STATE OF NEW JERSEY v. NORBERTO VAZQUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0814-03T40814-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORBERTO VAZQUEZ,

Defendant-Appellant.

_______________________________________

 

Submitted April 25, 2006 - Decided July 19, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-01-0001.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Russell J. Curely, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a one-week jury trial, defendant Norberto Vazquez was convicted of sexually assaulting an eight-year-old girl, T.P., in the middle of the night while T.P. and her five-year-old sister L.P. were sleeping over at the apartment of defendant and his girlfriend, M.G. Specifically, defendant was found guilty of one count of second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b; one count of third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a); and one count of fourth-degree lewdness, in violation of N.J.S.A. 2C:14-4(b)1, all with reference to his conduct with T.P. He was acquitted of other miscellaneous charges. Defendant was sentenced to a five-year prison term on the second-degree offense and a concurrent nine-month term on the fourth-degree offense, along with the imposition of numerous fines and penalties.

Defendant appeals his convictions on various substantive grounds, and also argues that he was deprived of the effective assistance of trial counsel. We affirm, but reserve the ineffectiveness claim for a future potential application by defendant for post-conviction relief.

I.

On April 3, 2001, the victim's mother, R.P., was living with her two young daughters in a multi-family home in Elizabeth. R.P.'s daughters were playmates with C.G., a nine-year-old girl who lived upstairs with her mother, M.G., and with defendant, M.G.'s long-time boyfriend.

R.P. went out for the evening to celebrate her birthday, leaving her daughters, T.P. and L.P., in the care of M.G. in the upstairs apartment. M.G. arranged to have R.P. pick up her daughters at 7:00 a.m. the following morning. The sisters went to sleep that evening in C.G.'s bedroom, with T.P. and L.P. doubling up in the same bed. They went to bed wearing tee shirts, shorts and underwear.

According to T.P., during the middle of the night, T.P. awoke, finding her shorts and underwear pulled down, with her vagina and buttocks exposed. At that moment T.P. saw defendant standing naked next to her and felt him touching her vagina and her back. Defendant then opened T.P.'s legs and briefly rubbed her vagina with his fingers. He then told T.P. to go back to sleep and he left the bedroom.

T.P. then ran out of the bedroom and attempted to tell M.G. and C.G. what had occurred, but found them both asleep. T.P. returned to the bedroom and related the sexual incident to L.P. The two sisters remained awake for the rest of the night.

The following morning R.P. picked up her daughters and returned to her own apartment. R.P. soon noticed that both girls were acting oddly and appeared frightened. T.P. then told her mother that defendant had been "fresh"; more specifically, that during the course of the night defendant had stood naked in the bedroom, pulled down her shorts and told her to open her legs.

Upon hearing her daughter T.P.'s account, R.P. immediately called the police. Both sisters were examined at a local hospital and then gave videotaped statements to the police.

Defendant, after some initial reluctance, agreed to be interviewed by the police later that day. He denied sexually assaulting T.P. or L.P. Instead, his version was that, while clad in boxer shorts and a tee shirt, he had looked in on the girls during the middle of the night, discovered that T.P. was falling off the bed, and had innocuously pushed T.P.'s backside and posterior to get her back onto the bed while she slept.

Subsequently, defendant was indicted for sexually assaulting both T.P. and L.P., and for other related offenses. Eventually, the charges of sexual assault upon L.P. were dismissed at the prosecutor's request.

At the trial in January 2003, T.P., who was by that time ten years of age, testified and repeated her accusations against defendant. The State also presented the corroborating testimony of L.P., who was then age eight. The State further called R.P., who explained the circumstances that led to her daughters sleeping in defendant's apartment unit and also recounted what she had observed about her daughters and heard them say the following morning. Additionally, the State called Mary Margaret McKinley, the police detective who had conducted the videotaped interviews of the two sisters, and Detective Rafael Garcia, who had responded to the crime scene and who subsequently took defendant's statement following the recitation of Miranda warnings. Further, the State put on M.G., who acknowledged that the sisters had gone to bed in C.G's bedroom, but denied ever seeing defendant enter that bedroom during the course of the night.

Defendant did not testify, nor did he call any witnesses. His attorney's theme in summation was that defendant's contact with T.P. in the midst of the night was innocuous and non-sexual, and that T.P. and L.P. had spun an exaggerated tale. Defense counsel particularly highlighted various alleged inconsistencies in the girls' narratives. He characterized the State's case and its witnesses' testimony as a "bucket of contradictions."

Following the court's charge, the jury deliberated for a day and a half. It returned guilty verdicts on the counts of sexual assault of T.P., endangering the welfare of T.P., and lewdness as to L.P. arising out of defendant's improper touching of T.P. The jury acquitted defendant of lewdness as to T.P., endangering the welfare of L.P. and a second lewdness count as to L.P.

The court thereafter denied defendant's motion for a new trial, and imposed its sentence upon defendant in June 2003. This appeal ensued.

Defendant raises the following arguments:

POINT I

DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONSITUTION, AMEND. VI.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR STIPULATING TO A STATEMENT IN WHICH THE VICTIM L.P. STATED THAT DEFENDANT'S 9 YEAR OLD DAUGHTER INDICATED THAT HE HAD SEXUALLY ASSAULTED HER ON PRIOR OCCASIONS.

B. HAVING STIPULATED TO SUCH TESTIMONY, TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A LIMITING INSTRUCTION THAT THE STATEMENT OF DEFENDANT'S 9-YEAR-OLD DAUGHTER INDICATING THAT HE HAD SEXUALLY ASSAULTED HER ON PRIOR OCCASIONS COULD BE USED FOR CREDIBILITY AND NOT TO INFER DEFENDANT WAS PRE-DISPOSED TO COMMIT SUCH OFFENSES.

C. HAVING AGREED TO THE ADMISSION OF DEFENDANT'S "CONFESSION," COUNSEL FAILED TO MOVE TO DELETE REFERENCE TO DEFENDANT'S INITIAL FAILURE TO SPEAK TO THE INVESTIGATING DETECTIVE CAUSING THE COURT TO SUA SPONTE CHARGE THE JURY THAT THEY COULD DRAW NO ADVERSE [INFERENCE] REGARDING SAME.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO THE COURT'S "HAMPTON" CHARGE WHICH HAD THE EFFECT OF INSTRUCTING THE JURY TO DISREGARD DEFENDANT'S ENTIRE EXCULPATORY STATEMENT IF THEY FOUND ANY PART OF THE STATEMENT NOT TO BE CREDIBLE.

POINT II

DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT COMMITTED ERRORS DEPRIVING HIM OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10).

A. THE TRIAL COURT'S CHARGE TO THE JURY THAT THEY MUST DISREGARD HIS ENTIRE EXCULPATORY STATEMENT TO POLICE IF THEY DISBELIEVED ANY PART OF THE STATEMENT IS REVERSIBLE ERROR.

B. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENTS OF [T.P] AS SUBSTANTIVE EVIDENCE AS "EXCITED UTTERANCES".

C. IF IT IS DETERMINED THAT IT WAS NOT INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL TO SUBMIT EVIDENCE THAT CLAIMS WERE MADE (BEFORE THE JURY) THAT DEFENDANT REGULARLY SEXUALLY ASSUALTED HIS DAUGHTER, THE COURT'S CHARGE THAT THIS EVIDENCE COULD ONLY BE USED FOR "CREDIBILITY" PURPOSES WAS INADEQUATE AND CONFUSING THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL.

D. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

E. THE TRIAL COURT IMPROPERLY ALLOWED A "DE FACTO" TIME LIMITATION ON DELIBERATIONS IN KNOWING THAT A JUROR NEEDED TO LEAVE AND THEN RETURNED A VERDICT FIVE MINUTES BEFORE THE JUROR NEEDED TO LEAVE.

POINT III

DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT COMMITTED PLAIN ERROR IN QUALIFYING THE JUVINILE WITNESSES AS COMPETENT TO TESTIFY IN THE PRESENCE OF THE JURY, THEREBY PLACING THE JUDICIAL IMPRIMATUR ON SUCH TESTIMONY, DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10) (NOT RAISED BELOW).

II.

We first briefly address defendant's claims of ineffective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Defendant argues that his trial attorney was constitutionally ineffective in numerous respects. In particular, he criticizes his counsel for stipulating to the admission of a statement by C.G. to L.P. alleging that he had sexually assaulted C.G. on prior occasions, and for failing to request an appropriate limiting instruction regarding the use of that statement. Defendant also complains that his counsel failed to have the court redact from his police statement a reference to his initial failure to speak to the investigating detective. Lastly, defendant argues that it was ineffective for his attorney to fail to object to the court's jury instruction under State v. Hampton, 61 N.J. 250 (1972), concerning the use of defendant's statement to the police.

The issues of ineffectiveness that defendant raises are not suited to resolution on the present record, as we discern that the complained-of actions and inactions of his attorney could have been dictated by considerations of "trial strategy." For instance, as we further explicate in Part III(C) of this opinion, trial counsel may well have stipulated to the admission of C.G.'s alleged statement to L.P. as a means of buttressing the overall defense theme that the girls' claims of his sexual misconduct were contrived or wildly exaggerated. Likewise, trial counsel may have had strategic motivations in not seeking limiting instructions and assenting to facets of the jury charge. Although we will necessarily address several of these evidentiary points substantively, infra, under the doctrine of plain error, we shall refrain from resolving defendant's ineffective-assistance claims here on direct appeal. Instead, we shall reserve such claims for a future potential application for post-conviction relief (PCR), where the record may be expanded with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

III.

Having deferred appellant's claims of ineffective assistance of counsel to future PCR proceedings, we now address his substantive grounds to set aside his conviction, seriatim.

A.

Defendant first contends that the trial judge improperly charged the jury that it must disregard his statement to the police in its entirety if it found that any portion of that statement was not credible. This instruction, which was not objected to by trial counsel, tracks the Court's opinion in State v. Hampton, supra, which held that when a judge decides to admit a statement given by a defendant after receiving Miranda warnings, "the jury shall be instructed that they should decide whether in view of all the . . . circumstances the defendant's [statement] is true." State v. Hampton, supra, 61 N.J. at 272. "If they find that it is not true, then they must treat it as inadmissible and disregard it for purposes of discharging their function as fact finders on the ultimate issue of guilt or innocence." Ibid.

The presumptively-obligatory nature of a Hampton charge is underscored by N.J.R.E. 104(c), which prescribes that if a judge determines that a criminal defendant's out-of-court statement is admissible, the jury "shall be instructed to disregard the statement if it finds that it is not credible[.]" (emphasis added). In State v. Jordan, 147 N.J. 409, 425 (1997), our Supreme Court construed this language in N.J.R.E. 104 to mandate a Hampton instruction, whether or not one is requested by counsel, "[b]ecause of the critical role that a defendant's oral and written statement may have [.]" As the Court specifically, and unambiguously, directed in Jordan:

Indeed, unless a defendant specifically requests that the Hampton charge not be given, and the trial court satisfies itself with written findings that such reasons have merit, a Hampton charge should always be given.

[Ibid. (emphasis added).]

Notwithstanding this clear directive from the Supreme Court and the absence of any objection by his trial counsel, defendant argues that it was reversible error for the trial judge to deliver the Hampton charge here. He contends that his statement to the police about his conduct in the girls' bedroom had exculpatory features, i.e., that he was simply moving T.P. safely back onto her bed, and that he was prejudiced by a jury charge that instructed the jury to disregard his entire police statement if they did not believe any portion of it. Defendant argues that the mandate for a Hampton charge is confined to "confessions," and that it is plain error to issue such a charge where the defendant's statement has exculpatory aspects.

Defendant's argument is unpersuasive for two reasons. First, his statement to the police was not completely exculpatory in nature. Most significantly, the statement was quite incriminating in several respects, insofar as it acknowledges that defendant did enter the girls' bedroom in the middle of the night, that he was wearing boxer shorts, and that he in fact touched T.P., albeit in an allegedly non-sexual manner. Had the jury disbelieved defendant's specific assertion that his nocturnal touching of T.P. was benign, the remainder of his police statement would buttress the State's theory of the case. Hence, the Hampton charge protected defendant from the jury drawing such inculpatory inferences from the balance of his police statement.

Second, the Supreme Court has not confined the necessity of a Hampton charge to "confessions." As the Court instructed in Jordan, supra:

Whether requested or not, whenever defendant's oral or written statements, admissions or confessions are introduced in evidence the Hampton instruction ... should be given.

[Jordan, supra, 147 N.J. at 425. (emphasis added).]

In sum, there was no plain error whatsoever in the trial court's issuance of a Hampton charge, and defendant has failed in his burden to demonstrate such error. See R. 2:10-2; State v. Morton, 155 N.J. 383, 421 (1998).

B.

Next, defendant argues that the trial court improperly admitted, over his counsel's objection, T.P.'s out-of-court statements to her mother on the morning after her bedroom encounter with him. In particular, he contests the admission of T.P.'s statements to R.P. that defendant had acted "fresh" by coming into the bedroom naked, pulling down her shorts, touching her body all over and asking her to open her legs.

The trial court admitted these statements after conducting an evidentiary hearing under N.J.R.E. 104 outside of the jury's presence. R.P. testified at that hearing that when she arrived on the morning of April 4 to pick up her daughters, they were acting "strangely," and had appeared "nervous and scared," although they were not crying. R.P. asked the girls, "What's wrong?," and T.P. responded by describing to her mother what defendant had done in the bedroom. The trial court ruled that the circumstances fit the hearsay exception for excited utterances under N.J.R.E. 803(c)(2). As part of his analysis, the trial judge also invoked the uncodified doctrine of "fresh complaint," citing State v. Taylor, 226 N.J. Super. 441, 452-53 (App. Div. 1988), a case in which that doctrine permitted the admission of a child's reports of a sexual assault, first her aunt and then to her mother who picked up the child the morning after she had spent the night with the aunt at her grandmother's home.

We agree with defendant, in light of supervening case law from our Supreme Court that has narrowed the contours of the excited utterance doctrine, that T.P.'s statements do not qualify under the hearsay exceptions for excited utterances because of the seven-to-ten-hour time lapse between the described events in the bedroom and T.P.'s discussion with her mother. Even crediting the trial judge's finding that T.P., when she was greeted by her mother in the morning, remained "under the stress of excitement" caused by defendant's behavior during the night, we are not persuaded that T.P. lacked "an opportunity to fabricate" in the ensuing time interval. See N.J.R.E. 803(c)(2).

Nevertheless, we perceive no reversible error in the receipt into evidence of T.P.'s morning assertions to her mother. First, we note the fresh-complaint rule clearly applies here. That doctrine allows, among other things, the State to introduce a sexual victim's out-of-court revelation of such conduct to a confidante shortly after the conduct occurs. The fresh-complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. State v. Hill, 121 N.J. 150, 163 (1990).

All of the requisite elements of the fresh-complaint rule are satisfied by the record before us. T.P.'s statements to her mother were essentially spontaneous and not the product of coercive interrogation. See Hill, supra, 121 N.J. at 167. The statements were made to a natural confidante, T.P's own mother. State v. Balles, 47 N.J. 331, 338-399 (1966), cert. denied, 388 U.S. 461 (1967). The statements were made within "a reasonable time" after the sexual act occurred, particularly in view of the time allowances that courts generally afford to minor victims because of their "special vulnerability" to being "cajoled and coerced into remaining silent by their abusers." State v. Bethune, 121 N.J. 137, 143 (1990). Further, as the trial judge specifically found, T.P.'s statements carried "an indicia of reliability."

To be sure, we recognize that the fresh-complaint doctrine only permits the use of the out-of-court statement to negate an inference that the victim was silent, and does not allow the substantive use of the statement for its truth. Id. at 147-48. Nonetheless, we perceive no reversible error in the present matter arising out of the trial judge's decision to admit T.P.'s out-of-court statements to her mother substantively, because T.P. reiterated the gist of those same matters when she testified for the State and was extensively cross-examined at trial. At best, the impact of the court's receipt of T.P.'s prior hearsay was merely cumulative, and did not create undue prejudice when viewed properly in the context of the other evidence of defendant's guilt. See N.J.R.E. 403 (allowing receipt of cumulative or prejudicial evidence so long as its admission is not "substantially outweighed" by countervailing factors). The trial court's error here in omitting a fresh-complaint charge was most assuredly harmless. R. 2:10-2, State v. Spruell, 121 N.J. 32, 42 (1990).

C.

Defense counsel stipulated at trial to the admission of certain contents of a report of the Division of Youth and Family Services (DYFS) case worker who had investigated this matter. In particular, counsel stipulated, as reflected in the DYFS report, that on the morning of the subject incident, C.G., the nine-year-old daughter of defendant's girlfriend M.G., told T.P. and L.P. that defendant had sexually assaulted her several times in the past. In connection with this stipulation, the trial judge instructed the jury that they were to consider it solely "for the purposes of deciding the credibility of the various witnesses in the case."

C.G. did not testify at trial. However, defense counsel did ask the victim's mother, R.P., on cross examination if she had requested that the DYFS worker question C.G. about whether defendant had molested C.G. in the past. This cross examination was the first time that any allegations were raised before the jury about whether defendant had previously engaged in inappropriate sexual touching. Thus, the defense, not the State, first injected these matters in the trial.

Had defense counsel not stipulated to the admission of C.G.'s supposed accusations, we perceive that there would have been significant questions of their admissibility, both under the hearsay doctrine, see N.J.R.E. 802, and under the evidence restrictions on character proof, see N.J.R.E. 404. Defense counsel chose to forego those objections and use C.G.'s statements, in essence, as a sword to attack the overall credibility of the girls, and to support his theory that defendant was the object of adolescent exaggeration and fabrication. The stipulation, and the corresponding "use-only-for-credibility" limiting instruction pursuant to N.J.R.E. 105 brokered by counsel, both played into that theme. Indeed, in summations, defense counsel highlighted the fact that, before this incident, C.G. had never alleged that defendant had behaved wrongfully. Counsel used that circumstance to illustrate his point that all three girls had let their imaginations run away that night in defendant's apartment.

Defendant, while preserving his claim of ineffective assistance on the stipulation, argues that the consensual admission of these proofs fundamentally deprived him of a fair trial. We disagree. Although C.G.'s accusations surely presented a risk that the jury would consider defendant a pathological child molester, they also offered the potential for supporting defendant's theory that the girls' claims of his sexual wrongdoing were all concocted. Indeed, the defense strategy appeared to succeed to some degree, given the jury's acquittal of defendant on several of the charged offenses. We discern no plain error in the court accepting the stipulation and issuing the limiting instruction. See R. 2:10-2.

D.

We have fully considered the balance of defendant's arguments set forth in Points II(D), II(E) and III of his brief and conclude that they lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2); State v. King, 372 N.J. Super. 227, 231 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant does not challenge in this appeal the voluntary nature of his statement or its admission to the jury.

See State v. Branch, 182 N.J. 338 (2005)(time lapse of ten minutes before police responded to a mother's call and conducted interviews of her seven-year-old children who had witnessed a burglary held sufficient to create an opportunity to fabricate); State v. Cotto, 182 N.J. 316, 330 (2005) (finding error in the admission of hearsay statements that witnesses to a robbery made to an investigating police officer some fifteen to twenty minutes after the assailants left their apartment).

The defense's opportunity at trial to cross-examine T.P. eliminates any constitutional issues under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004).

In light of our conclusion, we need not consider whether the "tender years" hearsay exception of N.J.R.E. 803(c)(27), which the State does not rely upon in its brief, might have independently authorized the substantive admission of T.P.'s statements to her mother.

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A-0814-03T4

RECORD IMPOUNDED

July 19, 2006