STATE OF NEW JERSEY v. D.D.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1682-09T4
STATE OF NEW JERSEY,
Argued November 28, 2011 Decided January 27, 2012
Before Judges Parrillo, Grall and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-0370.
Vincent J. Sanzone, Jr., argued the cause for appellant.
David M. Galemba, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Galemba, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Tried by a jury, defendant, D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve, N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b). He was also convicted of three counts of child endangerment, N.J.S.A. 2C:24-4(a). After appropriate mergers, defendant was sentenced to an aggregate term of forty years, with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and for the following reasons, we affirm.
This criminal episode spanned several years, from approximately January 2001 to September 2004; occurred at defendant's hometown of Vineland, where he lived with his wife and two daughters, as well as other locales; and involved three boys J.W., J.F. and B.M. who were between six and nine years old when they first met defendant, and who were thereafter sexually abused by him until they were about ten or eleven years old. Up to then, the boys frequently played at defendant's house, where the rules were more lenient than at their homes, and on weekends slept overnight in the basement, where much of the sexual abuse took place. They also played at least one season on the soccer team that defendant coached. Defendant and his wife became friendly with their parents who trusted him and had no qualms about letting their children spend time with him. Defendant bought gifts for the boys, and took them to restaurants (J.F., J.W., and B.M.), the mall (J.W. and J.F.), amusement parks (J.W.), and campgrounds (J.W.). At time of trial, J.W. and B.M. were fifteen years old and J.F. was fourteen years old.
According to the State's proofs, J.W., born on February 21, 1994, first met defendant on November 25, 2000, at the marriage of his father (J.W., Sr.), a truck driver away from home for weeks at a time, and his stepmother, Melissa, whom defendant had previously known. J.W.'s biological mother was a drug addict who was in prison "a lot."
J.W. began frequenting defendant's home in January 2001, when his stepmother was occupied with the care of her newborn. Eventually his visits there increased to staying overnight at least two weekends a month until he was eleven years old. The second time he slept over, in 2001, when he was only seven years old, defendant put his hands down J.W.'s pants as they sat in a chair. After that incident, defendant touched J.W. "[p]retty much every time [he] was there." Over time, the touching included oral sex. J.W. also performed these acts on defendant. At some point, the sexual contact progressed to anal penetration. J.W. and defendant also watched pornography on the television and computer.
While most sexual activities occurred in the basement, J.W. recalled an incident inside a tent in defendant's backyard. J.W. testified that while sharing the tent with B.M., B.M.'s younger brother, D.M., and defendant, he and defendant were "touching and rubbing and sucking" and trying to get B.M. involved. B.M. left the tent a "couple of times," but at some point, defendant and B.M. "messed around." J.W. also said that defendant "messed" with D.M., who was sleeping.
J.W. recalled another incident in the summer of 2003 during a camping trip near Six Flags, where he and defendant were joined by other men, including Robert Pelle and his son. J.W. and defendant had anal sex when they were alone in the tent. The next morning, defendant told J.W. that one of the other men had touched him during the night. On another occasion, J.W. said an assistant coach named Rick touched and photographed him when he was sleeping in the backyard.
B.M., born April 8, 1994, was six or seven years old when he first met defendant after his family moved to the same street and he became friends with one of defendant's daughters. His parents were going through a divorce at the time, and B.M. was "stressed out" and liked to go to defendant's house to watch television and play games. He initially played with defendant's daughters, but after a few months "hung out" more with defendant. B.M. did not stay overnight at defendant's house until about a year later, when J.W. "came into the picture."
B.M. testified that the first sexual contact by defendant took place in the backyard tent, when he was about eight years old. Defendant pulled down his pants and exposed his penis through the hole in his boxer shorts, and told B.M. to perform oral sex on him. B.M. said no, but defendant kept asking. Defendant and J.W. called B.M. a "chicken" and repeatedly said "[w]hat's the matter? Why not? What's the big deal over it?" B.M. eventually touched defendant's penis, and then left the tent. While this made him uncomfortable, B.M. thought it was a "one-time thing."
B.M. continued to sleep overnight at defendant's house because he liked "hanging out" with J.W. Although defendant did not always touch him, when touching did occur, defendant would be wearing boxers with his penis "sticking out." He would taunt B.M. by saying "just do it real quick once. Come on. What's the big deal." B.M. would finally touch defendant's penis as quickly as possible. Defendant also touched B.M.'s penis over and under his clothes, asked B.M. to expose himself, and took pictures of him on the webcam. B.M. acknowledged touching J.W. "maybe two times," and reported seeing J.W. and defendant laying naked together on the couch. He watched R-rated scary movies with "naked" parts, but denied seeing pornographic movies or pictures on defendant's computer.
J.F., born March 27, 1995, was eight or nine years old when he first met defendant at the Malaga trailer park, where he lived with his mother, Debbie Williams, her fianc at the time, his brothers D. and N., and his mother's two other sons who stayed with them on weekends. He and N. were riding their bicycles when defendant pulled alongside them in his truck after J.W., who was a passenger, recognized his classmate. J.W. introduced defendant as his uncle. They all went back to J.F.'s trailer, where defendant asked J.F. if wanted to play on his soccer team, and offered to drive him to practices and games because Williams did not drive.
The first time he went to defendant's house, J.F. had an "awesome" time playing video games in the basement with J.W., since he did not own any himself. He continued to visit defendant and, at some point, began staying overnight. One time, when he was sitting on a recliner in his pajamas, defendant asked if he was wearing underwear, and when he said yes, defendant told him that "[u]sually people don't wear them like that." J.F. took off his underwear, and then defendant pulled down J.F.'s pajamas and looked at his penis.
The next time J.F. stayed overnight, he and J.W. watched a pornographic movie with defendant on the basement couch. J.F. asked what was happening, and defendant explained "[t]hat's the dick going into the pussy." Then defendant started performing oral sex on J.F.; later "it got worse" as defendant tried different things such as anal penetration with his fingers. On one occasion, defendant stuck two fingers inside J.F.'s anus until J.F. told him to stop because it hurt. J.F. also sucked defendant's penis, which he said made him want to throw up. He saw defendant perform oral sex on J.W. J.F., however, did not recall touching J.W., although he said it might have happened. Sometimes he looked at pornographic websites on defendant's computer.
The sexual activity took place almost every weekend J.F. stayed overnight. J.F. explained that he continued to spend time at defendant's house because they did "fun things" together, such as playing new video games and going to the mall. He considered defendant a father figure, explaining that "I didn't have mine at the time," and he believed defendant "did what a dad should do with his son, other than the abuse."
In August 2004, the Division of Youth and Family Services (DYFS) removed J.F. and his younger brother from their home, after another brother accidentally set himself on fire "huffing" gas. DYFS placed the boys with Williams' sister, Wendy Rivera, and would not allow them to return home until Williams fixed up the trailer. Defendant and his wife helped clean the trailer, paid for two new windows, and purchased mattresses for the bunk beds the boys used at Rivera's home. Rivera, however, would not let defendant take J.F. on a camping trip. J.F. and his brother returned to their mother's home about two months later.
Discovery of the sexual abuse had its genesis in October 2004 when federal agents contacted Detective Sergeant Jasmin Calderon of the Cumberland County Prosecutor's Office, told her about their child pornography investigation targeting adult males, including defendant, and asked her, trained as she was in interviewing child sexual assault victims, to interview J.W., whom defendant had allegedly sexually assaulted. On October 21, 2004, Calderon interviewed J.W. after obtaining his parent's permission. She also interviewed B.M. on October 25, 2004.
J.W. and B.M. were ten years old at the time of their interviews.1 Both boys told Calderon that defendant was their soccer coach, that they went to his house for parties, to swim in his pool, to play videogames and watch scary movies, and slept overnight in his basement on chairs or couches while defendant stayed on another couch in the back of the room. Both boys denied that defendant ever touched their private parts, and J.W. denied watching movies with naked people, or seeing "bad things" on defendant's computer. They claimed defendant never told them to keep secret anything he had done.2
Calderon doubted the boys' denials based on their body language during the interviews. B.M. was constantly "moving his fingers around," bouncing or tapping his leg, and opening and closing his legs. J.W. became fidgety when asked about the alleged abuse, and seemed aware, without being told, that the interview was taped. She explained that both boys had a "big hurdle to overcome" before admitting abuse, especially given that defendant had provided them with gifts, entertainment, and activities. Calderon, however, took no further action because the federal agency was handling the investigation.3 J.W.'s and B.M.'s parents were evidently satisfied by their sons' denials to Calderon and continued to allow them to see defendant.
Williams, J.F.'s mother, however, became concerned when one day in the fall of 2004, defendant picked up her son to go to McDonald's and upon his return home, she learned he had not gone there. To find out the truth, she told J.F. that defendant had already told her "everything." J.F. then mentioned the sleepovers at defendant's house, but asked his mother not to tell anyone because he did not want to get defendant in trouble. At that point, Williams decided to tape their conversation without his knowledge. She convinced him to "keep going" and tell her what had happened.
Afterwards, Williams went to defendant's house to talk with his wife about stopping the overnight visits, and took the tape with her. She described defendant's wife as distraught. When she confronted defendant, he made an excuse that he was sexually abused as a child. Although Williams obviously was upset, she did not report the abuse. Instead she went to a motel, paid for by defendant, where she used cocaine and stayed high for several days. Rivera described her sister's behavior around this time as "bizarre," and thought she might be having a nervous breakdown. Williams denied asking defendant or his wife for money in exchange for the tape.
Several months later, in June 2005, Rivera brought her nephew J.F. to her home and tricked him into providing details by telling him that his mother already told her. As a result, on June 10, 2005, Rivera and her boyfriend took J.F., who was ten years old at the time, to the Vineland Police Department to report the sexual abuse. They met with Detective Louis Negron, who had investigated numerous child sexual assault cases since 1990. Negron first interviewed Rivera, who told him what J.F. had disclosed. He then spoke to J.F. off the record before conducting a taped interview, but had not asked leading questions during the initial unrecorded session or revealed any facts from his investigation.
Although nervous and embarrassed, J.F. was forthcoming about his relationship with defendant. He said that the first time he slept overnight, defendant admitted to touching J.W.'s private parts, and warned J.F. not to tell anyone or defendant would go to jail. The next night, for the first time defendant touched J.F.'s penis while they were sitting together on a chair in the basement watching a "disgusting" movie with naked people. J.F. saw defendant do the same thing to J.W. The following night, defendant pulled off J.F.'s boxers and engaged in oral sex. After that weekend, defendant continued to inappropriately touch J.F. and J.W., and, one time, encouraged the boys to touch each other, which they did. J.F. also touched defendant's penis.4
Based on this information, Negron went to J.W.'s home on June 16, 2005, but his parents refused to allow Negron to interview their son because he had been interviewed six months earlier and had denied any abuse, and because they were still friends with defendant and his wife. However, J.W., who was eleven years old at the time, did confide in his father about his sexual encounters with defendant after learning that J.F. had made similar disclosures. He stopped seeing defendant and subsequently, on June 27, 2005, told Negron about his relationship with defendant.
Specifically, J.W. confirmed to Negron that defendant engaged in oral sex and anal penetration, sometimes using "strawberry cream" or saliva, and that defendant touched him in a "bad way" almost every time he stayed overnight. He admitted performing oral sex on defendant, but denied touching J.F.
J.W. also told Negron about the camping trip with defendant and other men on Labor Day in 2003. They played a game the first night where the men dared him to French kiss defendant, which he did. Consistent with his trial testimony, he told Negron that the first night of the camping trip he slept with defendant in a tent and that the next morning defendant said that one of the men had rubbed his "private." The next night, defendant put his private "up my butt." After the trip, defendant went to J.W.'s house and asked him not to tell anyone about the camping incident.5 J.W. admitted that he told Calderon nothing had happened because he did not want to get defendant in trouble.
Negron found J.W. very forthcoming, and his statement consistent with the one given by J.F. Both boys also gave similar descriptions of defendant's house. Based on their statements, defendant was arrested on June 28, 2005, and released on bail.
Meanwhile, when the allegations had resurfaced, defendant told B.M.'s father, Chad, that J.F.'s mother was blackmailing him with a tape. At first, Chad believed his friend, but after defendant's arrest, Chad confronted B.M. Although B.M. initially denied anything had happened with defendant, Chad noted that his son's "demeanor wilted like a flower." After telling his son that another boy had confessed, B.M. decided there was nothing to hide and told the truth.
Chad went directly to defendant's house to tell defendant's wife what had happened "because we're friends." When defendant was contacted by phone, Chad relayed what B.M. had told him. Defendant denied everything until Chad mentioned the backyard camping, at which point defendant became silent. Chad told defendant that he loved and trusted him, that defendant had a sickness, and that he needed to get help. Defendant replied that Chad was right, that he had put the boys through enough and needed to do the right thing, but asked Chad to give him until morning to turn himself in to the police. Chad initially agreed, but changed his mind and called the police. At approximately 1:24 a.m. on July 21, 2005, Patrolman Vincent Donoflio interviewed B.M. at his house. At 3:00 a.m., Negron was informed that defendant had been arrested again.
After obtaining permission from B.M.'s parents, Chad and Melissa, Negron interviewed the boy at his home in the presence of his parents. After initial denials, B.M. admitted that defendant had touched him in a bad way. He told Negron about the incident in the backyard tent and other sexual encounters in the basement, explaining that defendant and J.W. would repeatedly call him a "chicken" when he refused to do something, and that he eventually did whatever they asked so they would stop teasing him. B.M. also confirmed that defendant told the boys to touch each other, and that defendant took pictures of him which defendant showed to friends. He said defendant usually wore boxer shorts with "his private part . . . hanging out all the time." According to B.M., defendant had asked him to keep their secret or defendant would be taken away from his children. As with the other boys, B.M. did not tell Calderon the truth eight months earlier because defendant was so nice to him and he felt badly for him.
The next day, July 22, 2005, Negron returned to J.W.'s house to corroborate what he had heard from J.F. and B.M. In this second interview, J.W. denied touching J.F. or B.M. but admitted that defendant had shown pornography to the boys. J.W. also mentioned for the first time that defendant used a vibrator on him, and that defendant performed oral sex on D.M. in the backyard tent.6
At trial in August 2009, J.W. testified that about a month before Calderon took his statement, defendant approached him at home and asked him to keep their relationship a secret. J.W. agreed and denied everything to Calderon because he considered defendant a second father, whom he loved and did not want to go to jail. Contrary to his original feelings, at trial J.W. acknowledged that the sexual incidents with defendant were wrong and that he wished they never happened. Although counseling had helped "[a] little bit," he still did not like to talk about it. B.M. similarly testified that defendant had asked him to keep their relationship a secret and therefore he had denied everything to Calderon. He told his father what happened only after learning that another boy had made a disclosure. According to his father, B.M. is "pretty stoic and to himself," but has a lot of anger and does not like to talk about his feelings.
Consistent with the testimony of these two boys, J.F. said defendant told him not to tell anyone about what took place between them. J.F. admitted lying to investigators because he cared about defendant; however, at some point, J.F. told his mother about the abuse, but did not know that she had recorded their conversation. He was embarrassed and uncomfortable talking about what happened and had nightmares "all the time."
In this regard, his mother testified that although J.F. had "come a long way," he was still undergoing counseling and dealing with "a lot of issues." He got in trouble at school, had to leave numerous times, and required a private tutor to continue his education. He eventually saw a doctor who prescribed medication.
In addition to the three victims and their relatives, the State produced Robert Pelle, who first met defendant on a website where men attracted to young boys make social contacts with each other online and at "get-togethers." Beginning in early summer 2003, Pelle and defendant started having regular online conversations or "chats" on Yahoo! Messenger, wherein Pelle identified himself as "RobertP182" or "Rob," and defendant was "Wonder_Of_It" or Dave.
After a few months, in August 2003, Pelle met defendant in person on a camping trip with other men from the website as well as with J.W. and Pelle's son. At the campsite, Pelle observed J.W. "masturbating" defendant inside the tent. Thereafter, Pelle and defendant became friends and formed a relationship outside the group. Pelle lived in nearby Belmar, shared common interests with defendant and, at thirty-eight years old, was close in age to defendant. The two men socialized together. Pelle even brought his son over to defendant's house and defendant and J.W. visited Pelle at his home as well as at the mall.7
Pelle and defendant continued their online discussions on Yahoo! Messenger, and sometimes communicated by webcams. The chats included discussions about how to avoid getting caught by authorities. For example, defendant advised Pelle to remove and hide his hard drive, and replace it with another. He also told Pelle to keep his interests and activities private, and to "[j]ust act normal, like a regular family man should act," and in another chat, that he would not bring J.W. to Pelle's house if the "young guys" from the website, who were less discreet, were going to be there. In yet another chat, defendant explained that he liked "horny, friendly, smart boys" and referred to a particular boy, whom Pelle identified as J.F., saying: "Now, I'm going to try to get this new kid to come around. I see good things there." In late 2003, Pelle received a Yahoo! Messenger file exchange from defendant with a naked picture of J.W.
In March 2004, Pelle began his "exit strategy" from the website group when one of its members was arrested. He had already deleted earlier chats from his hard drive using a "wiping program" provided by another member of the website group.8 According to Pelle, defendant had started to extricate himself from the group at least four months earlier, and had warned Pelle several times that its members were "too radical, too dangerous."
Following their last chat on March 21, the Prosecutor's Office seized Pelle's computer. Pelle remained friends with defendant until Pelle's arrest on September 20, 2004, after which they did not speak. He was later charged in a federal indictment for receiving and distributing child pornography, possessing child pornography on his computer, and transporting a child across state lines to engage in sexual activities. In April 2007, Pelle accepted a plea agreement, and on June 2007 pleaded guilty to two counts. On September 6, 2007, he was sentenced to seventy-two months in prison. Meanwhile, in April 2005, Pelle was charged in a state indictment with various sexually related crimes involving a child. On September 10, 2007, he pleaded guilty to one count of sexually assaulting his son and, on December 7, 2007, received a sixty-month term to run concurrently with his federal sentence.
Pelle acknowledged that he met with the Prosecutor's Office on August 28, 2007, but denied receiving favorable treatment in return for his cooperation in connection with the case against defendant. Pelle stated that no promises were made to reduce his federal or state sentences, although he was hopeful.
At the conclusion of the State's proofs, the defense presented six character witnesses five relatives and one friend who testified as to defendant's reputation as truthful, trustworthy and helpful. Additionally, two other family friends who had visited defendant and stayed overnight in his basement testified that they never saw any sexually inappropriate behavior occur while there.
Defendant testified and denied sexually assaulting any of these children. He also denied showing them pornographic material; photographing them in a state of undress or sending such pictures to Pelle; ever seeing them naked or allowing them to see him naked or observing them engage in any sexual activity amongst themselves; telling them to lie for him; or visiting the website mentioned by Pelle or communicating with Pelle on any online service.
Defendant did admit taking J.W. to a family campground in Jackson where they met Pelle and his son, but said no other men joined them, and denied sexually touching J.W. on that trip. Because J.W. and Pelle's son became friends, he gave Pelle his telephone number and the two men met five or six times at each other's houses after that weekend, two or three times with J.W.
Defendant acknowledged that the boys stayed overnight at his house, but that he was never in the basement "just with the boys." He explained the circumstances in which each boy came to his home. Melissa asked him and his wife to watch J.W., so she could "deal with the baby," and that she continued to ask him to watch J.W. at least 100 times over three years. J.F.'s mother was a drug addict, her house was a "shambles," and she would regularly ask defendant to take him for the weekend. B.M. first stayed overnight when his parents were "going out." While he also acknowledged buying gifts for the boys, defendant did not do so as to entice them to do anything. Similarly he bought bunk beds and dressers for J.F. to help out his mother, not to ingratiate himself or gain her trust.
Defendant first learned about J.F.'s taped conversation when he gave the boy's mother a ride on January 8, 2005. According to defendant, Williams was addicted to drugs and alcohol, and tried to use the tape to blackmail him. He listened to the tape and supposedly offered to go to the police, but Williams cried and apologized. After her sister took J.F. to the police, Williams allegedly asked defendant not to mention the tape.
Evidently crediting the State's proofs, the jury convicted defendant of the offenses charged. On appeal, he raises the following issues:
I. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO PRESENT HIS VERSION OF THE FACTS AND TO CONFRONT WITNESSES AGAINST HIM [AND HIS RIGHT OF CONFRONTATION] WAS VIOLATED WHEN THE COURT EXCLUDED THE DEFENSE FROM CROSS-EXAMINING J.F. AND HIS MOTHER ON THE "BLACKMAIL" TAPE WHICH J.F.'S MOTHER SECRETLY RECORDED TO EXTORT MONEY FROM THE DEFENDANT. (Raised Below).
A. THE AUDIO TAPE OF J.F. RECORDED BY HIS MOTHER, [WILLIAMS] BECAME AN IMPORTANT PIECE OF EVIDENCE FOR THE STATE WHEN THE DEFENDANT COULD NOT CONTEST ITS CONTENTS THUS DENYING THE DEFENDANT A FAIR TRIAL. (Raised Below).
II. THE YAHOO CHATS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE NO PROPER FOUNDATION WAS LAID, AND NO CHAIN OF CUSTODY WAS ESTABLISHED. (Not Raised Below).
III. THE STATE WITHHELD IMPORTANT EXCULPATORY INFORMATION IN THIS CASE BY NOT DISCLOSING IMPORTANT IMPEACHMENT INFORMATION REGARDING ROBERT PELLE'S SENTENCING CONSIDERATIONS WITH HIS OPEN FEDERAL AND STATE CRIMINAL CHARGES. (Not Raised Below).
IV. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO PRESENT HIS THEORY AND VERSION OF THE FACTS WHEN HE WAS DENIED HIS ABILITY TO CROSS-EXAMINE J.W. ON J.W.'S PRIOR ALLEGED HOMOSEXUAL EXPERIENCE WITH ANOTHER YOUNG BOY. (Raised Below).
V. THE TRIAL COURT ERRED IN NOT ALLOWING DEFENSE COUNSEL TO RECALL J.W. FOR THE PURPOSE OF IMPEACHING HIM WITH THE AUDIO VISUAL TAPE OF D.M. (Raised Below).
VI. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DURING THE TESTIMONY OF J.W. PROSECUTOR DANA PALEY GAVE HEAD, FACIAL AND HAND SIGNALS TO THE WITNESS IN THE ATTEMPT TO COACH THE WITNESS AND ELICIT FAVORABLE TESTIMONY FOR THE STATE. (Not Raised Below).
VII. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE PROSECUTOR DANA PALEY ENGAGED IN WITNESS TAMPERING FOR THE SECOND TIME WHEN SHE VIOLATED THE SEQUESTRATION ORDER BY INFORMING A DEFENSE WITNESS WHAT THE TRIAL TESTIMONY WAS AS IT RELATED TO HIM, AND CRIMES THAT HE MAY HAVE COMMITTED. (Not Raised Below).
VIII. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DETECTIVE JASMIN CALDERON WHO TESTIFIED AS A FACTUAL WITNESS, IN FACT TESTIFIED AS AN EXPERT WITNESS FOR THE STATE, AND GAVE AN ULTIMATE OPINION REGARDING THE CREDIBILITY OF THE ALLEGED VICTIMS, AND ABOUT CHILD ABUSE ACCOMMODATION SYNDROME. (Not Raised Below).
A. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DETECTIVE CALDERON TESTIFIED AS AN EXPERT WITNESS BUT NO EXPERT WITNESS JURY CHARGE WAS GIVEN BY THE TRIAL COURT. (Not Raised Below).
IX. DEFENSE COUNSEL'S TRIAL ERRORS WERE SO NUMEROUS THAT HIS PERFORMANCE WAS PER SE INEFFECTIVE THUS DENYING THE DEFENDANT A FAIR TRIAL. (Not Raised Below).
A. DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE WAS NOT FAMILIAR WITH THE COURT RULES AND WAITED UNTIL THE DAY OF TRIAL TO INFORM THE COURT AND STATE THAT THE DEFENSE WOULD BE CALLING TWO EXPERT WITNESSES TO TESTIFY ON BEHALF OF THE DEFENDANT. (Not Raised Below).
B. DEFENSE COUNSEL WAS INEFFECTIVE AS A MATTER OF LAW BECAUSE HE WAS UNFAMILIAR WITH JUDGE FARRELL'S PREVIOUS RULING IN THIS CASE. (Not Raised Below).
C. DEFENSE WAS INEFFECTIVE WHEN HE PLAYED AUDIO TAPES OF THE ALLEGED VICTIMS WHICH JUDGE FARRELL HAD PREVIOUSLY RULED WERE INADMISSIBLE BECAUSE THEY WERE HIGHLY PREJUDICIAL AND CONTAINED IMPERMISSIBLE HEARSAY. (Not Raised Below).
D. DEFENSE COUNSEL WAS SO INEFFECTIVE THAT HE ATTEMPTED TO ADMIT INTO EVIDENCE HIGHLY PREJUDICIAL HEARSAY POLICE REPORTS. (Not Raised Below).
E. DEFENSE COUNSEL WAS SO DEFICIENT AND INEFFECTIVE THAT HE DID NOT COMPLY WITH THE RAPE SHIELD LAW, AND HENCE, THE DEFENDANT WAS NOT PERMITTED TO INTRODUCE A PRIOR SEXUAL EXPERIENCE OF J.W. (Not Raised Below).
F. DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO CRITICAL LEADING QUESTIONS BY THE PROSECUTOR DURING THE DIRECT EXAMINATION OF B.M. (Not Raised Below).
X. THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE OR IN THE ALTERNATIVE AN EVIDENTIARY HEARING WHILE CRITICAL WITNESSES WERE AVAILABLE FOR TESTIMONY. (Not Raised Below).
XI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
XII. THE COURT ERRED BY DENYING DEFENDANT HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL. (Defendant's supplemental pro se point I).
XIII. THE STATE'S BRIEF WAS SUBMITTED OUT OF TIME. (Defendant's supplemental reply pro se point I) (not raised below).
We begin by addressing the arguments in Points I, III, VIII and XI that counsel emphasized at oral argument.
Defendant contends the court erred by prohibiting him from using the taped conversation between J.F. and his mother for cross-examination purposes in violation of his Sixth Amendment right to confront witnesses against him. We disagree.
Some background is in order. At the March 2007 pretrial hearing, the parties stipulated that the State would not use in its case-in-chief an enhanced tape of the conversation secretly recorded by J.F.'s mother sometime prior to July 15, 2005. After listening to the tape, the motion judge indicated portions of the recording were inaudible and noted that the jury would not comprehend "one word" on the tape. He also found "major flaws" with the original transcript of the enhanced tape, noting that the transcription was inaccurate and that it should not be given to the jurors if they could not understand anything on the tape. Neither party objected.
In his August 30, 2007 oral decision in the matter, the motion judge ruled that the enhanced tape was not admissible under N.J.R.E. 803(c)(27) (allowing statements by children under the age of twelve relating to sexual misconduct against them) because the tape was untrustworthy, as previously stipulated by the parties. The judge, however, ruled that defendant could use the enhanced tape to impeach J.F.'s credibility if he chose to testify, and that the State could use it to rehabilitate their witness.
Evidently, the judge directed the State to submit a proposed form of order under the five-day rule, Rule 4:42-1(c), and on September 14, 2007, the prosecutor submitted such an order to the court and opposing counsel. Defense counsel did not raise any objection within the prescribed period, and the judge signed the order, which differed from the oral decision only in making no allowance for its admissibility for any other purpose.
At trial on August 4, 2009, presided over by a different judge, defense counsel wished to use the enhanced tape in his cross-examination of Negron. The State argued that the tape was inadmissible for all purposes, while defense counsel disagreed, claiming the motion judge earlier ruled that the tape was admissible for impeachment purposes. The trial judge relied on the written order, to which counsel had not theretofore objected. When counsel persisted, the judge allowed him the opportunity to prove the order was wrongly written. Although defense counsel then stated his intention to obtain a transcript of the motion judge's oral decision, and asked to recall Negron if the written order was inconsistent, he never produced the transcript.
On August 6, 2009, defense counsel referred to the enhanced tape while cross-examining J.F. The State again objected. Following a discussion at sidebar, the court told the jury that it would not hear the tape because the tape was inadmissible and contained "many inaudible and basically unintelligible" parts. Defense counsel, however, was permitted to cross-examine J.F. about the making of the tape, the questions his mother asked, and his answers.
And on August 12, 2009, the court similarly ruled that the State could not use the transcript of the enhanced tape to cross-examine defendant. The court noted that J.F.'s mother had described the types of questions she asked her son, and that it had limited some questioning by defense counsel on this same issue. Defense counsel did not object and called the decision "appropriate."
A trial court's determination on the admissibility of evidence is entitled to great deference, and is reviewed under the abuse-of-discretion standard. State v. Fortin, 189 N.J. 579, 597 (2007). A reviewing court should not disturb an evidentiary ruling unless it is "'wide of the mark.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
A trial court may admit "sound recordings" as long as
the speakers [are] identified and . . . (1) the device was capable of taking the conversation or statement, (2) the operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions,
. . . the statements were elicited voluntarily and without any inducement.
[State v. Driver, 38 N.J. 255, 287 (1962).]
A "trial judge should listen to the recording out of the presence of the jury . . . [to] decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, . . . whether it contains any improper and prejudicial matter which ought to be deleted." Id. at 288.
Here, the motion judge listened to the enhanced tape and found it unintelligible and inaudible. He, therefore, properly exercised his discretion to exclude the tape on these grounds as well as the stipulation of counsel.9 So for this reason alone, we discern no error in the trial judge's expanded decision to exclude the tape for all purposes, including impeachment and rebuttal.
There is yet another reason why the court did not abuse its discretion in excluding the evidence on cross-examination. While a criminal defendant has the constitutional right to confront witnesses, this right does not guarantee unlimited cross-examination. State v. Harvey, 151 N.J.117, 187-88 (1997), cert. denied, 528 U.S.1085, 120 S. Ct.811, 145 L. Ed.2d 683 (2000); State v. Messino, 378 N.J. Super.559, 583 (App. Div.), certif. denied, 185 N.J.297 (2005). The scope of cross-examination rests within the sound discretion of the trial judge. Messino, supra, 378 N.J. Super.at 583. An appellate court should not interfere absent a showing of "'clear error and prejudice.'" Ibid.(quoting State v. Gaikwad, 349 N.J. Super.62, 87 (App. Div. 2002)).
Here, defendant claims that the enhanced tape was relevant to impeach the trial testimony of J.F., Williams, and Rivera under N.J.R.E.607. N.J.R.E. 607 provides in pertinent part: "Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility . . . ." Nevertheless, defendant fails to show the relevance of this tape to either J.F. or Rivera. As to Williams, defendant argues that the tape was relevant to prove that she exerted pressure on J.F. to further her scheme to blackmail him. Defendant, however, had ample opportunity to cross-examine Williams and J.F. at trial about the tape and its contents.10 Moreover, Williams admitted that she lied to J.F. about defendant so he would tell her the truth, that she made the tape after J.F.'s initial disclosure about the sleepovers at defendant's house, and that she secretly recorded their conversation so he would tell her everything.
While we recognize that the original determination by the motion judge allowed for the tape's limited use, and that where there is a conflict between the oral decision and written order, the former controls, Heinl v. Heinl, 287 N.J. Super.337, 353 (App. Div. 1996); see alsoState v. Vasquez, 374 N.J. Super.252, 270 (App. Div. 2005), the fact remains that the trial judge was free to revisit the issue and decide for himself the evidentiary issue at trial, when a more fully developed record was available. Johnson v. Cyklop Strapping Corp., 220 N.J. Super.250, 257 (App. Div. 1987), certif. denied, 110 N.J.196 (1988); D'Atria v. D'Atria, 242 N.J. Super.392, 401 (Ch. Div. 1990).
Moreover, under these particular circumstances, it would be unfair to grant defendant a new trial when the conflict could easily have been resolved if defendant had produced the transcript of the oral decision, as promised. SeeState v. Krivacska, 341 N.J. Super.1, 43 (App. Div.) (holding it would reward litigant to rerun a trial when a mistake involving a limiting instruction could have been cured on request), certif. denied, 170 N.J.206 (2001), cert. denied, 535 U.S.1012, 122 S. Ct.1594, 152 L. Ed.2d 510 (2002).
Finally, even if the taped conversation between J.F. and his mother should have been admitted to impeach or support witness credibility, the error was harmless. There was overwhelming evidence ofdefendant's guilt, and any prejudice caused by the failure to allow defendant to use this tape during cross-examination of witnesses was unlikely to mislead the jury into arriving at a result it otherwise might not have reached. Marrero, supra, 148 N.J. at 492-93; see also State v. Macon, 57 N.J. 325, 336 (1971).
Defendant also contends, for the first time on appeal, that the State failed to disclose exculpatory evidence that Pelle received favorable treatment at sentencing in exchange for his testimony, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed.2d 215, 218 (1963). There was no error here, much less plain error.
In a criminal case the prosecution must disclose all evidence that is favorable to the accused and material either to guilt or to punishment. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed.2d 788 (1999). This rule is "invoked where information is discovered after trial 'which had been known to the prosecution but unknown to the defense.'" State v. Carter, 91 N.J. 86, 111 (1982) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed.2d 342, 349 (1976)). "Evidence impeaching the testimony of a government witness falls within the Brady rule when the reliability of the witness may be determinative of a criminal defendant's guilt or innocence." Carter, supra, 91 N.J. at 111 (citations omitted). Thus, Rule 3:13-3 recognizes that a prosecutor has an obligation to disclose prior promises or agreements made by him or her to a State's witness relating to leniency of treatment or a specific sentence. Pressler & Verniero, Current N.J. Court Rules, comment 3.3.2 on R. 3:13-3 (2011).
To establish a Brady violation, a defendant must demonstrate that: "(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defense; and (3) the evidence [was] material." State v. Martini, 160 N.J. 248, 268 (1999); see also Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed.2d 706, 713 (1972). Evidence is "material" if there was a "'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 269 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3575, 3383, 87 L. Ed.2d 481, 494 (1985); State v. Landano, 271 N.J. Super. 1, 36 (App. Div.), certif. denied, 137 N.J. 164 (1994). A reasonable probability means "one that is 'sufficient to undermine confidence in the outcome.'" Ibid. Evidence that is impeaching may be material if it probably would have changed the verdict. State v. Henries, 306 N.J. Super. 512, 535 (App. Div. 1997).
As to the first prong, the record does not support defendant's assertion that the State suppressed evidence that Pelle testified in exchange for a reduced sentence on the federal or state charges against him. Defendant does not argue that Pelle's name was withheld during discovery, or that his criminal charges and convictions were not matters of public record. Neither was defendant denied the opportunity to investigate Pelle's background or uncover the state charges against him. Moreover, he had ample opportunity to cross-examine Pelle about the federal and state charges.
Indeed, defense counsel attempted to impeach Pelle's testimony by asking him if he had discussions with his attorney about receiving "a break" for testifying.
Regarding the federal charges, Pelle testified that he was arrested and indicted on three counts, and that he entered a guilty plea in June 2007. The plea agreement, dated April 23, 2007, makes no mention about credit for future cooperation, stating: "No additional promises, agreements, or conditions have been made or will be made unless set forth in writing and signed by the parties." Pelle was sentenced in September 2007, to a seventy-two month term and reported to a federal facility in November 2007. With respect to the state charges, Pelle testified: that DYFS seized his computer in March 2004; that he was charged with possessing child pornography, sexually assaulting his son, and transporting a minor across state lines for the purpose of sex; that he entered a guilty plea to sexually assaulting his son, N.J.S.A. 2C::14-2b; and that he was sentenced to a sixty-month state prison term concurrent with the federal sentence.
Pelle acknowledged that, in August or September 2007, he met with the United States Attorney in Newark and the Cumberland County prosecutor about defendant's case. In fact, he first met with the prosecutor on August 28, 2007. Although he spoke to the prosecutor before the federal sentencing, Pelle said no promises were made by the U.S. Attorney, the prosecutor, or his lawyer in exchange for his testimony at defendant's trial. At sentencing, he received no credit for cooperation. Similarly, with respect to the state charges, the judgment of conviction and the statement of reasons in support of the sentence both fail to mention that any consideration was given for past or present cooperation with the State. At trial, however, Pelle said he was "hopeful" of some favorable consideration, but he was not anticipating anything.11
The record also does not support defendant's claim that this evidence was material and that there might have been a different verdict if the prosecutor had disclosed promises made to Pelle in return for his testimony. Impeachment evidence is material where the issue of the witness's reliability and credibility is crucial. Henries, supra, 306 N.J. Super. at 534.
So even if Brady's first prong was met, such evidence would not be material because Pelle's credibility was already before the jury by his own admissions, including his participation in the website, the online chats, and his convictions. Moreover, Pelle was not the only witness who testified against defendant; to the contrary, the three boys involved all gave incriminating testimony consistent with their pre-trial statements to Detective Negron and to their family members. Thus, disclosure of any agreement with the prosecutor, if true, would have had no impact on the outcome of defendant's trial.
Defendant next contends, also for the first time on appeal, that the court erred by allowing the State to elicit expert testimony from Calderon on the Child Sexual Abuse Accommodation Syndrome (CSAAS), the "Finding Words" technique, and the credibility of the child victims. We disagree.
In the first place, Calderon was called as a defense witness. She testified extensively on direct examination about her background and training in Finding Words, RATAC ("rapport building, anatomy inquiry, touch inquiry, abuse scenario and closure"), and the CSAAS syndrome. She explained that it is often difficult for children to disclose sexual abuse, and that they are frequently forced into secrecy because of shame, fear, guilt, or threats. Children also feel entrapped and helpless, and boys worry about being labeled homosexuals.
Calderon also testified on direct about a child's demeanor, the importance of body language, and the factors causing someone to be susceptible. She explained her technique for interviewing children, after which defense counsel remarked, "you seem to be an expert in this area." The defense elicited testimony that Calderon had interviewed hundreds of children who were victims or witnesses of sexual abuse, and that patrol officers no longer conducted these interviews.
On cross-examination, the State probed further into Calderon's experience and understanding of RATAC, Finding Words, and CSAAS. For example, when questioning Calderon about CSAAS syndrome, the State elicited testimony that the non-disclosure rate for men was between forty-two and eighty-five percent, and that eighty-six percent of sexual assaults are unreported. Based on her training and experience, she explained that a victim often becomes loyal to an alleged perpetrator, and that the severity of the abuse could create "blocks" to disclosure. She also testified about the boys' body language, which defense counsel first addressed on direct. Defense counsel did not object to these questions.
At the charge conference, the court decided that the general witness credibility charge was sufficient for Calderon's testimony. Although it found that she gave a lot of personal opinion testimony, the court noted that she was not qualified as an expert and that even if it "doctored" the expert charge, the charge would confuse the jury. Neither party objected.
The admissibility of opinion evidence rests within a trial court's discretion. State v. LaBrutto, 114 N.J. 187, 197 (1989). A non-expert may give testimony in the form of opinions or inference provided it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness'[s] testimony or in determining a fact in issue." N.J.R.E. 701. Under the first prong, "'[a] lay witness may give an opinion on matters of common knowledge and observation.'" State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State. v. Johnson, 120 N.J. 263, 294 (1990)). It is sufficient for a lay witness to have actual knowledge acquired through his or her senses. LaBrutto, supra, 114 N.J. at 197. The second prong requires the opinion of the lay witness to help the trier of fact to understand the witness's testimony or the case in general. Id. at 198-99.
If there was error here, it was not capable of producing an unjust result. R. 2:10-2. Indeed, in his summation, defense counsel argued that Calderon, unlike Negron, used proper investigative techniques, and actually referred to her as an "expert" during direct examination. Moreover, Calderon's opinion testimony on cross-examination merely expanded on answers she had previously given on direct examination. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 504-05 (1996) (applying invited error doctrine to bar disappointed litigant from arguing on appeal a different strategy than one advocated below). In addition, defense counsel indicated at sidebar during direct examination that an expert charge was not necessary, and at the charge conference, did not object when the court decided that a general witness credibility charge was sufficient. Lastly, no possible prejudice inured to defendant because Calderon's opinion as to whether J.W. was forthcoming in his interview could not have improperly influenced the jury given J.W.'s admission that he lied to Calderon to protect defendant, and the fact that defense counsel elicited additional testimony from Calderon that J.W.'s body language could have meant something different.
Defendant argues that his trial attorney was ineffective for: (1) waiting until the day of trial to move for a continuance to hire experts; (2) failing to discover the inconsistency between the motion judge's oral decision and written order on the admissibility of the taped statements; (3) playing the audio taped statements of J.W. and B.M. at trial, even though the motion judge had ruled them inadmissible; (4) attempting to introduce police reports, which were "highly prejudicial hearsay"; (5) failing to comply with the Rape Shield Law; and (6) failing to object to leading questions during the State's direct examination of B.M. Defendant further argues that his attorney was per se ineffective because he had little or no criminal trial experience.
Claims of ineffective assistance of counsel are best suited for PCR proceedings because they often involve matters for which there is not a complete record. State v. Jackson, 278 N.J. Super. 69, 74 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). Such claims are not generally entertained on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).
Such is the case here. Many of defendant's claims could have been dictated by trial strategy, whereas others involve evidence outside the trial record. For example, defense counsel argued below that he did not move earlier for a continuance to hire experts because the State did not list its expert on the initial witness list, and he "had discussed that with [his] client and [they] had discussed that an expert was not needed for our case." Moreover, the attempt by defense counsel to admit police reports cannot be evaluated on direct appeal because the reports are not in the record. Additionally, the record contains no information about the trial background of defendant's counsel.
Defendant contends for the first time that the computer printout of Yahoo! text messages or "chats" was inadmissible hearsay because it lacked a proper foundation, proof of an uninterrupted chain of custody, and an original format. We disagree.
Writings must be authenticated to be received in evidence. State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). Under N.J.R.E. 901, "authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." This rule "does not require absolute certainty or conclusive proof. The proponent of the evidence is only required to make a prima facie showing of authenticity." Mays, supra, 321 N.J. Super. at 628. Once a prima facie case is made, the evidence is admissible and the ultimate question of authenticity is decided by the jury. Ibid. A trial court has broad discretion in determining whether the evidence has been properly authenticated. Kalola v. Eisenberg, 344 N.J. Super. 198, 206 (Law Div. 2001).
When there is no direct evidence, a writing or conversation may be authenticated by circumstantial evidence. Mays, supra, 321 N.J. Super. at 629. More specifically,
[a] writing or telephone conversation may be authenticated indirectly, regardless of its age, on testimony that one has received a letter signed with a person's name or has had a telephone conversation with one identifying himself as a particular person, and that the writer of the letter or other participant in the conversation divulged intimate knowledge of information which one would expect only the person alleged to have been the writer or participant to have.
[Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3(b) on N.J.R.E. 901 (2011).]
Thus, the presence of "sufficient circumstantial indicia of reliability" may establish a prima facie showing of authentication. Mays, supra, 321 N.J. Super. at 629.
Federal rules also permit authentication based on such distinctive characteristics as proof of a communication's contents or substance. Kalola, supra, 344 N.J. Super. at 205; See Fed. R. Evid. 901(b)(4) (allowing authentication of a communication based upon "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances"); see also United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (holding e-mails properly authenticated where they contained factual details known to appellant and bore his nickname), cert. denied, 533 U.S. 940, 121 S. Ct. 2573, 150 L. Ed.2d 737 (2001); United States v. Safavian, 435 F. Supp.2d 36, 40-41 (D.C. Cir. 2006) (finding sufficient evidence to authenticate e-mails based on their distinctive characteristics such as various identifiable matters in their contents), rev'd on other grounds, 528 F.3d 957 (D.C. Cir. 2008); In the Interest of F.P., 878 A.2d 91, 94-95 (Pa. Super. Ct. 2005) (finding sufficient evidence to authenticate computerized instant messages where the victim testified as to his screen name, and verified their contents).
There is sufficient circumstantial evidence to support the authentication of the Yahoo! chats, even though the individual who retrieved them from Pelle's computer did not testify. Specifically, the contents of the chats are consistent with the trial testimony of Pelle and defendant. For example, the chats showed that: "Robert," identified as Pelle, was conversing with someone named "Dave" who lived nearby; "Dave" met Robert at a campground; and Pelle asked if "Dave" and "J" wanted to stop by after a game. Moreover, Pelle identified his screen name on the chats, acknowledged that he participated in the chats, and confirmed that the contents of the chats were the same as his offline conversations with defendant. Pelle also testified that the chats took place over seven days in March 2004; that the federal government retrieved the chats from his hard drive; and the chats were the ones he had not deleted from his computer with the wiping program. And despite his denial of any online communications with Pelle, defendant's testimony was also consistent with the matters addressed in these chats. Thus, there was sufficient circumstantial evidence for a reasonable juror to conclude that these chats were taken from Pelle's computer.
Defendant also argues that the State failed to establish an uninterrupted chain of custody of the "chats" because Pelle's computer was in the possession of the Prosecutor's Office before it was turned over to the federal authorities. A chain of custody must be established to avoid any inference of substitution or tampering when evidence has passed out of the possession of the original receiver and into the possession of others. State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). It is not necessary, however, "to negate every possibility of substitution or change in condition of the evidence." State v. Brunson, 132 N.J. 377, 393 (1993) (referring to State's obligation when custodian of evidence sought to be admitted was a State agency). Evidence is admissible if the trial court finds a reasonable probability that it has not been changed in any important respect and is in substantially the same condition. Id. at 393-94. Defendant neither raised this argument at trial, nor offered any proof on appeal of substitution or tampering. Accordingly, we reject defendant's argument.
Lastly, defendant argues that the chats were inadmissible because the State did not produce the original copy or any explanation as to why they were not available. N.J.R.E. 1002 provides that "[t]o prove the content of a writing or photograph, the original writing or photograph is required except as otherwise provided in these rules or by statute." The printed chats, however, are an "original" because they camedirectly from the computer. SeeState v. Harte, 395 N.J. Super.162, 170 (Law Div. 2006) (finding DVD was original under N.J.R.E.1002 because it got the information directly from the computer).
Defendant contends that he was denied his constitutional right to a speedy trial. We disagree.
Defendant was arrested on July 11 and 22, 2005. He was indicted nine months later. Almost four years after his first arrest, in April 2009, defendant filed his speedy trial motion, which the court denied reasoning that the delay, albeit substantial, was reasonable given the factual complexity, the late-discovered evidence, and the change of defense counsel. It also found there was no intentional delay by either party or the court, and most significantly, no prejudice to defendant, "other than the prejudice normally associated with being under the cloud of indictment." Defendant's trial began in August 2009.
The United States and New Jersey Constitutions provide for the right to a speedy trial. U.S. Const. amend VI, N.J. Const. art. I, 10. To determine a speedy trial claim, courts consider: "(1) the length of the delay; (2) the reasons for the delay; (3) whether and how the defendant asserted his speedy trial right; and (4) the amount of prejudice to the defendant caused by the delay." State v. Long, 119 N.J. 439, 470 (1990) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117 (1972)). These factors are related and must be weighed together. State v. Fulford, 349 N.J. Super. 183, 195 (App. Div. 2002). Thus, "the right to a speedy trial is relative and depends upon circumstances." State v. Szima, 70 N.J. 196, 200, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed.2d 180 (1976).
"While an accused has no duty to bring himself or herself to trial, it is difficult to prevail on a speedy trial claim without a timely assertion of rights." Fulford, supra, 349 N.J. Super. at 193; see also State v. Douglas, 322 N.J. Super. 156, 171 (App. Div.), certif. denied, 162 N.J. 197 (1999). The failure to assert this right makes "it difficult for a defendant to prove that he was denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118; Szima, supra, 70 N.J. at 200 (same). "Except in the most egregious of cases, the length of the delay and the absence of any explanation for the delay cannot alone justify" a speedy-trial violation. Fulford, supra, 349 N.J. Super. at 195.
Under the first prong, the length of delay is calculated from the earliest date of arrest. Long, supra, 119 N.J. at 469; Douglas, supra, 322 N.J. Super. at 170. Although it took four years to bring defendant to trial, the length of delay by itself does not give rise to prejudice or denial of a speedy-trial right. Id. at 171 (addressing capital case). We also look to the reason for the delay.
Here, both parties filed pre-trial motions. The court held hearings between January and August 2007 on the admissibility of the taped statements, and issued a written opinion in September 2007. Around this time, the State received additional evidence from the U.S. Attorney's Office, including the online chats retrieved from Pelle's hard drive. As represented at the speedy-trial hearing, the State subsequently interviewed Pelle twice and generated reports, which were given to defense counsel. In December 2007, the court heard additional motions filed by the defense to exclude evidence and change venue, which were denied in February and April 2008. The State then requested a copy of the hard drive from Pelle's computer, which took several months to get from the federal government, and gave it to the defense. Thus, the reason for the delays include motions filed by defendant, court adjournments, and late-discovered evidence. There has been no demonstration by defendant that the State intentionally delayed the proceeding to obtain an unfair tactical advantage. Long, supra, 119 N.J. at 471.
Furthermore, defendant waited almost four years after his arrest to make his speedy trial demand. And lastly, defendant has failed to show any resultant prejudice. In this regard, the speedy trial right was designed to avoid: (1) oppressive pretrial incarceration; (2) anxiety and concern of the defendant; and (3) the possible impairment of the defendant's case. Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118; Fulford, supra, 349 N.J. Super. at 194. Here, defendant was not incarcerated during this time, and has established no impairment of his ability to defend himself. In sum, there was no violation of defendant's right to a speedy trial in this matter.
After merging the lesser offenses into the greater offenses of first-degree aggravated assault and second-degree sexual assault, the court sentenced defendant to consecutive terms of sixteen years on the first-degree crimes, and to a consecutive term of eight years on the second-degree crime, with an eighty-five-percent period of parole ineligibility. Defendant contends this sentence is excessive. We disagree.
When reviewing a sentencing decision, "'[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). We must affirm so long as the trial court has explained the sentence as required by Rule 3:21-4(g) and the case law, State v. Bieniek, 200 N.J. 601, 608 (2010), adhered to the Code's sentencing scheme as construed by our courts, State v. Roth, 95 N.J. 334, 365-66 (1984), and set a sentence that does not shock the judicial conscience and is based on findings of aggravating and mitigating factors and a balancing of those factors that is "'supported by competent credible evidence in the record,'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)).
Here, the court found one mitigating factor: "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7). The court, however, gave this factor only slight weight.
The court also considered, but rejected, mitigating factor ten: "[t]he defendant is particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1(b)(10). In giving this factor no weight, the court explained that although this was defendant's first conviction, "[d]ue to the seriousness of the offenses, the number of offenses, and the number of victims, the defendant would not appear to be amenable to probation." The court also noted at sentencing that defendant had showed no remorse, had admitted no guilt, and had taken no responsibility for his actions. While recognizing that was his right, it noted that defendant had refused to participate in the court-ordered Avenel evaluation.
The court found aggravating factors three (the risk that defendant would commit another offense) and nine (the need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3) and (9). The court gave substantial weight to both factors. Regarding aggravating factor three, the court stated that, even though defendant had no criminal history, the crimes occurred over several years and involved three victims. In discussing aggravating factor nine, it explained that crimes against children were a very serious problem and must be deterred, and that this factor applied in every case. The court noted that the evidence was overwhelming that defendant began relationships with these boys as a friend, that he provided them with an environment where they could play games, watch movies, and spend the night, and that over time he began sexually abusing them.
The court concluded that the aggravating factors outweighed the mitigating factors, after qualitatively evaluating them. It found that the strong presumption of incarceration for first and second degree crimes was not overcome by any factors. It also found that these matters were subject to the mandatory sentencing provisions of NERA.
The court also concluded that consecutive sentences were proper and necessary, given that defendant engaged in a pattern of behavior constituting a series of offenses involving different victims. The court explained that these were "horrible acts" by defendant against young children, and that "there will be no free crimes here."
Moreover, a court may give minimal weight to a defendant's lack of a previous criminal record provided it explains the reasons for doing so. State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001); see also State v. T.C., 347 N.J. Super. 219, 227, 244 (App. Div. 2002) (affirming sentence where evidence of child endangerment was overwhelming, even though the defendant had relatively minor criminal history), certif. denied, 177 N.J. 222 (2003). Here, while noting defendant's lack of a criminal record, the court explained that he had engaged in a number of very serious sexual crimes against three different child victims over several years.
In conclusion, we are satisfied that the trial court provided reasons for imposing its consecutive sentences that reveal the court's consideration of all applicable aggravating and mitigating factors in reaching its decision.
We have considered each of defendant's remaining issues and are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
1 During direct examination of Calderon, defense counsel played to the jury the taped statements of J.W. and B.M.
2 Calderon also interviewed D.M., who was then five years old. D.M. said that no one ever touched his private parts.
3 Meanwhile, in early October 2004, two federal agents from Homeland Security had gone to defendant's home and taken two computers. In mid-December 2004, defendant was informed that the computers were given "a clean bill of health," and that the investigation was closed. In April 2005, defendant's computers were returned to him.
4 On June 15, 2005, Negron had also met Williams at the trailer park. He described her home as being in very poor condition. Williams showed Negron the toys, bicycle, and windows that defendant had bought. She told him about her taped conversation with J.F., but thought the tape was destroyed or lost. On July 15, 2005, she found the tape and gave it to the police.
5 J.W. also mentioned to Negron B.M.'s first name only and said nothing had happened to him.
6 During cross-examination of Negron, defense counsel played to the jury the audio tapes of J.F. (June 10, 2005), J.W. (June 27, 2005, and July 22, 2005), and B.M. (June 21, 2005).
7 The only other time Pelle witnessed sexual interaction was at his house, when J.W. walked over to defendant and rubbed his private area without being asked. During a hayride in October 2003 with Pelle's son, J.W., and two other men from the website group, defendant told Pelle that J.W. was sleeping over his house that night and that he tried to get B.M. in bed during a sleepover at his house, but at the last minute B.M. backed out. Another time, defendant described how he had ejaculated onto the back of J.W., who was "riding" him. Based on his observations, Pelle described the relationship between defendant and J.W. as very close.
8 At trial, Pelle identified a sixty-nine-page document consisting of an "archive file" of Yahoo! Messenger "chats" from March 14 to 21, 2004. He confirmed that the chats came from his computer, that they consisted of online conversations between "Robert" and "Dave," and that he was "Robert" and "Dave" was defendant.
9 In fact, defendant concedes on appeal that some words and sentences on the enhanced tape were inaudible, and that "the probative value as too [sic] the substance was limited."
10 In fact, the State argues that the defense benefited from the tape's exclusion. It claims that the tape corroborated Williams' testimony that J.F. was telling the truth; that the tape confirmed J.F.'s testimony that he withheld information from Negron to protect defendant; and that the tape rebutted the defendant's suggestion of inconsistent statements.
11 Post trial, on September 3, 2009, defendant's attorney asked the State for information about Pelle's cooperation in connection with a motion to reconsider his sentence. In its response, the State wrote that Pelle cooperated "without any promise of any reduction or consideration for his federal or state sentences." Finally, in his affidavit, dated November 24, 2009, Pelle stated that he received no benefit from cooperating with any state agency or the federal government.