STATE OF NEW JERSEY v. PEDRO VALERIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-05T44150-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO VALERIO,

Defendant-Appellant.

___________________________

 

Submitted April 28, 2008 Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1366.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Pedro Valerio, was convicted by a jury of four counts of first-degree aggravated sexual assault upon a helpless or incapacitated victim, N.J.S.A. 2C:14-2(a)(7) (counts one, two, four, and five), and three counts of third-degree aggravated criminal sexual contact with a helpless or incapacitated victim, N.J.S.A. 2C:14-3(a) (counts six through eight). Defendant appeals and we affirm, but remand for sentencing.

The trial judge imposed fourteen years imprisonment on each count of first-degree aggravated sexual assault, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Count eight was merged with count five. Defendant was sentenced to four years on counts six and seven and all sentences were run concurrently.

M.L., who was thirty-two at the time of the offense, came to live with her sister, Y.F., in 2001. Because of M.L.'s mental deficits, Y.F. attempted to enroll her in adult daycare programs. According to defendant's expert, M.L. was removed from the first program for "hyper-sexualized" behavior. She inappropriately hugged and kissed the director, and dressed in a provocative fashion. M.L. left a second program in January 2003, because she did not like it, and she agreed to stay home and keep house for Y.F. subject to certain conditions. M.L. was not permitted to open the door for anyone unless Y.F. was home, was not permitted to leave the house by herself, and was not to give information to anyone over the telephone. M.L. spent much of her time in her bedroom, which was decorated with children's toys, such as a Teletubby doll. She had cartoon characters on her bed linens. She watched videos and cartoons such as, "Tom and Jerry," "Dora the Explorer," "Batman and Robin," "Mickey Mouse," and "Spiderman" in addition to CSI and Spanish language soap operas.

Y.F. met defendant socially, and gave him her home phone number. On May 19, 2003, he called Y.F.'s home while she was at work, and spoke with M.L. According to M.L.'s trial testimony, M.L. told defendant that she was Y.F.'s sister. He asked her if she was pretty, and asked for the address to the apartment, which she gave to him, although she could not give him directions. Defendant asked M.L. to let him in after arriving at the apartment door, even though she told him she was not allowed. Once in the apartment, defendant grabbed M.L. by the shoulders, hugged her, and kissed her on the mouth, which she did not like. At first, defendant told M.L. to sit on the couch, and then asked her where her bedroom was located. M.L. went to the bathroom, and when she came out, defendant was in her bedroom. He had drawn the curtains on the windows. He took his penis out of his pants and told M.L. to "put [it] in [her] mouth." Although she did not want to do it, M.L. stated that defendant made her. He removed her clothing and proceeded to have sexual intercourse with her, and kissed and fondled her body. M.L. told defendant that he was hurting her, but he responded by saying, "no, it's not going to hurt you." When defendant was finished, M.L. dressed. While defendant was out of the room, Y.F. called to check on M.L., who did not tell her what had occurred. Defendant asked M.L. who had called upon his return, and M.L. told him it had been her sister. He then asked for Y.F.'s number at work, which M.L. gave him, and he called Y.F. while he was still in the apartment. After talking to Y.F., he asked M.L. to make him some coffee, which she did. He then left, saying that he would return the following day because he was off from work. He also told M.L. that he loved her, and told her not to tell anyone what had happened, including Y.F. After leaving, he called M.L. several times, and she told him not to bother her.

Y.F. testified that later that day, she received a call at work from defendant, who asked Y.F. if there was anything wrong with her sister. She responded that her sister had a "mental problem." During the conversation, they agreed that they would talk again after 5:30 p.m. when Y.F. would be home.

Upon returning home, Y.F. found M.L. in her bedroom, crying and shaking. M.L. told Y.F. that defendant had been at the apartment and described the events of the afternoon, at which point Y.F. called the police. M.L. was taken to the emergency room, where she was examined.

The following day, defendant called the apartment. He seemed surprised that Y.F. was home, and asked if he could come over. Y.F. agreed and called police, who were at the apartment waiting for him when he arrived.

At the Prosecutor's Office, defendant waived his Miranda rights and gave a statement. Although he admitted having sex with M.L., he denied any knowledge of any mental impairment.

At trial, the State's expert, Dr. Richard Coco, a forensic psychologist, testified that M.L.'s Wechsler I.Q. test score was 88, just below normal, based on the Spanish standardization of the test. Coco further testified that the Spanish language version of the test gives inflated scores to Puerto Ricans as opposed to persons from other Spanish-speaking countries. Coco said that M.L.'s verbal I.Q., based on abstract reasoning ability, was 79, a "relatively low score," that indicated "borderline intellectual functioning." According to Coco, M.L. did much better with the non-verbal portions of the test, and scored in the average range in those sections.

Coco said M.L. scored in the bottom one-tenth percentile in the Vineland Adaptive Behavioral Scales test administered to Y.F., meaning that 99.9% of the population had higher scores than M.L. The Vineland test is given to caregivers of mentally-challenged patients in order to determine the basic functioning level of the patient.

Coco opined, based on his testing, interviews, and reviews of M.L.'s records, that she would not be able to understand the subtleties of a person asking her questions such as where her bedroom was, or that it was a reference to sexual activities. He estimated her mental age to be between six and twelve years, and diagnosed her as suffering from mild mental retardation.

Coco testified that M.L. would be able to give her consent if "she was going to be engaging in . . . sexual activity [with] . . . her peer cognitively and socially," and if "manipulation and duress would not be part of [the] formula." He further opined that even if she invited a man home who did not frighten her, she "would not be able to consent in an informed manner" to any sexual activity. Coco also said "that a person of normal and reasonable intelligence and understanding would know that [M.L. is] a person of some deficit and would have to treat her in that way," based upon observations such as her body posture, eye contact, and problems articulating ideas.

Defendant also produced an expert, Dr. Ernesto Perdomo. Perdomo testified that he administered non-verbal intelligence tests to M.L., reviewed her adult daycare records, medical records, and conducted an interview. He placed her functioning in the borderline range, in the bottom fourth or fifth percent of the population, and said that her cognitive abilities were "a little better" than those of a mentally retarded person. He found her drawings to be similar to those produced by an eight-year-old.

Nonetheless, it was his view that M.L.'s impediments stemmed from a psychiatric disorder that had responded well to medication in the past, and not from any intellectual impairment. Perdomo also discussed a prior diagnosis M.L. had received in September 2002, of chronic, undifferentiated schizophrenia. It was his view that M.L. not only understood the nature of sexual activity, but would be able to consent to it.

On appeal, defendant raises the following points:

POINT I

BECAUSE THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE ALLEGED VICTIM'S MENTAL DEFECT RENDERED HER INCAPABLE OF CONSENTING TO THE SEXUAL ACTIVITY IN WHICH SHE AND THE DEFENDANT ENGAGED, THE JUDGE SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON ALL COUNTS. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW)

POINT II

N.J.S.A. 2C:14-2(7), AS APPLIED IN THIS CASE, VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW)

POINT III

THE PROSECUTOR'S REPEATED MISCONDUCT DURING SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST., ART. I, 1, 9, AND 10. (NOT RAISED BELOW)

A. VOUCHING FOR THE STATE'S WITNESS

B. DENIGRATING THE DEFENSE'S EXPERT

POINT IV

BECAUSE THE TRIAL COURT ENGAGED IN IMPERMISSIBLE DOUBLE-COUNTING AND FAILED TO GIVE ADEQUATE WEIGHT TO THE THIRTY-FIVE-YEAR OLD DEFENDANT'S LACK OF ANY CRIMINAL HISTORY, THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND MUST BE REDUCED.

I.

Defendant's first three points are raised for the first time on appeal, and are therefore subject to the plain error rule. See State v. Josephs, 174 N.J. 44, 98 (2002). The purported errors or omissions must therefore be "clearly capable of producing an unjust result" in order to require a reversal. R. 2:10-2. "The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Accordingly, but for defendant's sentencing argument, the purported trial errors will be reviewed in light of the plain error standard.

A.

Defendant asserts, first, that the State did not establish beyond a reasonable doubt that M.L.'s mental condition rendered her incapable of consent. The State bears the burden of proving beyond a reasonable doubt each and every element of the offenses charged. N.J.S.A. 2C:1-13(a). This includes the burden of proving that M.L. was "mentally defective," a "condition in which a person suffers from a mental disease or defect which renders that person . . . permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent." N.J.S.A. 2C:14-1(h).

Our Court has interpreted the statute to mean a person is mentally defective "if, at the time of the sexual activity, he or she is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to engage in such conduct with another." State v. Olivio, 123 N.J. 550, 553 (1991). That case concluded that the State need not prove a defendant had a specific intent in order to be found guilty of an offense under the statute, so long as defendant knew or had reason to know of the existence of the mental defect. Id. at 568-69. In other words, the mental defect simply has to be apparent to a reasonable person. Ibid.

In this case, the State's expert opined that M.L. had only borderline cognitive functioning. Although the experts did not agree that she was mildly mentally retarded, they did agree that she was childlike and suffered from significant personality characteristics that set her apart from the majority of the population. Her lifestyle, which included living with a family member virtually isolated from others, bears out their conclusion. A review of her testimony is convincing that her limitations would have been apparent to a reasonable person based on the language that she used during the trial, and her limited responses to questions posed. M.L.'s demeanor on the stand, the expert testimony, and M.L.'s lifestyle, constituted sufficient proofs from which a reasonable jury could conclude that she was incapable of consent. A reasonable jury could readily conclude that defendant either knew, or should have known, that M.L. suffered from a significant mental defect within the meaning of the law. It is the sole province of the jury to assess the credibility of witnesses, and they chose to believe the State's version, not only as to the events of that day, but also as to the nature of M.L.'s intellectual impairments. Therefore, contrary to defendant's contention, it was not error for the court to have failed to have entered a sua sponte judgment of acquittal.

B.

Defendant's second argument on appeal is that the language of N.J.S.A. 2C:14-2(a)(7) is unconstitutional as applied to him, and violated his right to due process and a fair trial. N.J.S.A. 2C:14-2(a)(7) states that an aggravated sexual assault is a crime of the first-degree where "[t]he victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated." In order to establish that a statute is unconstitutionally vague as applied, a party must show that "the law does not with sufficient clarity prohibit the conduct against which it sought to be enforced." State v. Cameron, 100 N.J. 586, 593 (1985).

Defendant's challenge ignores the concepts articulated in Olivio. "Defendant can avoid liability only if neither the subjective nor the objective element is proved. Specific intent is not required." Olivio, supra, 123 N.J. at 568. As the Olivio court further stated, the difference between someone with a mental defect who is incapable of consenting to sex, and someone with a mental defect capable of giving consent is that only those who have the capacity to refuse are capable of consent. Id. at 567.

In this case, M.L. said that she did not think that she could refuse, words spoken by a victim unable to give directions to her home, although she knew the address. M.L., who lived in a bedroom containing toys, watched cartoons, and slept on sheets imprinted with cartoon characters upon which she was sexually assaulted, was not an individual who knew she could refuse. M.L., who was not allowed to cook other than to make coffee in a coffee pot, was diagnosed by both experts as having at best, borderline intellectual capacity, was not a person who could consent to sexual relationships with defendant.

It is certainly true, as defendant argues in his brief, that the degree of impairment in reasoning ability varies widely among those who are mentally defective. But as Olivio states, the fundamental ability to refuse defines the ability to give consent, and although the full extent of M.L.'s limits were not clear, it was clear that they were significant. Defendant was aware of them to the extent that he asked Y.F. if "anything [was] wrong with [her] sister." The statute clearly prohibited the conduct defendant engaged in, and given M.L.'s characteristics, he knew or should have known of her mental defect.

C.

Defense counsel said the following in summation:

In assessing [M.L.'s] mental abilities, I'd ask you to consider the fact that when she was asked on the witness stand last week what happened, as far as what happened in her apartment, she testified that he came in, that he made her open the door, that he made her go in the bedroom, that he did certain things to her, but she didn't mention the fact -- and when she was asked, she didn't recall the fact -- that she sat in [defendant's] lap as soon as he came into her apartment. I asked her that twice last week and both times, she didn't have any recollection of that ever happening or having told that to the police on a prior occasion, as you know that she did from the testimony here this morning.

And I would submit that that tells you something about her intellectual capabilities because that very fact changes the complexion of what happened in that apartment and she knows it. She knows that if she says, I let him [in] and I sat in his lap, then we started kissing, that suggests that she extended an invitation to him that he took her up on. So she denies having said that. She denies recalling ever having said that. And I submit to you that that shows that she's capable of thinking things through and removing facts that don't fit with what she would like to have you believe.

The prosecutor responded:

So the next question . . . is, well, . . . should the defendant have known it? That's really the next question. Now let me comment a little bit about [M.L.'s] testimony. I suppose that [defense counsel] and I saw a different woman up there because he characterizes her much differently than the way I'm going to suggest to you.

. . . .

Let me share with you my observations. Not only, Ladies and Gentlemen, the moment she walked into this courtroom did she have obvious deficits, but as soon as she opened her mouth, she had deficits. This woman had a speech impediment. I'm not suggesting that it's a diagnosed speech impediment, but her ability to vocalize, her ability to enunciate terms was clearly impaired. When asked very simple questions, there was a delay. Oftentimes, a long delay in her response. When she responded, oftentimes, it was very tortured. It was interrupted. It was choppy. She was incapable of giving a lucid, free-flowing response to any question asked of her.

So when you assess whether the defendant knew or should have know[n], Ladies and Gentlemen, he didn't need much time at all to make these obvious observations. Did it take you 24 minutes?

All that is needed [is] a little attention, a little perception to be able to see this woman's obvious deficits. Her vocabulary was substantially limited. I asked her if she knew what a condom was. She didn't know.

We talked about the fact that she struggled with the word, "directions." I asked her, [M.L.], can you . . . tell us, what do you call that area down there? And remember what she said, it's my little thing. It's my thing. It's the hole. She couldn't even tell me what that is called and we are asking her to have the ability to consent to somebody putting a penis in there?

And what was most significant -- and again, I go back to my observation before. Almost somewhat disturbing was her physical mannerisms and her posture. Talk about social judgment. When I asked her to step down from the witness stand to show us what happened, one would think that there is a certain etiquette, a certain ability to know how to communicate in an appealing way. And do you remember her posture? She was bent down and she was like in here. In here. And she almost . . . was looking right at her vagina to explain it, almost as . . . a child would. . . .

. . . .

This woman doesn't have the ability to formulate lies. She doesn't have the ability to try to pull the wool over the eyes of 14 jurors. She doesn't have the ability to remember in her head, well, what did I previously say that was a lie and how can I now keep it straight? She doesn't have the ability to formulate those kinds of ulterior motives. She's probably, Ladies and Gentlemen, better than most witnesses that you will ever see because of her limitations. She only knows one thing. She knows the truth and she shared that truth with you when she testified at court.

To determine whether prosecutorial misconduct during summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making the assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed 2d 89 (2001). The State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (alterations in original) (quoting Bucanis, supra, 26 N.J. at 56).

No objection was made by either counsel to the comments made in closing by the other. Defendant now contends that the State improperly vouched for M.L., when the prosecutor said that she did not have the ability to formulate the lies because of her mental deficits. In context, however, the comments were merely references to the indicia the State was urging the jury to consider in assessing M.L.'s credibility, and were made in response to the defense characterizing M.L. as a person who was "capable of thinking things through and removing facts that don't fit with what she would like to have you believe."

Defendant also objects that in closing, the State "denigrated" the defense expert. It is undisputed that it is improper for a prosecutor to unfairly denigrate the defense. State v. Bauman, 298 N.J. Super. 176, 209 (App. Div.), certif. denied, 150 N.J. 25 (1997). On the subject of expert testimony, in summation, defense counsel said:

You heard the contrasting opinion of Dr. Coco. You heard what his credentials are. You heard that he's not a licensed psychologist or, at least, he only has a temporary license to practice psychology in the State of New Jersey. That he's not trained in the area of clinical psychology as Dr. Perdomo is. And he reached the conclusion -- in his opinion, [M.L.] is mildly mentally retarded. In Dr. Perdomo's opinion, she is borderline, meaning she's not mentally retarded. She's of below average intelligence, but she's not mentally retarded.

. . . .

Now Dr. Perdomo testified yesterday and the Prosecutor cross-examined him for a long time, and that's his right. He's entitled to ask him questions about his opinion. But I'll leave you with this, Ladies and Gentlemen. When he left the witness stand yesterday, he still had the same opinion that he had when he came in here. That [M.L.] was not mentally retarded and she was not [in]capable of consenting to sexual intercourse and she did understand the nature of sexual activities.

In response, the prosecutor said:

Let's start with Dr. Perdomo first. Dr. Perdomo was a very interesting witness. And I submit to you, Ladies and Gentlemen, the one observation I made . . . is that many of his answers were quite evasive. He was quite defensive. Right in the beginning when I started my cross-examination, I asked him a very simple question, and that was, Doctor, the purpose of your evaluation was to determine [M.L.'s] ability to consent to sexual intercourse with the defendant and he disputed that, and we kind of argued about it a little bit until I showed him his report that clearly says that in the first sentence of the report. And then he comes and he gives some kind of explanation about how he didn't even know who [M.L.] was at the time of the original examination?

. . . .

So [Perdomo] conducts these two non-verbal tests which he claims are more reliable than what Dr. Coco performed, which is fine. Let's assume that to be the case. His test[] results were significantly less than that of Dr. Coco. . . .

. . . .

. . . He told you repeatedly, her prior records are significant -- so significant.

. . . .

The records from Second Home Adult Medical Daycare Center gave [M.L.] a diagnosis of mental retardation in 2001. The records from the Second Home consistently gave her a diagnosis of mental retardation. I'm reading from Dr. Perdomo's report. Social Services from the Second Home Adult Medical Daycare Center dated May 25th, 2001 indicate that [M.L.] is a 32-year-old with the mind of a 12-year-old.

So it appears to me, Ladies and Gentlemen -- and I suggest to you -- that Dr. Perdomo is accepting those parts of the prior records he wants to accept and he's rejecting those that he wants to reject. He's rejecting those that don't fit in the party line, and you can't do that. You can't have it both ways.

Neither the prosecutor nor the defense attorney objected to the other's remarks. The prosecutor's comments did not denigrate the defense expert, but rather, offered a factual comparison between the two experts' testimony in the light most favorable to the State's case. They were not so egregious that defendant was deprived of a fair trial. The comments, although "vigorous and forceful," stayed within the bounds of propriety.

II.

In sentencing defendant, who had no prior criminal history, the judge found aggravating factors one, two, three, and nine. N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9). He found in mitigation factors seven and eleven. N.J.S.A. 2C:44-1(b)(7) and (11). In every instance, the sentencing judge imposed either the mid-point of the sentencing range or less than the mid-point. See State v. Natale (Natale II), 184 N.J. 458, 488 (2005).

The sentencing judge found aggravating factor one, that the offense was committed in an "especially heinous, cruel, or depraved manner" because defendant committed his crimes in the "sanctity" of M.L.'s home. That circumstance does not warrant the award of that factor.

The facts relied upon by the court in its conclusion that aggravating factor two was applicable, were the same as the State was required to prove in its case-in-chief, therefore, including that factor in the sentencing equation was impermissible double counting. See State v. Carey, 168 N.J. 413, 425 (2001); State v. Kromphold, 162 N.J. 345, 353 (2000). The unique vulnerability of the victim referenced by the judge in sentencing was, in fact, one of the elements which the State was required to prove in order to convict defendant, namely, that the victim suffered from a "mental defect."

The judge also found aggravating factor three, the risk that defendant would re-offend, because of his seeming indifference to the wrongfulness of his conduct and the victimization of M.L. Where a defendant fails to recognize the wrongfulness of his conduct, and there is no empathy for the victim, there is always some potential for recidivism. Carey, supra, 168 N.J. at 427. The award of this factor was not error.

Defendant also objects that the court did not consider mitigating factor twelve, defendant's cooperation with the authorities. N.J.S.A. 2C:44-1(b)(12). That factor was inapplicable, as the cooperation referred to in the statute refers to other persons besides defendant. See State v. Vasquez, 129 N.J. 189, 206-07 (1992).

Judges are granted great deference in sentencing. So long as they exercise their discretion reasonably, and comply with the principles of sentencing, they will not be second-guessed. State v. Roth, 95 N.J. 334, 365 (1984). Although the sentence itself is reasonable, the analysis employed to reach that end result did not comply with sentencing principles. Accordingly, although we agree that the mitigating factors were properly considered, we remand for purposes of re-sentencing because of the aggravating factors.

Affirmed, but remanded for resentencing.

Although the record is not impounded, due to the sexual nature of the crimes involved, the victim and her sister will be referred to by their initials.

M.L. lived in Puerto Rico until 2001.

(continued)

(continued)

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A-4150-05T4

July 14, 2008