STATE OF NEW JERSEY v. R.J.C

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2775-08T42775-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.C.,

Defendant-Appellant.

_______________________________________

 

Argued April 28, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-05-0878.

Jill R. Cohen, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Cohen, on the brief).

J. Vincent Molitor, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).

PER CURIAM

By leave granted, defendant R.J.C. appeals from an order entered by the trial court on December 24, 2008, which denied his motion to dismiss an indictment charging him with the commission of certain sex offenses. For the reasons that follow, we affirm.

I.

An Atlantic County grand jury charged defendant with aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count two); endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three); aggravated sexual assault, N.J.S.A. 2C:14-2a (count four); sexual assault, N.J.S.A. 2C:14-2b (count five); and endangering the welfare of a child, N.J.S.A. 2C:24-4 (count six). Defendant's first trial resulted in a mistrial when the jury was unable to reach a unanimous verdict on any of the counts in the indictment.

At the second trial, the State presented evidence that, at the time of the alleged offenses, defendant had been residing with M.D. in a house in Pleasantville, New Jersey. M.D.'s daughters, W.E. and S.E., had been living with their paternal grandmother but moved into M.D.'s home. W.E. and S.E. testified that defendant had separately engaged in numerous sexual acts with them. W.E. testified that defendant began to commit these sexual acts when she was nine years old, and he continued to do so until she was almost eleven years old. S.E. said that defendant began to commit the sexual acts when she was approximately twelve years old, and continued to do so until she was sixteen years old. Defendant testified in his own defense and denied the allegations.

Defendant was found guilty of all charges and he appealed. We reversed defendant's convictions and remanded for a new trial. State v. R.J.C., No. A-4564-03 (App. Div. Dec. 7, 2006) (slip op. at 20). We held that the trial court had erroneously barred defendant from presenting testimony from a pediatrician that, during a physical examination, she discovered a wart in S.E.'s genital tissues, which was the result of an infection with the highly-contagious human papillomavirus (HPV). Id. at 9-19. The court also had erroneously precluded defendant from presenting evidence that neither he nor M.D. had any visible manifestation of an HPV infection. Ibid.

We determined that, based on this evidence, a rational jury could infer that defendant did not engage in the sexual acts as alleged by S.E. Id. at 16. We held that, because the jury had been precluded from drawing this inference, and because such an inference could have raised a reasonable doubt as to whether defendant committed the charged offenses, the convictions could not stand and a new trial was required. Id. at 16-19. The State filed a petition for certification seeking review of our judgment. The Supreme Court denied the State's petition. State v. R.J.C., 189 N.J. 648 (2007).

Defendant was tried for a third time. W.E. and S.E. again testified. The State also presented evidence that, in the relevant time frame, S.E. had several sexual partners, and that S.E. was infected with HPV but defendant and M.D. did not have any visible manifestation of an HPV infection. Defendant again testified in his own behalf. The jury was unable to reach a unanimous verdict on any of the counts and the trial court declared a mistrial.

Defendant thereafter filed a motion to dismiss the indictment with prejudice. Invoking the Court's decision in State v. Abbati, 99 N.J. 418 (1985), defendant argued that a fourth trial would be inconsistent with principles of fundamental fairness.

On December 5, 2008, the trial court placed its decision on the record. The court considered all of the relevant factors under Abbati and found that dismissal of the indictment was not warranted under the circumstances. The court entered an order dated December 24, 2008, memorializing its decision. Defendant then filed a motion for leave to appeal. We entered an order on February 4, 2009, granting the motion.

II.

In Abbati, the Court considered "whether, and under what authority and standards, a trial court may dismiss an indictment with prejudice after a defendant has been twice tried for the same offense and each prosecution has ended in a mistrial due to a hung jury." Id. at 423. Abbati had been charged with kidnapping, aggravated sexual assault, unlawful possession of weapons (knives) and possession of a weapon (a knife) for an unlawful purpose. Ibid. At the first trial, the jury deliberated for about two days and informed the court that it was deadlocked. Ibid. The trial court thereupon declared a mistrial. Id. at 424. At the second trial, the parties relied upon substantially the same evidence that they had presented during the first trial. Ibid. The jury deliberated about one full day and reached an impasse. Ibid. The court declared a mistrial. Ibid.

Abbati then sought dismissal of the indictment with prejudice. Ibid. The trial court granted the motion and, with one judge dissenting, we reversed. Ibid. (citing State v. Abbati, 195 N.J. Super. 218 (App. Div. 1984)). We held that, although a trial court has discretion to dismiss an indictment, it could only override a prosecutor's decision to reprosecute if there was a "'patent and gross abuse of [prosecutorial] discretion.'" Id. at 425 (quoting Abbati, supra, 195 N.J. at 223). We found no such abuse of discretion. Ibid. Abbati appealed as of right to the Supreme Court pursuant to Rule 2:2-1(a). Ibid.

The Court initially noted that, because Abbati's prior trials had ended in mistrials, another trial on the same charges would not violate the double jeopardy clauses of the federal and state Constitutions. Id. at 425-26. The Court stated, however, that:

precepts of fundamental fairness, together with the judiciary's need to create appropriate and just remedies, and its general responsibility to assure the overall efficient administration of the criminal justice system, confirm an inherent power in a trial court to dismiss an indictment with prejudice following general mistrials attributable to repeated jury deadlocks.

[Id. at 427.]

The Court held that "a trial court may dismiss an indictment with prejudice after successive juries have failed to agree on a verdict when it determines that the chance of the State's obtaining a conviction upon further retrial is highly unlikely." Id. at 435.

In making this determination, the trial court must "carefully and expressly" consider the following:

(1) the number of prior mistrials and the outcome of the juries' deliberations, so far as is known; (2) the character of prior trials in terms of length, complexity, and similarity of evidence presented; (3) the likelihood of any substantial difference in a subsequent trial, if allowed; (4) the trial court's own evaluation of the relative strength of each party's case; and (5) the professional conduct and diligence of respective counsel, particularly of the prosecuting attorney.

[Ibid.]

The Court reversed our judgment and remanded the matter to the trial court for a "full determination" on whether the indictment should be dismissed. Id. at 437.

Here, the trial court "carefully and expressly" considered the Abbati factors. The court noted that there had been three previous trials, in which two juries were deadlocked but one jury had convicted defendant on all charges. The court noted that the evidence in all three trials was substantially the same although, during the second trial, the State had presented photographic evidence found after the first trial. According to the court, the newly-discovered evidence strongly corroborated the testimony of one of the victims. Moreover, in the third trial, the State had presented the HPV evidence that had been excluded from the first two trials.

The court found that consideration should be given to the conviction resulting from the second trial in determining whether it was likely that a conviction could result from another trial. The court stated that the HPV evidence that had been excluded from the first and second trials was "virtually . . . if not literally neutral" because there were many explanations for defendant's failure to exhibit any symptoms of an HPV infection.

The court additionally found that the three trials varied in terms of their complexity and length. The court observed that the first trial took over a month, whereas the second trial took only eight days. The third trial included the expert testimony regarding HPV that had been excluded from the first two trials. The court found that the trials were not "very lengthy."

The court also assessed the likelihood of whether there would be a substantial difference in the results if another trial was permitted. The court stated "without reservation" that it was "surprised" by the inability of the jury to reach a verdict in the first trial. The court found that W.E. and S.E. were "extremely credible" witnesses.

The court observed that when W.E. and S.E. testified in the third trial, they were young adults and "they did not have the impact that they had as children." The court added, however, that in the third trial, W.E. and S.E. "presented as mature, intelligent young women." W.E. and S.E. did not appear to have "revenge in their minds or their souls[.]" The court commented that it was "mildly surprised" that the jury was unable to reach a verdict in the third trial.

The court additionally observed that in "cases of this kind," there is always a chance that the jury will not accept the testimony of the alleged victims, whether they are testifying as children or adults, given the circumstances that occurred in this matter. The court stated that there was "a greater dose of the revenge factor" in the third trial. The court nevertheless found that the State has a strong case based on W.E.'s and S.E.'s testimony.

The court further found that weight should be given to the strong public policy regarding "crimes of this kind[.]" The court observed that our society views sexual assaults upon minors as a serious matter. The court stated that, along with the alleged victims, society has a strong public interest in having a final and definitive resolution of the charges. The court recognized that defendant had suffered as a result of the three trials but stated that, upon consideration of all of the Abbati factors, "it is appropriate that this case have a final resolution at the hands of the jury[.]"

III.

On appeal, defendant argues that the trial court erred by denying his motion to dismiss the indictment. He maintains that the trial court should not have considered the conviction in the second trial because that conviction was reversed on appeal. He further maintains that the court erred in its assessment of the strength of the State's case, and failed to give sufficient weight to the hardships he has suffered and will suffer as a result of the successive prosecutions. Defendant contends that it would be fundamentally unfair to permit the State another opportunity to convict him.

We are convinced from our review of the record that defendant's arguments are without merit. We are satisfied that the trial court appropriately considered the relevant Abbati factors and correctly determined that principles of fundamental fairness do not require the dismissal of the indictment. We therefore affirm the order denying defendant's motion to dismiss substantially for the reasons stated by the trial court in the thorough and comprehensive decision that it placed on the record on December 5, 2008. R. 2:11-3(e)(2). We add the following.

The State argues that Abbati does not apply here because in Abbati the Court stated that a trial court may dismiss an indictment "after successive juries have failed to agree on a verdict[.]" Id. at 435. The State maintains that, because defendant was convicted at his second trial, and the juries were unable to reach verdicts in the first and third trials, this case does not present a situation where "successive" juries failed to agree upon verdicts.

We decline to read Abbati so narrowly. Although the Abbati case involved the failure of "successive" juries to agree on a verdict, a trial court's authority to dismiss an indictment is not limited to that specific factual setting. The Court agreed in Abbati that dismissal of an indictment may be warranted in cases where mistrials have been declared due to "repeated jury deadlocks." Id. at 427. We are satisfied that the doctrine of fundamental fairness enunciated in Abbati may be invoked where, as in this case, juries have twice been unable to reach verdicts and one conviction had been reversed on appeal.

We turn to defendant's argument that the court erred by denying his motion to dismiss. We note initially that, in weighing the relevant factors under Abbati, the trial court had the unique perspective derived from having presided over defendant's three trials. The trial court's factual findings are entitled to our deference because they are "'substantially influenced'" by the court's "'opportunity to hear and see the witnesses and to have the "feel" of the case[.]'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Defendant argues that the trial court erred by considering the verdict returned in the second trial. We disagree. In our judgment, the trial court properly considered that verdict in weighing the strength of the State's case and the likelihood that a conviction might result from a fourth trial. In doing so, the trial court recognized that we had concluded in defendant's earlier appeal that the conviction could not stand because the HPV evidence had been excluded.

The trial court essentially found, however, that the HPV evidence did not have a significant bearing upon the results in the three trials. In this regard, we note that the HPV evidence had been excluded from the first trial and admitted in the third trial. The jury was deadlocked in both cases, thereby suggesting that the results in those proceedings did not turn upon the admission or exclusion of the HPV evidence.

We are therefore of the view that the trial court correctly found the result reached by the jury in the second trial was relevant to determining whether it is "highly unlikely" that a conviction will result from a fourth trial. The jury's verdict finding defendant guilty in the second trial reflects its assessment of the State's evidence, albeit without the HPV evidence. Even though that conviction was reversed on appeal, it has some bearing on whether the State is likely to obtain a conviction in a fourth trial.

Defendant next argues that the trial court erred in finding that the State had strong evidence in support of the charges. The State's case turned in large measure upon the credibility of the alleged victims. As stated previously, the court found that W.E. and S.E. were both credible witnesses. The court's finding was based on their testimony and informed by its observations of the character of the witnesses, their demeanor and "common human experience[.]" Id. at 474 (citing State v. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Johnson, supra, 42 N.J. at 161). The court's finding is entitled to our deference.

Defendant additionally argues that the trial court failed to give sufficient weight to the fact that in the first and third trials, he had private counsel of his own choice, while he was represented by assigned counsel in the second trial. Defendant did not, however, establish that the attorney who represented him in the second trial was any less effective or professional than the attorneys who represented him in the first and third trials.

Defendant further contends that the court erred by giving undue weight to the prosecutor's decision to go forward with a fourth trial. Again, we disagree. A "prosecutor's decision to reprosecute is not immune from judicial supercession even absent a finding of abuse of prosecutorial discretion." Abbati, supra, 99 N.J. at 434. "[T]he trial court must carefully consider the prosecutor's decision to reprosecute in reaching its conclusion regarding dismissal, and defer to it when the balance does not otherwise compel dismissal[.]" Ibid.

We are satisfied that the trial court did not give undue weight to the prosecution's decision to go forward with a fourth trial. The court deferred to the prosecutor's judgment but did so only after finding that a proper weighing of the Abbati factors did not "otherwise compel dismissal" of the indictment. Ibid.

Defendant further argues that the court "completely ignored [his] rights and presumption of innocence." Defendant asserts that, as a result of the successive prosecutions, his life has been "ruined." Defendant says that he has lost his family and friends, all forms of recreation, his home, his livelihood, and his savings. He remains incarcerated because he has not been able to post bail. Defendant maintains that he is innocent and the prosecutor's continued pursuit of this matter is unjust.

Like the trial court, we recognize the hardships that defendant has had to endure as a result of the three prior trials. We cannot conclude, however, that the trial court erred by finding that it would not be fundamentally unfair to allow the State to proceed with a fourth trial. Id. at 435. We are convinced that, upon the weighing of all the relevant factors under Abbati, dismissal of the indictment is not warranted at this time.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-2775-08T4

RECORD IMPOUNDED

June 3, 2009