STATE OF NEW JERSEY v. SHERLOCK D. BAPTISTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3035-08T43035-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHERLOCK D. BAPTISTE,

a/k/a SHERLOCK D. BAPTIST,

Defendant-Appellant.

___________________________

 

Submitted May 25, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0526.

Pinilis Halpern, L.L.P. attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and (2)(c), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), N.J.S.A. 2C:14-2(c)(1), and N.J.S.A. 2C:14-2(c)(4), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge merged defendant's convictions for sexual assault with his convictions for aggravated sexual assault and sentenced him to a seven-year term for endangering, and a fifteen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on each count of aggravated sexual assault. The sentences are concurrent and include a term of parole supervision for life, pursuant to N.J.S.A. 2C:43-6.4.

Defendant appeals contending that the prosecutor's closing argument and the judge's exclusion of evidence proffered by the defense without an adequate hearing on admissibility require reversal of his convictions. He also contends that his sentence is excessive. We affirm.

The indictment alleged conduct that spanned a one-year period from January 2005 to January 2006. The victim of all the offenses was defendant's stepdaughter, A.T. The charges were segregated into counts covering two periods, one before and the other after her thirteenth birthday.

From January to August 2005, defendant lived in Elizabeth with A.T., her mother, M.T., and A.T.'s twin half-siblings who were then four years old; defendant is the father of the twins. M.T. would drive A.T. to school in the morning and defendant would pick her up at the end of the school day. M.T. worked until approximately 5:00 p.m. and, after picking up the twins, usually returned home at about 6:00 p.m.

A.T. testified that the first incident of sexual abuse occurred in January or February 2005; although she could not remember the specific date, she recalled that her school was closed for the day and she and defendant were home alone. Defendant adjusted her clothing, touched her breasts and sucked on her breasts and vagina. During the incident, he held her wrists and her legs apart. He did not use his tongue. A.T. stated that she was frightened and did not know whom to tell. When defendant finished, he told her not to tell anyone and asked her if she knew why not. A.T. replied, "because it might be a disaster," to which defendant responded, "There is no might. It will."

When M.T. returned home on that occasion, A.T. testified that defendant behaved as if "nothing happened[,]" which made her "feel guilty." At trial, A.T. explained that she did not tell her mother about the incident because she was afraid her mother would not believe her and because defendant was "a great provider" and "helped a lot around the house." She thought the "family would break apart" if she told anyone, and her mother's happiness was important to her.

On the following day, defendant picked A.T. up from school and again engaged in the same course of conduct. A.T. said she felt nervous but did not try to fight him because she knew "he wasn't going to stop." Defendant ceased his conduct that day when he heard M.T. returning from work.

A.T. testified that defendant repeated the sexual acts approximately twice a week for the remainder of the school year. During that summer, A.T. stayed with relatives in South Carolina; she had lived with them when she was baby and returned to live with her mother when she was about four years of age. Upon her return after the summer of 2005, the family moved to Edison.

When school resumed in the fall, A.T. was in seventh grade, and the same pattern occurred with M.T. dropping A.T at school and defendant picking her up. Defendant again engaged in an ongoing course of sexual conduct with A.T.

A.T. testified that in November 2005, the frequency of defendant's sexual abuse decreased because her teacher began driving her to school in the morning and driving her to the teacher's house in the afternoon where M.T. would pick her up. A.T. stated that, from then on, the sexual abuse occurred only when M.T. was out of the house with the twins. A.T. testified that the last episode of sexual abuse occurred after her thirteenth birthday in November 2005 and "right before the Christmas break" from school.

In January 2006, A.T. told a school counselor that defendant had been "touching" her. A.T. said she told the counselor about the abuse because she trusted her and wanted it to stop.

M.T. was called and informed of what A.T. had said. M.T. testified that she called defendant and confronted him with A.T.'s allegations. Defendant denied that he had done anything; M.T. stated that she did not believe him and demanded that he leave the house. When M.T. picked up A.T. from school that day, A.T. told her mother about the course of sexual abuse to which defendant had subjected her.

In February 2006, A.T., accompanied by her mother, spoke to Elizabeth Police Detective Juan Colon. A warrant for defendant's arrest was issued on March 22, 2006. On the following day, Detective Colon along with Police Detective Leon Davis, went to the construction site where defendant was employed. When Davis identified himself as a police officer, defendant fled; Davis pursued him, again identified himself as a police officer and told defendant to stop; however, Davis stated, defendant continued "running . . . real fast."

Davis called for back-up and Officer Mike Tower responded. Tower testified that he saw defendant jogging at a fast pace on a bike path; he yelled "stop, police," pursued defendant and caught him as he attempted to run into a wooded area.

Defendant was arrested and brought to Elizabeth Police Headquarters. Colon read the Miranda warnings to him; defendant signed a waiver and was then questioned by Colon and Davis. The interview was recorded on DVD; at trial, a transcript of the interview was admitted into evidence, with a copy given to the jury to read while they watched the DVD recording.

Colon confronted defendant with A.T.'s allegations that he had penetrated her vagina with his tongue and had sucked on her breasts. Colon asked defendant if he wanted to tell his side of the story, and defendant responded, "[w]ell, first of all I don't think I penetrated her." Defendant claimed he had only "played" with A.T., by running around the house grabbing, tickling, and hugging her. Defendant acknowledged that it was "a possibility" that in the course of playing with A.T. he had come into contact with her private parts; he admitted that he had put his face "down on her but . . . did not really penetrate her vagina."

The State presented testimony by Susan Cohen Esquilin, Ph.D., who was qualified as an expert in child sexual abuse; she described the child sexual abuse accommodation syndrome, and how it helped to explain why children often delay in reporting sexual abuse.

Defendant testified and denied sexually assaulting A.T. He admitted that he had "played" with her and had "tickled" her as he stated to the police, but denied that these touchings were sexual in nature. Defendant also stated that he had frequent "conflicts" with A.T. because she would lie to him about finishing her homework.

Defendant testified that the reason he fled when Colon and Davis came to his job site was because he owed $15,000 in child support arrears and did not want to be arrested for that. He denied hearing the detectives yell for him to stop, and said that if he had heard that, he "probably" would have stopped. Also, in contrast to Tower's testimony that he pursued and tackled defendant to handcuff him, defendant stated that when he heard Tower call out for him to stop, he "went down to [his] knees."

Defendant further testified that he first learned about A.T.'s sexual allegations when he was brought to Elizabeth Police Headquarters to make a statement. Defendant admitted that M.T. had asked him to move out of the home, but testified that it was because M.T. lived in Section 8 housing, and housing authority inspectors were coming to the residence and he was not supposed to be there. He had vacated the home on previous occasions for this reason and stated that he did not return on this occasion because even though he claimed to have a very good relationship with M.T., he did not want to continue the pattern of leaving the residence during future housing authority inspections. On cross-examination, defendant acknowledged that he had not mentioned the Section 8 housing situation to Colon or Davis during the interview he gave at police headquarters. On appeal, defendant raises the following contentions for our consideration:

POINT I

THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY VOUCHING FOR THE CREDIBILITY OF FOUR OF ITS FIVE WITNESSES, INCLUDING PLEAS TO THE JURY THAT A YOUNG VICTIM OF SEXUAL ASSAULT WOULD NOT LIE, THE VICTIM'S MOTHER WOULD NOT LIE TO HELP HER DAUGHTER, AND POLICE OFFICERS DO NOT LIE (NOT RAISED BELOW)

POINT II

THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY COMMENTING ON DEFENDANT'S FAILURE TO PRODUCE CERTAIN EVIDENCE (NOT RAISED BELOW)

POINT III

THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY MISREPRESENTING TO THE JURY WHAT WITNESSES SAID WHILE TESTIFYING (NOT RAISED BELOW)

POINT IV

THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY HIGHLIGHTING IN ITS CLOSING ARGUMENT THAT DEFENDANT'S EXERCISING HIS RIGHT TO TESTIFY WAS SOLELY TO "COME IN HERE AND LIE" BECAUSE HE HAD NO OTHER WAY TO DEFEND AGAINST THE CHARGES (NOT RAISED BELOW)

POINT V

DEFENDANT'S FIFTEEN YEAR SENTENCE IS EXCESSIVE AND REQUIRES A REMAND FOR RESENTENCING AND, REGARDLESS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)

POINT VI

THE TRIAL COURT ERRED IN UNDULY RESTRICTING THE SCOPE OF THE RULE 104 HEARING ON TESTIMONY OF PRIOR FALSE ALLEGATIONS OF SEXUAL ABUSE (NOT RAISED BELOW)

I

We first address the claim raised in Point II. We cannot agree that defendant was deprived of a fair trial by the prosecutor's comments on evidence he did not produce at trial. Defendant argues that the prosecutor, in summation, "improperly highlighted" that defense counsel failed to question M.T. to confirm his explanation for leaving their home. As noted above, M.T. testified that she told defendant to leave after she learned that A.T. had reported his sexual abuse, and defendant testified that she asked him to leave because of a pending Section 8 inspection and not because of A.T.'s allegations.

The prosecutor argued:

He starts out his story to us. "I was in a great relationship. I was with this woman. I never had a better relationship before in my life. We were together for six years, two kids together, rarely ever fought, happy family, playing all the time, everything is good. All of a sudden I get a call one day and she says there is going to be an inspection at her house. So that is it. I'm done. I pack my stuff, leave, leave my kids behind, and I'm done with her." Does that make sense? Is that really credible, that he's going to turn his back on all that they've worked on in the past six years on [sic] this happy life because he's going to have to pack a suitcase for two hours and leave the house? On top of that, okay, now, does anyone really believe there is a surprise inspection that was going to happen at that house? Like Section 8 really called up [M.T.] and said, "We are coming for a surprise inspection, you know, pack your stuff, look out"? Anyone really believe that happened? That is how it worked? Why didn't they ask [M.T.] that on the witness stand? "Was something going on with Section 8"? They didn't want that answer. They know what her response would have been. It's silly. Isn't it just a little bit of a coincidence that, "Holy moly, the day we are having a surprise inspection at our house for Section 8 just happens to be the day that our daughter reports to school officials that I'm sexually assaulting her." Little too big of a coincidence? His story doesn't add up, doesn't really make sense. Look at what he told the police.

[(Emphasis added).]

This argument is raised as plain error; therefore, we must determine whether the claimed error was "clearly capable of producing an unjust result . . . ." R. 2:10-2.

We note that defendant does not complain that the prosecutor questioned him regarding his failure to tell the police about the Section 8 "reason" M.T. told him to leave the residence, and he does not claim that the prosecutor commented on his post-arrest silence in summation. Rather, he claims that the prosecutor's summation comments on defendant's failure to cross-examine M.T. about this claim were improper, and that the impropriety was compounded by the prosecutor telling the jury that the defense "didn't want that answer" from M.T.

We are satisfied that these remarks by the prosecutor, which passed without objection at the time, did not deprive defendant of a fair trial. These comments did not amount to the prosecutor "impl[ying] to the jury that he possesse[d] knowledge beyond that contained in the evidence presented," State v. Feaster, 156 N.J. 1, 59 (1998), as defendant contends. Rather, the prosecutor urged the jury to draw an inference based on defense counsel's failure to ask M.T. a question to support his explanation for his departure from the home.

Any impropriety in the prosecutor's argument arises from the fact that the argument suggests that the jury can infer that M.T. would have contradicted defendant's explanation. The State's argument might be compared to one in which the State invites the jury to draw a negative inference based on a defendant's failure to call a witness who, under the circumstances, would be expected to give testimony favorable to the defense if defendant's version of the facts were true. Arguments of that sort are generally prohibited in a criminal case for several reasons including the danger of suggesting that the defendant has an obligation to present a defense. State v. Hill, 199 N.J. 545, 566-67 (2009).

In the context of this case, however, we cannot conclude that the argument was improper in any way or capable of leading the jury to reach verdict it would not otherwise have reached or of diminishing the State's burden of proof. The prosecutor made this argument in rebuttal to defense counsel's summation comments. Purporting to explain why defendant left M.T.'s home when M.T. asked him to do so, defense counsel had argued that defendant wanted to "protect" M.T. at that time; but now, at trial, defendant was "on the stand and he [was] not protecting anybody." The prosecutor's comments about defendant's limited cross-examination of M.T. on this point were responsive to that argument.

More important, given M.T.'s testimony about her reason for demanding that defendant leave the home, there was evidence to support the prosecutor's argument that the jury could infer she would not have given a different explanation that contradicted her testimony and supported defendant's claim. In short, there was evidence to support the argument and the inference urged by the State.

We are not persuaded by defendant's argument that our decision in State v. Jones, 364 N.J. Super. 376 (App. Div. 2003), compels a different result. In Jones, the defendant was convicted of three weapons possession offenses. The police made no attempt to obtain fingerprints from the weapons, and defense counsel commented in summation "that this omission was a weakness in the State's case." Id. at 382. In response, the prosecutor stated the following in summation:

[W]hile the defense never has any burden of proof, when they put on a case stop and ask yourself why isn't it they dusted the gun for prints to disprove that his fingerprints were on there? Maybe the defendant knows something we don't, that it is his gun.

[Ibid.]

Defense counsel objected to this comment, but the trial court overruled the objection and declined to issue a curative instruction to the jury. Ibid.

Under those circumstances, we considered the prosecutor's "remark to be so clearly erroneous and so capable of affecting the jury's deliberations that we [were] constrained to reverse defendant's convictions and remand the matter for a new trial." Ibid. We noted that the defendant "had no obligation to perform fingerprint tests upon the weapon to establish that it was not his, and the prosecutor should not have implied to the jury that defendant's failure to perform such testing indicated a fear of the possible results." Id. at 383.

In this case, there was no suggestion that defendant was required to come forward with affirmative proof of his innocence. It is entirely permissible for a prosecutor to "suggest to the jury that the defense's presentation of the evidence was unbalanced and incomplete." State v. Josephs, 174 N.J. 44, 120 (2002). That is was what was done here; the prosecutor was urging the jury to consider "the deficiency" of defendant's claim based on inferences available from M.T.'s testimony. Ibid.

II

We turn to defendant's other claims of prosecutorial misconduct, which are all raised for the first time on appeal, in Points I, III and IV of defendant's brief. The absence of an objection at the time of trial is important to the analysis of the these claims. "Generally, if counsel did not object, the remarks will not be deemed prejudicial." Josephs, supra, 174 N.J. at 120. Our courts recognize that when there is no objection at trial it "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made," and our courts also take account of the fact that by failing to object the defense "deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Consequently, when there is no objection at trial, a defendant is not entitled to relief unless the conduct was sufficiently prejudicial to produce an unjust result. R. 2:10-2; Josephs, supra, 174 N.J. at 124-25.

Defendant's objections to the State's closing argument are based on appellate counsel's perception that the prosecutor misstated and distorted the evidence in summation, vouched for the State's witnesses and suggested that defendant had a motive to lie. These arguments largely rest on a misunderstanding of what a prosecutor may and may not argue.

A prosecutor may present a closing argument based on the evidence introduced at trial and inferences available from that evidence. State v. Frisby, 174 N.J. 583, 593-94 (2002). Many of the discrepancies between the evidence and the prosecutor's argument to which defendant points are nothing more than fair comment based on the evidence. For example, defendant complains that the prosecutor said that A.T. did not disclose the abuse earlier because she was afraid her family would be destroyed. A.T. did not testify in those words, but she did testify that she was concerned that the "family would break apart." Accordingly, the prosecutor's argument was supported by the record and was nothing more than fair comment on the evidence. The prosecutor was not required to give a verbatim recitation of the testimony.

Defendant's other objections to misstatements by the prosecutor are simply mistaken. For example, defendant argues that there was no testimony to support the prosecutor's argument that M.T.'s happiness was important to A.T. Appellate counsel apparently overlooked the testimony that supported that argument. A.T. was asked whether her mother's happiness was important to her, and she responded in the affirmative.

In short, with one exception, defendant's objections to the prosecutor's arguments based on inconsistency with, or lack of support in, the evidence are without foundation. For that reason, those claims lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

The lone exception is one that, in our view, had no capacity to prejudice defendant or distract the jurors. The prosecutor made a comment about the running ability of the officer who apprehended defendant that had no evidential support. In the context of this trial and the State's summation, we fail to see how this embellishment had any capacity to prejudice defendant or distract the jury.

To be sure, not every prosecutorial misstatement warrants a new trial. Where a defendant fails to object to the challenged statements and thus deprives the trial judge of the opportunity to ameliorate any perceived errors, he must establish that the comments constitute plain error under Rule 2:10-2. Plain error must be "sufficient [to raise] a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached."

[State v. Feal, 194 N.J. 293, 312 (2008) (citations omitted).]

Defendant also argues that it was improper for the prosecutor to urge the jury to consider defendant's motive to lie and the absence of evidence that others had a motive to lie. It was not. As noted above, a prosecutor may point out a witness's interest "in presenting a particular version of events." Johnson, supra, 287 N.J. Super. at 267. The prosecutor's arguments, fairly read, refer to the lack of evidence suggesting A.T.'s motive to fabricate these allegations against defendant and the arresting officer's lack of interest in exaggerating the force he used to effectuate defendant's arrest.

In sum, we find nothing in the State's closing argument sufficiently egregious to permit us to conclude that defendant was deprived of a fair trial.

III

Defendant's contention that the trial court erred in prohibiting him from introducing testimony to establish that A.T. had made a prior false complaint of sexual abuse against a relative is "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, the judge held a hearing on this issue, pursuant to N.J.R.E. 104, in response to defendant's proffer that when A.T. was four years old, she returned from a stay in South Carolina and complained to her mother that she had been "sexually assaulted" there. M.T. testified that she had no recollection of "a conversation like that." Thus, defendant failed to prove "by a preponderance of the evidence . . . that a prior accusation charging criminal conduct was made by the victim and [that] the accusation was false." State v. Guenther, 181 N.J. 129, 157 (2004). We are satisfied that the trial judge properly excluded this evidence, for the reasons stated in his oral decision at the conclusion of the hearing. Contrary to defendant's claim, the judge did not deny him the opportunity to testify at the hearing; his attorney did not ask for an opportunity to present defendant's testimony or any other evidence.

IV

Defendant argues that his sentence is excessive. We find no error warranting modification of defendant's sentence.

The trial judge found three aggravating factors: the gravity and seriousness of the harm inflicted on the victim; the risk that defendant will commit another offense; and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(2), (3), (9). The judge found one mitigating factor, that defendant had led a law-abiding life before the commission of these offenses. N.J.S.A. 2C:44-1(b)(7). The judge determined that the aggravating factors clearly outweighed the mitigating factors and sentenced defendant to an aggregate term of fifteen years with an eighty-five percent parole disqualifier.

We reject defendant's contention that the trial judge improperly "double counted" as an aggravating factor "[t]he gravity and seriousness of harm inflicted on the victim . . . ." N.J.S.A. 2C:44-1(a)(2). Although the judge stated that he found this factor applicable based on "the youth of the victim," which is an element of all three crimes for which defendant was sentenced, he gave additional reasons. The judge explained:

[T]his defendant's criminal acts of [sic] such a long period of time on such a terribly young victim and in such a terribly selfish and hedonistic manner, not caring for the pain inflicted on this poor child not only as she grows up as a teenager and begins to date young men but as she lives her life, she will have flashbacks to this for her entire life and she probably will need to undergo her own counseling.

The judge's observations about the duration of the sexual abuse were clearly supported by the record. While perhaps more accurately characterized as evidence supporting a finding of the aggravating factor based on the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), we cannot conclude that the judge abused his discretion in assigning importance to the repetitive nature of the aggravated sexual assaults. The fact that the conduct took place regularly over a period of one year is sufficient to defeat defendant's argument that "there was nothing unique in this case to warrant" a finding of an aggravating factor on that basis.

Our review of sentencing decisions is limited in scope.

[A]ppellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

We are "not to substitute [our] assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010). Pursuant to this standard of review, it is clear there is no basis for disturbing the judge's decision to impose a sentence at the middle of the range for the first-degree crimes. Id. at 607-08; see also State v. Cassady, 198 N.J. 165, 180-81 (2009).

In sum, we discern no reason to disturb the trial judge's sentencing analysis, and will not "second-guess" his discretionary assessments. Bieniek, supra, 200 N.J. at 608. The sentence imposed was well supported by the record and the other relevant considerations weighed by the trial judge.

V

Defendant presents an additional argument not referenced in the point headings of his brief. He claims that the verdict was against the weight of the evidence. Because defendant did not move for a new trial on that ground, this argument is "not . . . cognizable on appeal . . . ." R. 2:10-1. In any event, A.T.'s testimony was clearly adequate to support the verdict.

Affirmed.

 

Although the judge did not address the sentence for endangering at the time of sentencing, the sentence is reflected on the judgment of conviction.

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

See 42 U.S.C.A. 1437f(a) (West 2003), establishing a housing assistance program for "low-income families . . . ."

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A-3035-08T4

RECORD IMPOUNDED

September 2, 2010