STATE OF NEW JERSEY v. GERALD POHIDA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6266-05T26266-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALD POHIDA,

Defendant-Appellant.

_______________________________________

 

Argued January 6, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0497.

Steven D. Altman argued the cause for appellant (Benedict and Altman, attorneys; Mr. Altman and Philip Nettl, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Gerald Pohida was charged under Middlesex County Indictment No. 04-04-0497 with two counts of kidnapping, N.J.S.A. 2C:13-1b (counts one and five); two counts of sexual assault, N.J.S.A. 2C:14-2c (counts two and seven); criminal sexual contact, N.J.S.A. 2C:14-3b (count three); two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts four and eight); and aggravated sexual assault, N.J.S.A. 2C:14-2a (count six). Defendant was tried to a jury, which found him guilty on all counts. The court imposed an aggregate sentence of thirty years of incarceration with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on June 14, 2006. For the reasons that follow, we affirm.

I.

We briefly summarize some of the evidence presented at the trial. In October 2003, a local police department received information that L.M., a thirteen-year-old female, was having an inappropriate relationship with defendant, who was forty-one years old at the time. The police investigated the allegations, and L.M. gave the police a statement. L.M. said that she first began to communicate with defendant in 2002 over the internet and had engaged in sexual activity with him on various dates from June 2003 through October 2003.

At trial, L.M. testified that she first met defendant in person at a mall in June of 2003. They walked around the mall, sat on some benches, and talked. Several days later, defendant picked up L.M. in his automobile. They drove around for a half hour and L.M. performed oral sex upon defendant. Thereafter, defendant drove L.M. to a garage where he instructed her to get on her knees and perform oral sex upon him. On three subsequent occasions, L.M. performed oral sex upon defendant.

Thereafter, defendant wanted to meet some of her friends. L.M. brought A.S., her friend and classmate, to meet defendant. A.S. was twelve years old at the time. Defendant took them for a drive in his car. L.M. performed oral sex upon defendant while he drove. L.M. and A.S. then switched seats and A.S. performed oral sex upon defendant.

L.M. testified that she and defendant had their final meeting in October 2003. Defendant picked up L.M. at school. She was wearing her school uniform. Defendant drove her to the home of Jim Dalian (Dalian), an individual with whom they had communicated on the internet. L.M. performed oral sex upon both men, and Dalian performed oral sex on her.

A.S. also testified. She said that she met defendant through L.M. and communicated with him several times over the internet. A.S. stated that she and L.M. met defendant in person on August 8, 2003. A.S. testified that, after defendant picked them up in his car, she and L.M. performed oral sex upon defendant.

Detective John Fitzsimmons (Fitzsimmons) testified that, the day after L.M. provided her statement to the police, he responded to defendant's home with other police officers. They arrested defendant and searched his home. They seized defendant's computers, various components for the computers, his cell phone, and his car.

Fitzsimmons said that defendant was not advised of his Miranda rights when he was arrested; however, Fitzsimmons read defendant his Miranda rights after they arrived at police headquarters. Thereafter, defendant was questioned by the police and he responded to their questions. Defendant admitted meeting L.M. but denied that they ever engaged in any sexual activity. Fitzsimmons also testified that the search of defendant's car revealed several items, including directions to Dalian's house and a stained towel. Tests performed by the New Jersey State Police revealed that the towel contained defendant's semen.

Dalian testified that he "met" L.M. on the internet. Dalian pled guilty to second-degree sexual assault and he had been sentenced to six years of incarceration. Dalian was incarcerated at the time of the trial. He stated that he communicated with defendant on-line. Dalian said that defendant and L.M. visited him in his apartment in October 2003, and L.M. was wearing a "kind of a school uniform[.]" L.M. undid her bra and Dalian touched her breasts. According to Dalian, defendant asked him if he would like L.M. to perform oral sex upon him. Dalian agreed and L.M. performed oral sex "for a little bit." L.M. also performed oral sex upon defendant, while Dalian performed oral sex upon L.M.

Defendant testified on his own behalf. Defendant admitted that he communicated with L.M. over the internet. He said that L.M. had discussed her family, cutting herself and suicide. Defendant further testified that they met in person on several occasions. Defendant denied that he and L.M. had an inappropriate relationship. He said that he had not engaged in sexual acts with L.M. or A.S. Defendant stated that he only met A.S. on one occasion, when he picked L.M. up from school, and A.S. never entered his car. He also denied that he met Dalian prior to the trial.

Defendant additionally testified about the towel that the police found in his car. He said that he had a hereditary condition that made it painful for him to urinate or ejaculate. He stated that he would use the towel in his car to relieve some of the pain he felt due to this condition.

As stated previously, the jury found defendant guilty on all charges. He appeals and raises the following issues for our consideration:

POINT I

DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT SHOULD HAVE BEEN GRANTED, BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS REQUEST FOR COUNSEL.

A. If Defendant asserted his right to counsel as described by Kerri Pohida, his statement must be suppressed.

B. The trial court initially found Mrs. Pohida credible, a finding entitled to deference.

POINT II

THE TRIAL COURT ERRED IN FINDING, AFTER THE MICHAELS HEARING, THAT L.M.'S TESTIMONY WAS UNTAINTED BY THE POLICE INTERROGATION.

POINT III

THE STATE'S REPEATED IMPROPER COMMENTS ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION IN OPENING STATEMENT AND CROSS-EXAMINATION, IN THE FACE OF OBJECTIONS BY COUNSEL AND ADMONISHMENTS BY THE TRIAL COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL, AND WERE INCURABLE BY THE COURT'S INSTRUCTIONS.

POINT IV

THE STATE'S INFLAMMATORY ARGUMENTS IN SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT, AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. The Prosecutor unfairly maligned defense counsel.

B. The Prosecutor improperly vouched for witnesses.

C. The [P]rosecutor misstated the facts.

POINT V

THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY DENYING HIM THE OPPORTUNITY TO PRESENT MEDICAL RECORDS CORROBORATING HIS DEFENSE, AFTER THE STATE OPENED THE DOOR BY IMPLYING THAT THE RECORDS DID NOT EXIST.

POINT VI

THE TRIAL COURT DID NOT ADEQUATELY RESPOND TO THE PROBLEM OF SLEEPING JURORS, COSTING DEFENDANT A FAIR TRIAL.

POINT VII

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL, BY EXCLUDING HIM FROM THE COURTROOM DURING AN ARGUMENT ABOUT THE USE OF POTENTIAL EVIDENCE.

POINT VIII

THE ERRORS OF THE TRIAL COURT AND THE STATE CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL.

Defendant has filed a pro se supplemental brief in which he raises the following arguments:

POINT I

THE PROSECUTOR'S EGREGIOUS AND CUMULATIVE MISCONDUCT PRIOR TO AND THROUGHOUT [THE] TRIAL WAS CLEARLY AND UNMISTAKENLY, IMPROPER BECAUSE SAID MISCONDUCT SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND CONSTITUTED REVERSIBLE ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10.

A. IN HER OPENING, CROSS-EXAMINATION OF THE DEFENDANT, AND SUMMATION, THE PROSECUTOR ENGAGED IN REPEATED AND CUMULATIVE MISCONDUCT IMPINGING UPON DEFENDANT'S RIGHT TO REMAIN SILENT, THEREBY CONSTITUTING REVERSIBLE ERROR.

B. THE PROSECUTOR ENGAGED IN FURTHER MISCONDUCT BY ENHANCING THE CREDIBILITY OF THE STATE'S CASE BY PERSONALLY VOUCHING FOR HER WITNESSES' CREDIBILITY.

C. THE PROSECUTOR MISSTATED FACTS IN HER OPENING AND SUMMATION THAT CLEARLY HAD THE CAPACITY TO MISLEAD AND INFLAME THE JURY, BRINING ABOUT AN UNJUST RESULT.

POINT II

THE COURT DEPRIVED THE DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND CONFRONTATION, AND SAID DEPRIVATION CONSTITUTED REVERSIBLE ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, PARAS. 1, 10.

A. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO INQUIRE AS TO THE CONDITION OF SLEEPING JURORS.

B. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT MADE AN EX-PARTE COMMUNICATION WITH THE DELIBERATING JURY, WHO WERE REQUIRED TO STAY PAST 9:00 P.M. FRIDAY EVENING.

C. REVERSIBLE ERROR WAS COMMITTED WHEN THE COURT DENIED DEFENDANT'S REQUEST TO SUPPRESS L.M.'S STATEMENT PURSUANT TO STATE v. MICHAELS.

II.

Defendant first argues that the motion judge erred by denying his motion to suppress his statement to the police. We disagree.

At the suppression hearing, Fitzsimmons testified that when the police arrived at defendant's home on October 24, 2003, to execute the arrest and search warrants, defendant answered the door. He was the only person at home at the time. Fitzsimmons informed defendant that he was under arrest. Fitzsimmons said that defendant waited in the living room with one of the officers while the other officers searched the premises.

Defendant's wife, Kerri Pohida, returned to the home while the search was underway. Fitzsimmons did not speak to her. He said that the officers were in the Pohida home for about an hour and twenty or twenty-five minutes. When the search was completed, Fitzsimmons transported defendant to police headquarters. There, Fitzsimmons informed defendant of his Miranda rights by reading a statement of those rights from a pre-printed card.

Defendant signed the card, acknowledging that he understood his rights. He agreed to cooperate and answer questions. Fitzsimmons said that defendant was coherent and he did not appear to be under the influence of alcohol or drugs. Defendant answered most of the questions posed to him. Fitzsimmons said that he did not promise defendant anything in return for making the statement and defendant was not coerced or threatened in any way.

Mrs. Pohida testified that, on October 24, 2003, when she returned home, she observed several police cars in front of the house and police officers on the front lawn. Mrs. Pohida entered the house and learned that her husband was being arrested.

She said that she could hear the conversations between her husband and the officers. Mrs. Pohida stated, "At one point prior to them taking him to the police station[,] he had asked if he [could] call his lawyer." According to Mrs. Pohida, the officer responded that defendant could call his lawyer from the police station.

Mrs. Pohida asked the officer if she could call defendant's lawyer and the officer told her she could do so as soon as the officers left the house. Mrs. Pohida testified that she could not get in touch with defendant's lawyer. She called defendant's brother and asked him to call a lawyer. Defendant's brother called back later and said that he had contacted an attorney.

On cross-examination, Mrs. Pohida stated that she could not recall the name of the officer with whom she had spoken. She said she was "foggy that day." She also did not recall the time of day when the officers were in the home. Mrs. Pohida said that an attorney phoned her but she did not call the police station to inform her husband that she had gotten in touch with a lawyer.

On November 15, 2004, the motion judge placed his decision on the record. The judge concluded that defendant had voluntarily provided his statement to the police. The judge determined that, even if defendant had made a request for counsel when he was at home, defendant had changed his mind later and gave a voluntary statement to the police. In his decision, the judge stated that:

Mrs. Pohida testified that she heard Mr. Pohida ask for a lawyer, and heard Sergeant Fitzsimmons say, that he could call for a lawyer at headquarters. So, the question becomes whether that statement - those statements, even if I assume that Mrs. Pohida's testimony is credible, I disregard the natural feelings of a wife or a husband, that need, the desire, the acute desire, to want to be helpful, in all circumstances.

Thereafter, the State filed a motion asking the judge to "clarify" its decision. The State apparently recognized that, if defendant had asked to speak to an attorney while he was at home, he could not thereafter be questioned by the police unless the attorney was present. The State asked the judge to make a finding on whether defendant had invoked his right to counsel at home before he was transported to police headquarters.

On May 16, 2005, the judge placed his decision on the record. The judge found that Mrs. Pohida's statement that defendant asked to speak to an attorney while he was at home was not credible. The judge observed that Mrs. Pohida's assertion was "not consistent with . . . the degree of cooperativeness" that defendant displayed "throughout." The judge also stated that Mrs. Pohida's testimony arose "out of [a spouse's] natural feelings . . . to want to be helpful in all circumstances[.]"

Defendant argues that the motion judge initially found that Mrs. Pohida was credible and that finding is entitled to deference. Defendant further argues that the judge's later credibility findings contradict his earlier determination and should not be given any deference because those findings were made several months after the suppression hearing and because the judge based the credibility findings entirely on the assumption that a person has a natural inclination to assist his or her spouse.

Factual findings by a judge are binding on appeal when supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We must give deference to the findings of the judge when they "'are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161).

Contrary to defendant's assertion, the record shows that the motion judge did not make a finding regarding Mrs. Pohida's credibility in his decision of November 15, 2004. Moreover, the judge's subsequent findings were not based solely upon the assumption that an individual has a natural inclination to assist his or her spouse, although that assumption is entitled to considerable weight when weighing the testimony of a spouse.

In his decision, the judge also noted that Mrs. Pohida's statement that defendant had asked a police officer for permission to call an attorney was inconsistent with the fact that he had cooperated "throughout" with the police. Indeed, it is fair to assume that if defendant wanted to speak to an attorney, he would have requested permission to do so when he was provided the Miranda warnings at police headquarters.

Defendant also argues that the judge failed to provide a sufficiently detailed explanation of his reasons for finding that Mrs. Pohida's testimony was not credible. Although the judge could have provided a more thorough explanation of his credibility finding, that is not required "when the record as a whole made the [finding] clear." Id. at 473 (citing State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966)).

We therefore are satisfied that there is sufficient credible evidence in the record to support the judge's finding that defendant did not invoke his right to counsel when he was at home and defendant voluntarily gave a statement to the police.

III.

We next consider defendant's contention that the trial court should have barred L.M. from testifying at trial because the State's investigators used coercive and suggestive techniques when they interviewed L.M.

In State v. Michaels, 136 N.J. 299, 312 (1994), the Court found that in cases involving the sexual abuse of children, "the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events" and undermine "the reliability of the statements and subsequent testimony[.]"

The Court held that in such cases, the trial court has the "responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence." Id. at 316. The trial court must determine whether the State's investigatory techniques "were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." Id. at 320.

Accordingly, a trial court may be required to conduct a pre-trial taint hearing. In that proceeding, the defendant must make a preliminary showing that the victim's statements resulted from improper interview techniques. Ibid. Such practices may include:

the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions[.]

[Id. at 321.]

If a defendant presents sufficient evidence of unreliability to justify a taint hearing, the burden shifts to the State to prove, by clear and convincing evidence, that the proffered statements are reliable. Ibid. The trial court must determine whether,

despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques.

[Ibid.]

In making this decision, the trial court may consider, among other things, the victim's age, any relationship the victim may have had with the person conducting the interview, circumstances surrounding the questioning, and the type of questioning. Id. at 318 (citing State v. Hill, 121 N.J. 150, 168 (1990)). The court's focus must be on

the coercive and suggesting propensity of the investigative questioning of each child and whether that questioning, examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable.

[Id. at 322.]

Here, the trial court conducted a Michaels hearing and concluded that L.M.'s testimony was admissible. The court found that, while the interrogators had not videotaped their initial interview of L.M., and used too many leading questions, these improper interrogation techniques did not render L.M.'s statements or her proffered testimony unreliable.

The court emphasized that L.M. was almost fourteen years old when she gave her statement to the police and she did not accept every question presented to her. The court observed that, at times, L.M. stood her ground "showing that [she was] not as susceptible to the leading questions as a very young child might be."

The court additionally noted that L.M. did not have any relationship to the officers who conducted the interview. Furthermore, L.M. had been involved in a prior incident and had been interviewed by the police. The court found that L.M. was "not as na ve as some other children in her situation."

We note initially that the State argues that a Michaels hearing was not required in this case. The State maintains that such a hearing is only required when the investigators interview a child who is less than twelve years of age or suffers from a mental deficiency. We see no need to address that issue. We note, however, that the Supreme Court in Michaels required taint hearings in cases involving sexual abuse of children and did not limit the hearings in the manner advocated by the State.

We are satisfied that there is sufficient credible evidence in the record to support the court's determination that L.M. had not been coerced by the investigating officers and that her statements and testimony were not tainted by the investigatory techniques employed here. The trial court recognized that some of the techniques the investigators employed in their interview of L.M. were improper but, considering all of the circumstances, the court was convinced that those techniques did not render L.M.'s statement and testimony unreliable. The record clearly supports the court's determination.

Defendant argues, however, that L.M. essentially conceded that her statement was improperly influenced by the State's investigative techniques. Defendant points to an e-mail message written by L.M. and posted on the internet on January 20, 2004. L.M. wrote the following:

Cops say they want to help you . . . but they don't. They promise that if you tell them things that it will help you . . . when it won't. They make you tell them things that you don't want to . . . some things that never even happened. They ask you things like they barely matter later to find out that they used it [against] you. They find out what makes you tick . . . then they [manipulate] you into telling them what they want to hear. They put [innocent] men away. They let guilty men go free . . . and to think I used to want to be one . . . glad I know better now.

Defendant raised this issue prior to the trial and the trial court conducted another hearing on the issue, at which L.M. testified regarding the e-mail. L.M. said that the e-mail did not relate to this matter. L.M. stated that her message related to what she had seen on television and it was not based on any personal experience. L.M. further testified that the investigators did not tell her what to say, but merely questioned her about matters she had previously disclosed to them.

After the hearing, the court found that L.M.'s e-mail did not alter its previous decision that the statement L.M. gave to the police and her anticipated testimony had not been impermissibly tainted or coerced by the State's investigative techniques. The court stated that L.M. is "young but she's tough young[.]" The court also noted that L.M. had testified that, when she was questioned by the police, she was asked about information that she provided to the police "and not vice versa[.]" The record supports the court's findings.

IV.

Defendant next argues that the assistant prosecutor improperly commented on his right against self-incrimination. Again, we disagree.

The following facts are relevant to our consideration of this issue. As stated previously, defendant was informed of his Miranda rights shortly after he arrived at police headquarters and he agreed to answer questions by the police. In response to those questions, defendant explained that he began to communicate with L.M. over the internet in July or August of 2003.

Defendant said that he was concerned about L.M. because on the internet she had talked about suicide and cutting her wrists. They began to meet in August 2003. Defendant stated that, at times, he drove with L.M. in his car. He brought her to his home on one occasion. Defendant asserted that he and L.M. never engaged in phone sex or communicated over the internet about sexual activity.

Defendant additionally denied that he had spoken to L.M. in a "sexual" way. He said that, while he was driving with L.M, he may have touched her but only "in a normal manner." Defendant stated, that L.M. had hugged him once or twice when they talked. He also said that she put her hand on his knee once or twice "but not in a sexual way."

Defendant was asked if he wanted to add anything to his statement. He said:

I'd like to add that . . . I can't believe this is going on. That I in no way[,] any way, shape or form did anything to break the law. I realize now sitting here that I'm obviously very stupid for trying to help a young lady that obviously had problems that it appears to me that this young lady took it way beyond what it actually was. Me trying to help her because I felt she was suicidal.

In her opening statement, the prosecutor told the jury that it would hear evidence concerning defendant's statement to the police, but what the jury would

not hear from the defendant's statement is that anything of a sexual nature occurred between the two of them. You will not hear that he had ever been to [L.M.]'s school, . . . you will not hear that he ever met a man named James Dalian and you will [not] hear that he ever met any of [L.M.]'s friends or had any of them in his car.

After the prosecutor completed her opening statement, defense counsel asked to be heard at side bar and objected, arguing that the prosecutor had commented improperly on defendant's right to silence.

The judge ruled that defendant did not have an obligation to say anything and the prosecutor had improperly suggested "that his right of silence is evidence of guilt." The court thereafter instructed the jury as follows:

Please understand that every person has the right to remain silent and . . . has no obligation to offer any [proof] relating to their innocence so if we use that right and they remain silent it [cannot] be used against us at any point in time so I'm asking you to disregard the comment [about] what the defendant did not say at any time during this proceeding.

As stated previously, defendant testified at trial. In his direct testimony, defendant acknowledged that on one occasion he had picked L.M. up at school. He testified that he met A.S. once, although very briefly, when he picked L.M. up at school. He admitted that he had taken L.M. to Dalian's residence. He said that, at times, he had communicated with L.M. by means of text messages. He also explained that he kept a towel in his car because of the problems he had with urination and ejaculation. He claimed that he used the towel to relieve pain related to these problems.

On cross-examination, the prosecutor asked defendant about his statement to the police, which had been introduced during Fitzsimmons' testimony. In response to the prosecutor's questions, defendant admitted that, in his statement, he never mentioned that he picked L.M. up at school, did not discuss meeting A.S., did not inform the police that he took L.M. to Dalian's house, did not mention that he sent text messages to L.M., and never mentioned the towel that he kept in the car.

At a side bar conference, defense counsel objected to this line of questioning and the court ruled that the questions regarding the towel were improper. The court then instructed the jurors to disregard that question and defendant's response. The following day, after hearing further argument by the attorneys on this issue, the court instructed the jurors to disregard all of the prosecutor's questions concerning facts that defendant had not mentioned in his statement to the police. The court told the jury that defendant had a right to remain silent and the jury should disregard the questions regarding his "failure to state something affirmatively."

The prosecutor's cross-examination of defendant continued. The prosecutor asked defendant whether the police had given him an opportunity to add to his statement. Defense counsel objected and the court sustained the objection, stating that the prosecutor had improperly inferred that defendant "failed to say something when he had the opportunity." Defendant moved for a mistrial and another curative instruction. The court denied the motion for a mistrial but said that, at the end of the trial, it would again instruct the jury on this issue.

In its final instructions, the court discussed the manner in which the jury could consider prior inconsistent statements of the witnesses. The court stated that "[w]hen you are dealing with inconsistencies or omissions please recall that I told you that you can not consider any omission by the defendant in any prior statement than what he gave at trial."

Defendant argues that the prosecutor improperly commented upon and questioned him regarding statements he made at trial but were not included in the statement he gave to the police. Defendant maintains that he was unduly prejudiced by the prosecutor's remarks and questions. He contends that the court's instructions to the jury were not sufficient to cure the prejudice and his motion for a mistrial should have been granted. We disagree.

The trial court's rulings that the prosecutor had improperly commented upon and questioned defendant about his silence were based upon the Court's decision is State v. Muhammad, 182 N.J. 551 (2005). In that case, the defendant was charged with abducting and raping M.M. Id. at 558. According to M.M., the defendant approached her, told her he was a police officer and said that she was under arrest for soliciting prostitution. Id. at 559. The defendant ordered M.M. to get into the back seat of his car. Ibid. He drove to a dark, dead-end street, parked the car, forced M.M. to perform oral sex and then raped her. Ibid.

The defendant drove M.M. to police headquarters. Id. at 560. The defendant identified himself as a police officer and told the sergeant that, earlier that evening, M.M. had been harassing his brother and sister. Ibid. He said that he put her in the car to scare her; however, she became upset and insisted on being taken to the police station. Id. at 560-61. M.M. accused the defendant of lying and said that he had raped her. Id. at 560. She produced the condom he had discarded in the car after the sexual assault. Ibid.

At trial, the defendant took the position that M.M. was a prostitute with whom he had a consensual sexual encounter. Id. at 562. In his opening statement, the prosecutor said that the defendant had not mentioned these facts at the police station. Id. at 562. In addition, the prosecutor elicited testimony from the desk sergeant and a police officer, which established that the defendant never told the police that he had sex with M.M. and did not mention that she was a prostitute. Id. at 563. In his closing, the prosecutor again mentioned that the defendant did not tell the police M.M. was a prostitute or that he had sex with her as an act of prostitution. Id. at 564.

The Court held in Muhammad that the prosecutor's remarks and the testimony from the police witnesses were direct references to defendant's silence. Id. at 555. The Court said that the defendant had a right to remain silent when in police custody. Id. at 567 (quoting State v. Deatore, 70 N.J. 100, 114 (1976)). The Court noted that a defendant who initially responds to police questioning but later asserts a right to remain silent may do so "without fear that his silence will be used against him at trial." Id. at 568.

The Court held that the prosecutor's reference to the defendant's silence required reversal of the defendant's conviction. Id. at 572-74. The Court noted that, after M.M. made her allegations, the defendant was told he could not leave the police station. Id. at 572-73. The defendant remained silent while he was in custody. Id. at 573. The Court observed that, in questioning the police witnesses, the prosecutor

pointedly elicited testimony that defendant remained silent while detained at headquarters. The prosecutor's references to defendant's failure to tell the police officers about a consensual sexual relationship with M.M. were so broad that they encompassed the entire period defendant was in custody at headquarters. For example, the prosecutor's opening statement referred to defendant's silence while "at the police department," a time that included when he had been placed under arrest.

[Ibid.]

The Court held that the defendant "was not obliged to give the police the exculpatory story [that] his attorney presented at trial, and the State was not permitted to use his silence to convict him." Ibid.

However, after the trial in this matter, the Court decided State v. Tucker, 190 N.J. 183, 189 (2007). In that case, the defendant reported to the police that he had returned home and found his mother's dead body. Id. at 186. The police questioned the defendant and he said that he last saw his mother two days earlier when he drove her to the grocery store. Ibid. The defendant told the police that he then left to spend several days with his girlfriend, and returned home to find his mother's body. Ibid. He stated that, when he returned, the back door was unlocked. Ibid.

The defendant was taken to police headquarters and given Miranda warnings. Ibid. He agreed to speak to the police. Id. at 187. The defendant again said that he last saw his mother several days before when he took her to the grocery store. Ibid. He did not mention that he had taken his mother to the bank. Ibid. The police found the victim's purse in a closet. Ibid. The purse contained $747 in cash and a checkbook. Ibid. The last entry in the checkbook indicated that a check in the amount of $3,000 had been made out to cash. Ibid.

The police questioned the defendant a second time and again provided him with Miranda warnings. Ibid. He acknowledged that he had taken his mother to the bank but said that he waited for her in the car. Ibid. The defendant also said that the $520 that was found in his pocket was money he had earned. Ibid. A surveillance tape obtained from the bank showed the defendant with his mother inside the bank. Ibid. He was wearing denim shorts that were later found in his girlfriend's apartment. Ibid. The shorts were tested and found to contain blood of the victim, the defendant and an unknown third party. Ibid.

The defendant was charged with his mother's murder and related offenses. Ibid. At trial, the prosecutor said in his opening statement that, while defendant gave statements to the police, he never mentioned that he went to the bank. Id. at 188. The State elicited testimony from police witnesses that when the defendant was first questioned at the scene and later at the police station, "he said nothing about taking his mother to the bank." Ibid. The defendant did not testify at trial, nor did he call any witnesses. Ibid. In his summation, the prosecutor "stressed that defendant failed to mention the bank in his first two statements." Ibid.

The Court held that the prosecutor had not acted improperly by commenting upon and eliciting testimony that the defendant had not informed the police that he had taken his mother to the bank. Id. at 188. The Court noted that the United States Supreme Court in Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980), had addressed an analogous issue and held that "the prohibition against the use of defendant's silence after Miranda warnings are given 'does not apply to cross-examination that merely inquires into prior inconsistent statements.'" Id. at 189 (quoting Anderson, supra, 447 U.S. at 408, 100 S. Ct. at 2182, 65 L. Ed. 2d at 226).

The Tucker court said that in Anderson, the Court "reasoned that such cross-examination 'makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.'" Ibid. (quoting Anderson, supra, 447 U.S. at 408, 100 S. Ct. at 2182, 65 L. Ed. 2d at 226). The Anderson Court also said that, while the omission of facts in a statement could be viewed as silence, it was not inclined to adopt such a "'formalistic understanding'" of that term. Ibid. (quoting Anderson, supra, 447 U.S. at 409, 100 S. Ct. at 2182, 65 L. Ed. 2d at 227).

In Tucker, our Supreme Court stated that it was "in accord" with the Court's "reasoning in Anderson." Ibid. The Court thus held that, "[a] defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial." Ibid. The Court emphasized that when a defendant agrees to give a statement, "he or she has not remained silent, but has spoken." Ibid.

The Court in Tucker added that in Muhammad it had struck the balance in favor of the defendant because, in that case, the defendant began to speak to the police at or near the time of his arrest but then fell silent. Id. at 190 (citing Muhammad, supra, 182 N.J. at 568). In that situation, the words that the defendant could have spoken could not be used against him. Ibid. In Tucker, the Court said that the:

defendant did not remain silent, as he had a right to do. Defendant's several statements were admitted into evidence and there is no claim that it was error to do so. Defendant was not obligated to give the subsequent statements that either omitted key aspects of where he had taken his mother or contained assertions that were contradicted by other evidence. The fact is, defendant did not remain silent, but freely related different stories to the police. Under these circumstances, we strike the balance in favor of the State. We conclude that the State's pointing out of inconsistencies in defendant's statements and other evidence at trial did not constitute an unconstitutional comment on silence.

[Ibid.]

In our judgment, Tucker squarely applies in this case. Defendant was provided Miranda warnings. Like the defendant in Tucker, defendant here did not remain silent. He voluntarily offered a statement to the police that was inconsistent with his trial testimony because it omitted key facts related to his relationship with L.M. In our judgment, it was not improper for the prosecutor to comment upon and question defendant regarding the facts that defendant failed to disclose in the statement that he gave to the police.

V.

We turn to defendant's contention that the prosecutor made improper comments in her summation.

A prosecutor's duty "is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987) (citing State v. Farrell, 61 N.J. 99, 104 (1972)). "Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). A prosecutor "'is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.'" Ibid. (quoting State v. DiPaglia, 64 N.J 288, 305 (1974) (Clifford, J., dissenting)).

Defendant argues that the prosecutor maligned the defense with the following comments regarding A.S.'s testimony:

There was absolutely not one question asked of [A.S.] with respect to coercion. Whether she felt threatened by the police. Whether she felt suggested to by the police. Recall counsel's cross-examination of her. I think it lasted all of twenty minutes. Why? Because they knew too that she was not coerced.

Defendant also takes issue with the prosecutor's remark that the jury should consider whether defense counsel had elicited testimony about L.M. to "disparage the victim and assassinate her character," and the prosecutor's statement, "Was it blaming the victim as so many of these sexual assault cases do or even worse?"

Defendant further asserts that the prosecutor improperly vouched for the credibility of the witnesses by stating that L.M. was "telling the truth" and every one of the State's witnesses testified credibly. In addition, defendant says that the prosecutor misstated the facts by referring to defendant's statement as a "confession" and stating that defendant had in his own words confessed to having an inappropriate relationship with L.M.

We agree with defendant that some of the prosecutor's comments were inappropriate. We do not believe that the prosecutor should have suggested that defense counsel knew that A.S.'s statements had not been coerced. We also do not believe that the prosecutor should have characterized defendant's challenge to L.M.'s credibility as character assassination or a personal attack upon the victim, and we do not think it was appropriate for the prosecutor to offer her personal opinion as to the veracity of the State's witnesses.

Nevertheless, we are not convinced that the prosecutor's few improper remarks warrant reversal of defendant's convictions. Not every assertion by a prosecutor of questionable propriety will result in reversal of a conviction. Reversal is warranted only if the prosecutor's remarks are "so egregious that [they] deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322. We are satisfied that, viewing the trial record as a whole, the prosecutor's few improper remarks did not deprive defendant of his right to a fair trial.

VI.

Defendant additionally argues that the trial court violated his right to be present at his trial when it ordered that he leave the courtroom.

During defendant's cross-examination, the State sought to introduce a document obtained from the internet that it alleged belonged to defendant. Defendant's attorney objected. The judge conducted a conference at sidebar to consider the admissibility of this evidence. After a short discussion, the judge asked the jury to leave the courtroom for a few minutes.

The conference continued and the discussion focused on how defendant's testimony would affect the admissibility of the document. The judge then ordered defendant to step outside of the courtroom, explaining:

I know a defendant has a right to be present during his trial, but I feel that we should be doing this at side-bar if [defendant] is going to be in the room. It's not fair to the State to discuss what options are available to the witness and how to respond to his questioning, and so I asked him to step out of the room, and if you have an objection to that I'll go to side-bar and he can stay in the room.

We are convinced that the court erred by ordering defendant to leave the courtroom. A defendant has a constitutional right to be present at every stage of his trial. State v. W.A., 184 N.J. 45, 53 (2005). Nevertheless, we are convinced that the error was harmless. The discussion between the court and counsel concerning the admissibility of the document was brief and the State ultimately chose not to question defendant about the document or seek its admission into evidence.

We have considered all of the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-6266-05T2

RECORD IMPOUNDED

February 10, 2009