STATE OF NEW JERSEY v. JOSE C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2146-04T42146-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE C.,

Defendant-Appellant.

___________________________________________________

 

Submitted October 18, 2006 - Decided November 20, 2006

Before Judges Stern and Collester.

On appeal from the Superior Court of New

Jersey, Law Division, Sussex County,

Indictment No. 02-06-0252.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Robert Seelenfreund, Assistant

Deputy Public Defender, of counsel and on the

brief).

David J. Weaver, Sussex County Prosecutor, attorney

for respondent (Gregory R. Mueller, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted by jury of sexual assault of his wife, which the jury found to be a "violent crime" under pre-2001 No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced to ten years imprisonment with 85% to be served before parole eligibility.

Amanda O., defendant's wife, testified at the trial. She stated that she and defendant were no longer intimate when at about 12:30 a.m. on October 2, 2000 she refused to sleep in the bedroom. According to Amanda:

A Jose returned back to the bedroom. To my present knowledge. And about 15 minutes later, Jose came back out, stood in the doorway of the kitchen, the living room were together. Stood in the doorway of the living room. And I was on the couch. And asked me again if I would return to bed with him. And I said no.

Q What were you wearing that evening:

A I was wearing gray sweatpants, a sweatshirt, underwear and socks. And I was -- I had a blanket.

Q I'm sorry?

A I was covered with a blanket.

Q On the couch?

A And, the times that your husband, your then husband, Mr. Mr. [C.], came out to speak with you, what was he wearing?

A He was wearing underwear.

Q Okay. Again now so he came out again, this is, I guess, a second time, to ask you to come to the bedroom. Is that correct?

A Yes.

Q And, what happened after that?

A Jose just stood in the doorway. As I looked at him I asked him what he was doing. I saw he was in the doorway in his underwear. There was a look on his face that I have never seen before. And, I started to panic. And I asked him to -- again what he was doing. Within seconds after that, he flew over to the couch and he said, um, um, you're my wife, and, um, I want to have sex with you. And, I said, no. Um, we've discussed this, please don't do this. And with this, Jose, Jose was pulling down my pants. Ripped my underwear. And proceeded to force himself on me. I was laying on the -- on my back on the couch. He held my hands down.

After he got my pants off and said that I was his wife and he could do what he wanted.

Q Okay. And now with regards to his pulling your pants off, what were you doing while this was going on?

A While he was pulling my pants off with my underwear, I was saying, no, please, stop. Please, get off of me. What are you doing? I said, no. I don't want to have sex.

And at that point, I -- I just started like I was in hysterical crying. Please get off of me.

I was trying to hit him. I was trying to forcefully get him off of me and he wasn't getting off. And he said, yeah, he had every right to do this because I was his wife.

. . . .

Q Okay. And, what did Mr. [C.] -- while he was holding you down, you said he forced himself on you. What do you mean by that?

A He took off his underwear and he started forcefully having sex with me. As I'm saying no; as I'm saying, please, get off of me; and at this point he had both my arms, holding both my arms down, and he wouldn't get off.

Q Okay. And, by having sex with you, what, what did he actually do?

A He actually continued until he ejaculated.

Q Okay. And, I'm sorry. Where was his penis?

A His penis was in, inserted in me. In my vagina.

Q Okay. Now you said that you were trying to struggle to get him off, correct?

A Yes.

Thereafter, the following was developed by Amanda:

Q Did there come a time when he stopped?

A Yes. He did stop. Due to my screaming and yelling and crying, trying to get him off of me, my two year old daughter at the time came out of her bedroom screaming and yelling "Mommy". She came out to the living room. And was backed up against the wall farthest from us. Jose would not let me get up to get her. I kept saying, you need to stop. Samantha's in the room. Please let me get her. Please let me attend to her. He would not stop. Finally he stopped. He wouldn't let me got to her. He got up. Picked up Samantha, brought her down the hallway. And I had it was a ranch house at the time. Took her down the hallway, put her in her room. Put her back in bed and shut the door.

While he was putting Samantha back in her room, I, in turn, grabbed my sweatpants, got them on, and got as far as the kitchen.

At this point I was in shock. I was in panic. I was beside myself.

And as I got to the kitchen, I saw Jose coming back down the hallway. And [to] protect myself, I went down to the floor in a ball.

Q Okay.

A And I said, please, stop, Jose. And, with this he -- he dragged me back to the couch. And finished what he was doing.

Q Okay now, by dragging you back to the couch, did you do anything to try to stop him?"

A Yes, I -- I was kicking, screaming, yelling, no. Please, don't do this to me. Please, stop. Stop. Stop. Stop.

Q Okay. And he brought you back to the couch?

A He brought me back to the couch. Ripped off my sweatpants. And continued at this point. I knew he wasn't going to stop. He wasn't going to respect what I was saying. And, I was numb at that point.

According to defendant's friend, John Wallace, defendant came to live with Wallace and his family after the event. Wallace testified that defendant admitted to him about four days after moving in that, on one occasion, during a two or three month period when he and his wife had no "relationship," after observing his wife masturbating, he "tied her up and . . . raped her." Defendant also told Wallace that their daughter came on the scene, and after he put her to bed, defendant "went back out and raped [her] again."

Detective Brian Long of the State Police questioned defendant on October 2, 2001. After receiving Miranda warnings, defendant told Long that he "left [his] wife because [he] raped" her.

Sussex County Detective Ingrid DeLisa testified that Amanda reported the crime on September 21, 2001. DeLisa was with Detective Long on October 2, 2001 when defendant signed the Miranda card and waived his rights, after which the following oral statement was developed:

A We began talking to him about what had occurred with Amanda on the night in question. He stated that -- initially he had stated that -- he was vague, giving -- vague type-answers. He stated that Amanda was on the couch in their house. That she was masturbating. It upset him because, she didn't love him. And if she wanted to do that, she should do that with him. He said that that bothered him. And he -- he left the house. Later the next morning. And that was when he had left the family residence.

Q Okay. Did he indicate whether they were still married at this time?

A Yes.

Q And, what -- I'm sorry. At the time you spoke with him --

A No, they weren't married any longer.

Q Okay. So prior to your speaking with him, they were already divorced?

A They weren't divorced yet.

Q Now, did you question him about his leaving?

A Yes. We -- we both thought it was kind of strange that he left just because she was masturbating on the couch.

Q Okay, and, during your discussions with him, did his -- did he tell you anything different?

A Yes. He was very calm when he spoke to us. When we pressed him further about that, his demeanor changed. He became angry. He -- and he said[:] You want the truth, I'll tell you the truth, I raped my wife.

Q And did he say when about this occurred?

A He said that he wasn't one hundred percent sure on the date. It was sometime around the end of September, he believed.

Q Was it the last night he stayed with her?

A Yes.

Q And again, he indicated he had raped his wife?

A That's correct.

Defendant did not testify at the trial. In summation he emphasized that his wife "waited a year" to report the matter and attacked the witnesses' credibility, in part, by asserting that defendant's wife "seemed pretty prepped" after telling the police something "different." Defendant also reminded the jury that Amanda had no scratches or bruises after the event when she went for medical assistance, and suggested that the claim was fabricated in light of defendant's relationship with another woman and the pending divorce proceedings. Defendant further asserted that Detective Long "need[ed]" a "confession" because there was "no corroborative evidence," and Detective DeLisa merely "corroborated" the testimony of her co-worker. Finally, defendant suggested that Wallace, in his testimony, tried to help Amanda, his "better friend," and that Wallace's story was not consistent with Amanda's.

On this appeal defendant argues:

POINT I THE TRIAL COURT'S FAILURE TO INSTRUCT THE

JURY ON HE ISSUE OF HOW TO EVALUATE

SEVERAL OF THE DEFENDANT'S ORAL STATEMENTS

DENIED THE DEFENDANT HIS CONSTITUTIONAL

RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF

LAW. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND

10). (Not Raised Below)

POINT II THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE

VIOLATED BY THE COURT'S IMPOSITION OF A

SENTENCE GREATER THAN THE PRESUMPTIVE;

PURSUANT TO STATE V. NATALE, 184 N.J. 458

(2005), THE MATTER MUST BE REMANDED FOR

RESENTENCING.

Defendant complains that the trial judge's failure to give Hampton and Kociolek charges constituted plain error. See State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957). Indeed, absent defendant's request to the contrary, "a Hampton charge should always be given," Jordan, supra, 147 N.J. at 425, and "[l]ike the Hampton charge, the Kociolek charge should be given whether requested or not." Id. at 428. "The failure of a court to give a Hampton charge, however, is not reversible error per se," id. at 425, and the same is true of the failure to give a Kociolek charge. Id. at 428.

The statements to Amanda during the event were part of the res gestae, and the statement to Wallace before the complaint was filed was not a custodial statement to the police, and cannot be considered as such for Hampton purposes. See State v. Cuni, 303 N.J. Super. 584, 610 (App. Div.), aff'd on other grounds, 154 N.J. 584 (1999). In any event, defendant did not contest the wording of what he was reported to have said, but claimed he never made such admissions. See State v. Baldwin, 296 N.J. Super. 391, 401-02 (App. Div.), certif. denied, 149 N.J. 143 (1997). Thus, even with respect to the statement to the police, we find no plain error warranting reversal, given the totality of the testimony including the separate statements to Wallace. See State v. Jordan, supra, 147 N.J. at 428. See also State v. Chew, 150 N.J. 30, 82 (1997). There was also other evidence corroborating the wife's complaints. She went to a certified midwife nurse on November 1, 2000, "stated that she was raped," and complained of vaginal pain. She also told the nurse she was already in counseling. Based on the proofs presented, the summations and the jury charge as a whole, we find no plain error warranting reversal of the conviction.

In State v. Thomas, 188 N.J. 137, 152-54 (2006), the Supreme Court concluded that use of aggravating factors three, six and nine did not avoid the need for a remand under State v. Natale, 184 N.J. 458 (2005), and here the trial judge found aggravating factors one and three as well. The jury's NERA finding does not suffice as a basis for finding the aggravating factors.

The conviction is affirmed, but the matter is remanded for resentencing.

 

See definition of "violent crime" in N.J.S.A. 2C:43-7.2d.

(continued)

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A-2146-04T4

November 20, 2006