STATE OF NEW JERSEY v. PABLO NEIRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0126-08T40126-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO NEIRA,

Defendant-Appellant.

_________________________________________________

 

Argued February 3, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No. 07-05-00740-I.

Alan Dexter Bowman argued the cause for

appellant.

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).

PER CURIAM

Defendant, Pablo Neira, was convicted by a jury of second-degree attempted sexual assault, N.J.S.A. 2C:14-2c, second-degree sexual assault, N.J.S.A. 2C:14-2b, second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. He was sentenced to consecutive six-year terms on the two sexual assault convictions, the conviction for endangering the welfare of a minor was merged into them, and a concurrent one-year term of imprisonment was imposed for the fourth-degree crime of criminal sexual contact. Defendant has appealed.

On appeal, defendant raises the following arguments:

POINT I

THE PROSECUTOR'S STATEMENTS IN SUMMATION DENIED APPELLANT A FAIR TRIAL (Not Raised Below).

I. Improper Comments.

II. Applicable Law.

i. Appeal to Emotions and Sympathy.

ii. Call to Arms.

III. This Court Must Reverse.

POINT II

THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT EVIDENCE OF A LETTER WHICH THE VICTIM WROTE TO HER MOTHER YEARS AFTER REPORTING THE INCIDENT (Not Raised Below).

POINT [III]

THE TRIAL COURT ERRED IN ADMITTING HEARSAY EVIDENCE CONCERNING A MISSING AUDIO-RECORDING OF INCULPATORY STATEMENTS ALLEGEDLY UTTERED BY APPELLANT (Not Raised Below).

i. Factual Background.

ii. Appellant Was Denied a Fair Trial.

We affirm.

I.

The State offered evidence to demonstrate that the victim was born in the fall of 1986. Some time after 1996, defendant, a contractor, moved into the victim's house as the boyfriend of the victim's mother. While the victim was between the ages of 11 and 17, defendant repeatedly fondled her breasts, buttocks and vaginal area. Additionally, after the victim turned sixteen, defendant attempted anal penetration while the victim lay, asleep, on a couch. The victim did not report this sexual abuse to her mother, her brother or the police, although she did mention it to a girlfriend, pledging her to silence.

In the Spring of 2004, defendant accosted the victim while she was in the basement doing the laundry, pushing her on top of the clothes, fondling her breast and repeatedly kissing her around the neck. The victim fought back, grabbing the chain that defendant was wearing and attempting to choke him. Eventually, defendant desisted, apologized and left. At this point, the victim telephoned her mother, who was returning to New Jersey from an out-of-state religious retreat. The mother instructed her daughter to stay in the basement with the door locked and to await her return. Upon the mother's arrival at the house, the victim showed her the marks on defendant's neck made as the result of the victim's efforts to choke him with his chain. Although the mother screamed and cried and hit defendant, she did not call the police, nor did the victim's brother, who was also informed of what had taken place. The brother has consistently refused to believe his sister's statements regarding defendant's abuse, siding with defendant, instead. For a period of time after the basement incident, defendant left the residence. However, after a few months, he returned.

At the time of the basement incident, the victim did not tell her mother about the other incidents involving defendant, and in fact she said there were no others. However, when the victim turned eighteen years of age, she sought to obtain her own apartment. When her mother wanted to know the reason, the victim "blurted out, I can't be in a house with a guy who always bothers me and who always touches me." This statement then led to full disclosure of defendant's advances. Upon learning what had occurred, the mother insisted that her daughter lure him into confessing his crimes while she tape recorded their conversation. According to the daughter's testimony, the following took place:

She [the mother] told me that she was going to call [defendant] to the house stating that she needed something, and that she was going to be right upstairs, right at the top of the stairs, and that I was supposed to tell him that she left with my aunt to take my grandmother to the hospital because she got sick. So, that's exactly what I did. And in the meantime, I'm supposed to tell him, as he's trying to leave to go to the hospital to see them, is that I have to talk to him, I have to ask him some questions, I have to ask him what's going on. And I told him how it was because of him that I was leaving the house. It was because of him that I was moving out. And he kept telling me, no, don't leave, don't leave your mom.

And I told him, I said, why would you lie to my mom, why would you tell her this, that you didn't do anything. I said do you remember when I was on the couch, and you got on top of me and you abused me, and he says, I'm sorry, I'm sorry, I'm sorry, I'm a changed man, I go to church now, please forgive me.

On cross examination, the victim indicated that the recording also included defendant's confession to the basement incident. The recording itself was not produced at trial.

Despite defendant's alleged admissions, the mother did not call the police. However, shortly thereafter, the victim was thrown out of the house by her mother for lying. Three weeks later, on August 31, 2005, the victim contacted the police, and defendant was arrested.

At the age of twenty, the victim joined the military. She was on active duty at the time of trial.

II.

On appeal, defendant first claims prosecutorial misconduct in connection with her closing argument. There, the prosecutor told the jury at the conclusion of her summation:

Now, [the victim] told her friend . . . her secrets. [The friend] kept them because [the victim] wanted her to. She then told her mother her secret[s]. Her mother kept them too, but for a very different reason. It was more self-serving. [The victim] told [her brother] her secret. You know how [her brother] responded. He thought about himself. He didn't protect his sister. He didn't do anything for her. He said, let's keep it in the family. Well, what did the family do for her? Absolutely nothing.

Finally, [the victim] told you her secrets. . . .

* * *

And, remember, [the victim] is no longer here in this State. She has no connection, although she's reached out to her brother, who hasn't responded. She reached out to her mother, who didn't respond. [The victim] is not here anymore. She told you she came here to tell the truth. She came here to share her secrets with you.

Now, she told everyone her secret, and because this time she told you, and no one else did anything, it's now your time to do something with the secrets that she told you. And I thank you.

Although no objection was made to these statements at trial, on appeal, defendant claims that they constituted a wrongful call upon the jury's emotions and that they were akin to an impermissible "call to arms." We disagree, determining that no plain error occurred as the result of these comments. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

The Court has noted the leeway accorded to prosecutors in their summations, stating:

Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments. Harris, supra, 141 N.J. at 559. Justice Clifford's observations in his dissent in State v. DiPaglia, 64 N.J. 288, (1974), are worth repeating:

Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He 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.

[Id. at 305 (Clifford, J., dissenting)(citations omitted).]

[State v. Frost, 158 N.J. 76, 82-83 (1999).

Moreover, defense counsel's failure to object, as here, suggests that he "did not believe the remarks were prejudicial at the time they were made," and that failure "deprives the court of an opportunity to take curative action." Id. at 84 (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)).

In the context of appeals to the jury's emotions, we have held:

It is . . . improper to construct a summation that appeals to the emotions and sympathy of the jury. A prosecutor is entitled and expected to sum up the State's case forcefully. State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 141 N.J. 525, 559 (1995). The prosecutor is not entitled, however, to play on the emotions of the jury. State v. Martini, 131 N.J. 176, 247 (1993). Emotional appeals have the capacity to shift the jury's attention from the evidence and produce a verdict fueled by emotion rather than a dispassionate analysis of the evidence. Ibid.

[State v. Black, 380 N.J. Super. 581, 594-95 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).]

However, in Black, a case upon which defendant relies, the reference was to the extraction of a young child's eyes and brain during the course of an autopsy. Id. at 592. The remaining precedent cited by defendant is similarly focused on irrelevant or unfounded comments designed to impassion the jury. See State v. Williams, 113 N.J. 393, 448-52 (1988) (finding error, in a capital murder trial, in the prosecutor's focus on the victim's virtues and impending marriage and noting that because the comments served only to inflame the jury, they were improper); State v. W.L., 292 N.J. Super. 100, 105-08 (App. Div. 1996) (reversing conviction of a father for sexually abusing his four-year-old son, in part, because the prosecutor, in his opening, dwelled upon the innocence of the victim and stated, without introducing supporting evidence that, to terrorize the family, the father urged the son to pour roach spray down his mother's mouth when sleeping and to stab out the eyes of his cousins when visiting); State v. Lockett, 249 N.J. Super. 428, 434-35 (App. Div.) (finding reversible error in aggravated manslaughter trial as the result of the prosecutor's unsupported statement that defendant smiled as he took off from the scene of the accident where the victim was struck and killed, and that he did not care whether the victim lived or died), certif. denied, 127 N.J. 553 (1991).

In contrast, in the present matter, the prosecutor's portrayal of the victim as unaided by her family simply reflects the evidence presented at trial and potential reasons for the family's lack of action, suggesting that the mother determined not to contact the police because she relied on the defendant for economic support and that the brother was unwilling to assist because he had bonded with defendant. The fact that the victim had recently reached out to her mother and brother without a response likewise reflected evidence adduced at trial to which no objection was made. In our view, neither comment rose to the level of the appeals to the sympathies of jurors that led to reversals in the cases upon which defendant relies.

Further, we do not regard the comments set forth to have constituted a forbidden "call to arms." In numerous decisions, we have sanctioned prosecutors for urging juries to return convictions "in order to protect the community and send a message to the criminals." State v. Morais, 359 N.J. Super. 123, 132 (App. Div.), certif. denied, 177 N.J. 572 (2003); see also State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000) (prosecutor's "send a message" remark in summation was inflammatory and inappropriate); State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994) (prosecutor's comment that the jurors could "make a difference in [their] community" was a "call to arms" intended to promote partisanship incompatible with the duties of the jurors); State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992) (prosecutor's reference to the "war on drugs" going on in the community was improper). However, in the present matter, the prosecutor's comment that "it's now your time to do something with the secrets that she told you" can only be fairly interpreted as a simple call for conviction, without the broader overtones that make calls to arms inappropriate.

III.

At trial, the victim was allowed by the prosecutor, without defense objection, to testify to the contents of a letter that she had written to her mother in 2006 while in Army basic training. In that letter, she stated that she did not feel that her mother provided her with necessary support while defendant's abuse was ongoing; that she blamed herself for wearing provocative clothing; and that she did not care what happened at the trial. The victim testified that she had written that her mother could go ahead and be happy, and she could stay with defendant if she wished. She did not care any more, and indeed hoped that defendant would be acquitted. The victim was also permitted to testify that, in the letter, she asked her mother to contact her before her November graduation from basic training, after which she would be more difficult to reach. However, the mother had not done so.

On appeal, defendant argues that the letter, written long after the abuse ceased, lacked relevance and only served to "indicate to the jury that appellant was an evil influence in the family, who both abused [the victim] and turned her mother against her." In its opposition brief, the State acknowledges that the letter was improperly introduced in the State's direct case. The State argues that the letter would have been more appropriately introduced as rebuttal to the defense's position that the victim lied regarding defendant's conduct as revenge for getting kicked out of her home.

We agree that the letter was prematurely introduced. However, we have concluded that, if testimony premised on the letter had been adduced on rebuttal, its introduction would have been proper under N.J.R.E. 607 as a prior consistent statement rebutting an express or implied charge against the victim of improper motive. We find no plain error in the premature introduction of testimony that should have come before the jury later, since in either case, the jury would have had access to the same evidence. Moreover, we perceive little prejudice to the defendant in the introduction of this testimony, which mentions him and his deeds only in passing and instead focuses on the relationship between the victim and her mother, as well as the victim's hopes for the continued relationship between her mother and defendant.

IV.

As a final matter, defendant challenges as plain error the introduction of testimony by the victim about an audiotape made at her mother's instigation, in which defendant allegedly confessed to his crimes. In this regard, defendant claims that the victim's recital of a conversation with her mother as well as a conversation with defendant contained inadmissible hearsay. However, admissions allegedly made by defendant were admissible as statements of a party pursuant to N.J.R.E. 803(b)(1) and as statements against penal interest pursuant to N.J.R.E. 803(c)(25). Further, we are not satisfied that the mother's alleged instructions to her daughter to set up a conversation with defendant that might lead to a taped admission of wrongful conduct constituted hearsay. "As a general proposition, '[w]here statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay.'" Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456-57 (App. Div.), certif. denied, 142 N.J. 452 (1995)).

As a consequence of our review of defendant's arguments in light of applicable precedent, we see no real possibility of error "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

 
Affirmed.

The judgment of conviction erroneously states N.J.S.A. 2C:14-2c.

We discuss this aspect of the case further in section III of our opinion.

(continued)

(continued)

14

A-0126-08T4

RECORD IMPOUNDED

May 19, 2010