental brief.

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent (Alexis

R. Agre, Assistant Prosecutor, on the

brief).

PER CURIAM

Defendant, Michael Kember, was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, stemming from an incident involving a ten-year old girl, V.R., at a Target department store. Defendant appealed his convictions and advances numerous arguments in a brief filed by counsel and in a pro se supplemental brief, including that (1) the trial court erred when denying defendant's motions for acquittal, judgment notwithstanding the verdict, and a new trial; (2) various jury instructions, regarding sexual assault and flight, were erroneously given; (3) he was entitled to an evidentiary hearing on competency; (4) multiple evidentiary rulings admitting "fresh complaints," the child's statements under N.J.R.E. 803(c)(27), and defendant's statements to the police, including those referencing prior bad acts, were erroneous; (5) his confession was coerced and should have been suppressed; (6) prosecutorial misconduct during summation deprived him of a fair trial; (7) a mistrial should have been declared when the jury indicated it was deadlocked; (8) his sentence of seven years imprisonment with application of the No Early Release Act, N.J.S.A. 2C:43-7.2, was manifestly excessive; and (9) defendant received ineffective assistance of counsel. The last argument is raised only in the a pro se supplemental brief.

We reviewed each of these arguments in light of the record and the pertinent law and have concluded that they are all without merit. R. 2:11-3(e)(2). We find it necessary only to discuss two of defendant's arguments: that the trial court incorrectly handled two questions from the jury and that defense counsel was ineffective.

Before addressing these two arguments, we first summarize the facts upon which defendant's convictions were based. V.R., accompanied by her father, grandmother, and two sisters were shopping in a Target Store for a blow-up pool for their backyard. After a pool was selected, V.R. was told she could pick out a toy. While V.R. was alone in the aisle looking at dolls, defendant approached her from behind.

V.R. was "surprised" by defendant and testified that he "inched his fingers up my shorts on the back of my thigh, on the top of it and ran his fingers from the outside to the inside on the bottom of my bottom. . . . [l]ike the outline of my underwear." V.R. testified that defendant placed his hand underneath her shorts and touched her skin. According to V.R., defendant then approached her from the side and said "shhh" before he "wiggled his eyebrows and then ran down the way he was going." V.R. briefly observed defendant's face before he fled. At this point, V.R. "just stood there for a second and kind of like realized what happened." She testified that she "tried to react but [] couldn't. My whole body failed me. It's like my legs didn't move and I couldn't scream." She began to cry and went to find her grandmother and father. After the incident, V.R. testified that she was "[v]ery afraid, very scared, sad," and "couldn't sleep cause [she] kept seeing [defendant]."

Defendant testified on his own behalf at trial and admitted that he approached V.R. from behind while she was alone in the toy aisle. Defendant admitted that he "brushed [his] hands against the back of her leg." At trial, defendant claimed that the touch was "[s]omewhere up between above the knee," and lasted for a "split second." Defendant denied being sexually attracted to V.R. or deriving any sort of gratification from touching her. Nonetheless, defendant testified that he was "ashamed" and "felt pretty bad" about what he had done. On cross-examination, defendant admitted that he touched V.R. in an inappropriate place.

Defendant's picture was identified through the store's surveillance tapes, and eventually broadcast on television. After defendant saw his picture on a news show, he fled to the woods. Once apprehended, defendant testified that "[t]he first initial words out of my mouth was I didn't mean to harm anyone." After being handcuffed, defendant admitted telling the police about an incriminating note he had written which he "felt for some reason that it showed my remorse, my regret before I had been captured. And so I wanted them to have it."

In formal statements, defendant admitted touching V.R. "on the back of her leg" as part of a "challenge" and "felt [he] needed to do this challenge and see if [he] could get away with something." Yet, he also stated that it was "possible" that he touched her underneath her shorts on her buttocks, and that he "probably" moved his hand up to V.R.'s buttocks when he touched her. Defendant claimed that he had "a mania, some sort of problem." When asked if a "sexual thing" prompted him to touch V.R., defendant responded, "I suppose." In addition, defendant admitted to having a problem with "touching or thinking about [] little girls," and stated that he had touched other girls on different occasions.

While incarcerated in the Burlington County Jail, defendant confided in another inmate who happened to be an attorney whose license to practice law was suspended. Defendant asked the inmate if he "would take a look at some of the paperwork that he had concerning the case." The inmate testified that defendant's papers stated that he "was not attracted to [V.R.]" nor aroused by touching her, but that "[t]he thrill was in the hunt." The inmate's notes about defendant's papers also included a statement from defendant that touching V.R. "was a way for a manifestation of my dark side to get its kicks. But there was by no means a moment of glee. I was not in my right mind."

N.J.S.A. 2C:14-2b provides, in pertinent part, that, "[a]n actor is guilty of sexual assault if he commits an act of sexual conduct with a victim who is less than 13 years old and the actor is at least four years older than the victim." Under the statute, "sexual contact" is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1d. "Intimate parts" is defined as "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." N.J.S.A. 2C:14-1e.

Any person "who engages in sexual conduct which would impair or debauch the morals of [a] child [under the age of 16], or who causes [such] child harm that would make the child an abused or neglected child as defined by [statute] is guilty of" third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a.

After the jury began its deliberations, the trial court received the following two questions from the jury: "Clarification, please. On page 10-A, can a defendant be found guilty of sexual contact if he does not touch any of the body parts specified? And is the top of her leg, at the edge of her panties, the buttocks or anal or genital area?"

After discussion with counsel, the judge concluded that he should not answer either question. Instead, the judge told the jury that it would be improper for him "to answer a specific question that involves a fact-finding function that you have as a member of the jury. . . . My job as a judge is to provide you with the law. . . . By me answering the question, I'd be deciding something that you would have to decide." Consequently, the judge decided that the best response would be to "reread to you the entire sexual assault charge." And that is what the judge did.

With regard to the second question, whether the "top of her leg, at the edge of her panties" is "the buttocks or anal or genital area," defense counsel agreed with the court that it was a factual question. We also agree that the judge correctly refused to answer that particular question.

The jury heard testimony from V.R. regarding the area of her body that was touched. It also heard testimony from defendant and reviewed a statement he made to the police regarding his conduct. The statute does not define where a child's leg ends and her "buttocks" begins. Based on V.R.'s testimony, the jury was appropriately allowed to use common sense and evaluate her credibility and defendant's in determining whether defendant touched V.R.'s buttocks.

With regard to the first question, asking whether defendant could be guilty if he failed to touch any of the statutorily specified body parts, defense counsel argued that the judge should simply answer the question "no." We agree with defense counsel that that particular question should have been answered by the court. However, by re-reading the pertinent charge the judge ensured that any error was harmless.

The judge informed the jury that, as per the statute, "intimate parts" means "the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." He reiterated that the State must prove that defendant touched one of these areas. All the elements of sexual assault were therefore defined and read more than once to the jury. In addition, the jury verdict sheet and instructions included simple assault as an alternative to sexual assault. Thus, the jury's question was answered and the jury was correctly instructed.

Defendant's pro se brief primarily raised the same issues as appellate counsel's brief, except for an ineffective-assistance-of-trial-counsel claim. Defendant alleges that trial counsel failed to meet with him before trial frequently enough, failed to follow defendant's recommendations, and failed to argue that V.R.'s videotaped statement was manipulated by her mother. In addition, he asserts that counsel failed to argue that the surveillance tape from the Target Store was edited and doctored. Moreover, defendant objects to the manner in which his attorney cross-examined V.R. and referred to her as a "good witness" in his summation. Defendant further asserts that his attorney's failure to press V.R. and otherwise vigorously represent him "forced" him to take the stand on his own behalf.

To establish a prima facie case of ineffective assistance, defendant must demonstrate two factors: first, that defense counsel's performance was deficient; and second, that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Fritz, supra, 105 N.J. at 63. A defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." U.S. v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, any claimed errors of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Adequate assistance of counsel is measured by a standard of "'reasonable competence.'" Fritz, supra, 105 N.J. at 53. The standard does not demand "the best of attorneys," but rather requires that attorneys be not "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989); see State v. Fisher, 156 N.J. 494, 500 (1998).

Here, defendant's ineffective assistance claim is without merit. Defendant's argument mainly concerns trial tactics employed by his attorney. None of the claimed deficiencies deprived defendant of a fair trial. Even if we assume an error occurred, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris, 181 N.J. 391, 432 (2004).

Defendant's most serious allegation - that he would not have testified had his lawyer followed his alleged recommendations - still fails to present a valid ineffective assistance of counsel claim. That is so because, even disregarding defendant's testimony, other evidence including the testimony of V.R. and her grandmother, defendant's confession to the police, the inmate's testimony, the videotape from Target, and the police testimony provide a sufficient basis to conclude that the jury's guilty verdict was reliable.

Accordingly, because all of the numerous arguments advanced by defendant and his counsel lack merit, we affirm defendant's conviction and sentence. However, we note that defendant's judgment of conviction erroneously reflects an "adjudication by" guilty plea. Thus, we remand solely to correct the judgment to note that defendant's conviction occurred by jury trial.

 
Remanded to correct the judgment of conviction. Affirmed in all other respects.

Defendant also pointed out various inconsistent statements that were made by certain witnesses. However, witness credibility is uniquely a jury concern. We also reject as unfounded defendant's charge that the trial judge was biased and in "league with the prosecution."

(continued)

(continued)

11

A-6555-03T4

RECORD IMPOUNDED

December 6, 2005