STATE OF NEW JERSEY v. DIMAS HUMBERTO FLORES-ALFARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3969-08T43969-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIMAS HUMBERTO FLORES-ALFARO,

Defendant-Appellant.

_________________________________

 

Submitted June 9, 2010 - Decided

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0161.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2, of a fourteen-year-old victim and sentenced by the court to a five-year period of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a) (NERA). We reverse and remand.

On appeal, defendant contends:

POINT I

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION SEEKING A PSYCHOLOGICAL EXAMINATION OF N.B.

POINT II

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR AN IN CAMERA REVIEW OF N.B.'S SCHOOL RECORDS.

POINT III

THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATE THAT DEFENDANT'S CONFESSION WAS INVOLUNTARY.

POINT IV

DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S REFUSAL TO INCLUDE DEFENDANT'S PROPOSED JURY QUESTION NUMBER ELEVEN IN THE VOIR DIRE.

POINT V

DEFENDANT WAS PREJUDICED BY THE ADMISSION OF EXCESSIVELY DETAILED AND DUPLICATIVE FRESH COMPLAINT EVIDENCE.

POINT VI

THE TESTIMONY OF NURSE FALCON EXCEEDED THE SCOPE OF PROPER LAY OPINION AND CONSTITUTED IMPROPER EXPERT OPINION.

POINT VII

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.

In his pro se supplemental brief, defendant raises the following points for our consideration.

POINT I

DEFENDANT'S AUGUST 5, 2007 STATEMENT AS ATTACHED TO THE COURT RECORD IS INCOMPLETE. THE MISSING PORTION OF DEFENDANT'S STATEMENT REVEALS THAT DEFENDANT EXPRESSED TO DETECTIVE J. LOPEZ THAT HE DOES NOT UNDERSTAND ENGLISH VERY WELL. IN ESSENCE, DEFENDANT WAS NEVER PROPERLY GIVEN HIS MIRANDA[] RIGHTS AND INSTEAD WAS CAJOLED INTO PROVIDING AN INCRIMINATING STATEMENT IN A LANGUAGE HE DID NOT FULLY UNDERSTAND.

POINT II

DETECTIVE J. LOPEZ WAS BIASED IN HIS INVESTIGATION AND SOUGHT A CONFESSION FROM THE ACCUSED CONFIRMING THE STORY OF THE ALLEGED VICTIM.

We have considered the points raised in light of the record, arguments advanced, and applicable legal principles. With the exception of the arguments advanced in Point VI, the remaining arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I.

The evidence presented at trial relevant to our discussion disclosed that the sexual assault occurred while the victim, N.B., who resided in Florida, was visiting with relatives in New Jersey. According to her mother, she suffered from "communication and mental" disabilities. On August 4, 2007, she accompanied family members to Keansburg Beach to go crabbing. N.B. initially met defendant on the beach pier when defendant offered to sell crabs to her and her mother. Defendant gave N.B. two crabs and later invited her into the ocean to get more. N.B., who was not a good swimmer, left the pier and followed defendant into the ocean. She was wearing a swimsuit and, at some point after she entered the water, defendant moved N.B.'s swimsuit to the side, "put his hands between [N.B.'s] vagina," and then "stuck his penis in [her]." N.B. did not ask, nor did she want, defendant to do so. N.B. pushed defendant away and said "no." She began to swim towards the shore, but defendant grabbed her foot and then "kissed [her] cheek and bit [her left] ear." N.B. pushed defendant away again, and swam to the shore.

Meanwhile, her mother realized that N.B. was not in sight and began calling to her. N.B., hearing her mother, told her that she was coming. Her mother's call to N.B. awakened her brother who had been napping. He began looking for his sister and found her under the pier, out of the water. To him she appeared "scared and was just holding herself in an unusual way." Specifically, N.B.'s shirt was pulled over her knees, her legs were closed, and she was shaking and wet. She told her brother that "[defendant] put his thing inside of her."

N.B.'s mother arrived and, although she was unaware of what had happened, observed that N.B. looked "puzzled . . . [and] shocked[.]" N.B. told her mother what happened and the police were contacted. Defendant was still in the ocean at that point. When the police arrived, they were told about the assault and defendant was identified as N.B.'s attacker.

Officer Dennis Valle, Jr., one of the responding officers, testified that N.B. was "quiet . . . but also appeared to be upset." The officer spoke with defendant and subsequently took him to police headquarters.

N.B. was also taken to the police station and then later to the hospital for an examination. Following the examination, she returned to the police station where she provided a formal statement. N.B. initially told police that defendant touched her outside her bathing suit. At trial, however, she reiterated her claim that defendant touched her inside her bathing suit and then penetrated her.

Police placed defendant under arrest at the police station. He was held for approximately fourteen hours, mostly lying down in the holding cell, before being interviewed. Just before the interview, police provided breakfast and water to defendant. Prior to that time, no food or water had been provided, although defendant did not make a request for something to eat or drink during the preceding fourteen hours.

After breakfast, defendant agreed to provide a statement. He spoke in English and never asked the investigating police officer to repeat anything due to his inability to understand the officer's questions. After receiving his Miranda rights, defendant agreed to waive them and then gave a statement. Detective Jason Lopez, who conducted the interview, admitted he used certain techniques during the interview that may have led defendant to believe it was not illegal for him to have had sexual relations with a fourteen-year-old child. However, defendant appeared to understand the questions posed to him and never asked for an interpreter.

Defendant was asked "what happened . . . yesterday[?]" Without being prompted, defendant told Officer Lopez that "a lady with a little girl" was at the pier asking for help with crabbing. Defendant claimed N.B. removed her pants (which were over her swimsuit), entered the ocean, but went in too deep. He swam over to see if she needed help. After reaching her, N.B., who defendant thought was twenty to twenty-five years old, tried to kiss him, but he rejected her so she got mad at him. Defendant denied having sex with her, claiming that "nothing happened." He later admitted that he and N.B. kissed, after which N.B. grabbed his penis. Defendant told her to stop, but she "tried to grab me and pull it between her legs." N.B. pulled her bathing suit off to the side and she and defendant had intercourse "[j]ust a little bit," meaning, "not even a half a minute."

Lisa Falcon, who was certified as a sexual assault nurse examiner, examined N.B. on the evening of August 4, 2007, following the assault. She did not author a report and the State did not produce her at trial as an expert witness. Rather, she was produced as a lay witness. Before she commenced her testimony, defense counsel expressed concern that she might offer expert testimony although the State had not complied with Rule 3:13-3(c)(3). The trial court ruled that the State would not be permitted to elicit from her the basis of any opinion she might offer as to whether her observations during the examination of N.B. were consistent with N.B.'s report of the incident to her. The court limited Nurse Falcon's testimony to her observations during the examination and her opinion as to whether those observations were consistent with what N.B. reported, "because I feel that does fall within the ambit of [N.J.R.E. 701,] the rule for lay opinion."

Nurse Falcon testified that N.B. described the assault to her. She then proceeded to perform skin surface and gynecological examinations. She found a "small, round open area with dried blood on [N.B.'s] leg above her knee," but found no internal or external injuries in her vaginal area. She observed no redness, internally or externally, and no injury to N.B.'s hymen. N.B. reported no physical discomfort to her. Nurse Falcon testified, without explaining why, that her findings were consistent with the events N.B. described.

In addition, Nurse Falcon, over objection from defense counsel, testified that once a female begins to menstruate (a post-pubescent female), her vagina becomes more "pliable or stretchy," and she becomes better able to self-lubricate through the production of moisture in the vaginal area. She did not know if swab samples taken from N.B.'s vaginal area were positive for the presence of semen, and no evidence in that respect was presented by the State.

II.

The essence of defendant's argument in Point VI is that Nurse Falcon's testimony far exceeded the boundaries established by the court and constituted improper lay opinion. In particular, defendant points to that portion of her testimony in which she opined that the lack of injury suffered by N.B. was consistent with the assault she described and her explanation about the vagina of pre-pubescent and post-pubescent females. This testimony, defendant urges, was not the proper subject of lay opinion. Rather, defendant contends this aspect of her testimony constituted impermissible expert testimony without Falcon having been presented as an expert and qualified by the court, in advance of her testimony, to render an expert opinion. We agree.

First, the trial court explicitly declined to allow Falcon to testify as an expert witness. Hence, her testimony, by court ruling, was required to remain within what the trial court characterized as the "ambit of the rule for lay opinion."

Lay opinion is appropriate if the testimony offered is not "scientific, technical or [representative of] other specialized knowledge," as required by N.J.R.E. 702. Put another way, an individual can offer lay testimony if it is not of such an esoteric nature as to be beyond the understanding of the ordinary layperson. State v. Clowney, 299 N.J. Super. 1, 19 (App. Div.), certif. denied, 151 N.J. 77 (1997). Thus, lay opinion testimony that is "rationally based on [the witness's] perception," and would assist the jury in determining a fact in issue is admissible. N.J.R.E. 701; State v. Johnson, 120 N.J. 263, 293-95 (1990) (lay witness can compare footprints and testify that footprints found at scene match those of defendant). Accord State v. DeLuca, 325 N.J. Super. 376, 393 (App. Div. 1999) ("testimony of a police officer regarding his observations of footprints in the snow and his conclusion that the footprints were similar to the prints left by defendant's boots is not a matter of expert opinion"), aff'd as modified, 168 N.J. 626 (2001).

A layperson can offer an opinion regarding matters of common knowledge and observation. State v. Bealor, 187 N.J. 574, 586 (2006). However as defendant notes, lay opinion cannot cross into the realm of expert testimony so as to usurp the expert's function. State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).

Here, Nurse Falcon's testimony describing how the vagina becomes "stretchy" and more pliable as a female turns from pre-pubescent to post-pubescent is not a matter of common knowledge. Rather, it involves specialized scientific knowledge of the physiological changes in the vagina that occur in pre-pubescent and post-pubescent females. While her opinion may have been based upon her training and years of experience, it was nonetheless esoteric and well beyond the understanding of a layperson. More importantly, it was not an opinion that had been reduced to a report that had been timely provided to the defense in advance of trial.

Likewise, although the court permitted Nurse Falcon to opine that N.B.'s lack of apparent physical injury was consistent with what N.B. reported, in our view, this testimony went well beyond permissible lay testimony. It was an opinion expressed without any factual basis. It was not based upon Nurse Falcon's personal observations of N.B. Nor was this opinion of the kind that would ordinarily be understood by a layperson.

In short, the court erred in admitting the portions of Falcon's testimony to which defendant objected and also erred in permitting Falcon's testimony to exceed the boundaries of lay opinion testimony. We turn now to the question of whether the error was harmless.

Our standard of review requires us to give "substantial deference to [the] trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We generally will not disturb those rulings absent "a clear error of judgment[.]" Id. at 454; State v. Cook, 179 N.J. 533, 569 (2004). Moreover, under this standard we may not substitute our own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997)(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

We are persuaded that Nurse Falcon's testimony was pivotal. There were no eyewitnesses to the assault, N.B. suffered no physical injuries, and defendant offered a plausible explanation as to what happened. His version of what happened was reasonably supported by evidence since it was undisputed that N.B. was not a good swimmer and defendant testified that she appeared to be having trouble swimming. Under these circumstances, the court's rulings permitting Nurse Falcon to delve into areas that were clearly subjects calling for expert testimony represented a clear error of judgment resulting in a manifest denial of justice to defendant. As noted earlier, even assuming, based upon her training and experience, Nurse Falcon could have been qualified to render an expert opinion, the fact that she was not named as an expert witness on behalf of the State in advance of trial and authored no report that the State would have been required to timely provide to the defense as part of discovery, deprived the defense of the opportunity to mount a defense against the opinions she expressed at trial. That defendant provided a statement admitting, at some point during his interrogation, that he and N.B. had intercourse does not minimize the harm occasioned by the court's erroneous ruling, since defendant, at trial, denied both that his penis ever became erect or that it came out of his pants at any point, denied that he and N.B. had sexual relations, and claimed that his statement was obtained involuntarily. We are therefore constrained to reverse defendant's conviction and remand for a new trial.

 
Reversed and remanded for trial.

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

Although we find no abuse of discretion in the court's exercise of its discretion to decline to conduct an in camera inspection of the alleged victim's school records, we do think the decision whether to conduct the in camera inspection was a close call and we do not foreclose the trial judge's reconsideration of Point II following our remand.

(continued)

(continued)

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A-3969-08T4

RECORD IMPOUNDED

September 1, 2010