STATE OF NEW JERSEY v. CHARLES L. WHITTED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1710-03T41710-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES L. WHITTED,

Defendant-Appellant.

________________________________

 

Submitted February 8, 2006 - Decided June 30, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Atlantic

County, Indictment No. 97-10-2610.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Charles L. Whitted was tried before a jury and convicted of second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b; third-degree burglary, in violation of N.J.S.A. 2C:18-2; and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. Defendant was evaluated at the Adult Diagnostic and Treatment Center ("ADTC"), and found to fall within the purview of the New Jersey Sexual Offender Act, N.J.S.A. 2C:47-1 to -10, as a compulsive and repetitive sexual offender.

The court sentenced defendant to an extended term of twenty years, with ten years of parole ineligibility on the sexual assault conviction. On the third-degree burglary conviction, the court sentenced defendant to a term of five years, to run consecutive to the sentence imposed for the sexual assault, and merged the third-degree endangering the welfare of a child conviction with the sexual assault. The court also imposed the mandatory fines and penalties, advised defendant of his obligations under Megan's Law (N.J.S.A. 2C:7-1 to -19), and directed that the custodial sentence for the sexual assault be served at the ADTC.

We gather the following facts from the evidence presented at the trial. On July 23, 1997, at around 5:00 a.m., a seven-year-old boy awoke to find defendant sleeping in the bottom bunk of the bed with his three-year-old sister. Defendant told the child that his parents had given him permission for him to be in the room, in bed with his sister. The boy nevertheless left the room and awoke his mother. When the children's mother walked into the room she found defendant in bed with her young daughter.

The woman screamed and called for help from her boyfriend (the girl's father) who was sleeping in the next room. Defendant jumped out of the three-year-old's bed and fled through the same open window that he had used earlier to enter the children's bedroom surreptitiously. The boyfriend chased defendant without success. Both the mother and the victim's older brother identified defendant from a police photograph. The boy was unable to make an in-court identification of defendant.

The little girl, who was visually impaired and used a glass eye, was found by her mother in bed, nude and staring aimlessly into space. The child told her mother that defendant had touched her "toto," a word she used to describe her genital area. The girl was taken to the Atlantic City Medical Center, where an examination revealed vaginal abrasions and irritation. The examining physician prescribed a topical ointment, and the child was discharged that same day.

Defendant now appeals raising the following arguments.

POINT ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL AND IN FAILING TO APPLY THE PRESUMPTION OF PREJUDICE BECAUSE THE JURY VOIR DIRE, ALTHOUGH REMEDIAL AND PROPHYLACTIC, WAS UNABLE TO CURE THE INHERENT PREJUDICE ASSOCIATED WITH JUROR SIX READING THE NEWSPAPER HEADLINE ENTITLED "RETRIAL BEGINS FOR CONVICTED CHILD MOLESTER"

POINT TWO

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY BY INSTRUCTING JURORS TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (Not Raised Below)

POINT THREE

THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY AFTER INVESTIGATOR CONSTANTINI TESTIFIED THAT HE SHOWED R.A. A POLICE PHOTOGRAPH OF THE DEFENDANT (Not Raised Below)

POINT FOUR

IMPOSITION OF THE AGGREGATE CUSTODIAL SENTENCE OF TWENTY-FIVE (25) YEARS WITH TEN (10) YEARS OF PAROLE INELIGIBIITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON

A.

THE TRIAL COURT ABUSED ITS DISRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER

B.

IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON

C.

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE EXTENDED TERM SENTENCE IN EXCESS OF THE PRESUMPTIVE EXTENDED TERM SENTENCE

D.

THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS TWO AND THREE CONSECUTIVE TO EACH OTHER

We are satisfied that the arguments attacking defendant's conviction lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments in the interest of clarity.

This is the second time defendant has stood trial for these offenses. At the first trial, which also resulted in a conviction, defendant faced charges from incidents involving two separate victims, including the child involved here. On direct appeal, we reversed the conviction and remanded the matter for a new trial based on the trial court's erroneous denial of defendant's motion to sever, which produced the admission of testimony in violation of the proscriptions in N.J.R.E. 404b. State v. Whitted, No. A-1737-99T4 (App. Div. January 25, 2002).

Here, on the third day of trial, the local newspaper, Atlantic City Press, published a story with the headline "Retrial Begins For Convicted Child Molester." Upon learning of this press coverage, the trial judge immediately conducted a voir dire of the jury, in order to determine whether any juror had read or heard about the article. Two jurors (numbers one and six) indicated that they had seen the headline, but had not read the article.

Based on these two jurors' individual responses to the judge's thorough and probing questions, the court excused juror number one, but permitted juror number six to remain. All of the remaining jurors were also individually questioned and indicated that they had not seen or heard about the newspaper article. Thereafter, the court denied defendant's motion for mistrial, concluding that there was no basis to find that the sitting jurors' impartiality had been compromised or tainted by the newspaper article. We are satisfied that the procedures employed here by the trial court are in compliance with the guidelines articulated by the Supreme Court in State v. Bey, 112 N.J. 45, 81-84 (1988).

We will now address defendant's arguments pertaining to his sentence. The court found aggravating factors two, three, six and nine, N.J.S.A. 2C:44-1a, and no mitigating factors. We are thus compelled to remand the matter for re-sentencing, for the trial court to apply the guidelines announced by the Supreme Court in State v. Natale, 184 N.J. 458, 481-82 (2005); See also State v. Drew, 383 N.J. Super. 185, 202-03 (App. Div. 2006), certif. denied, ___ N.J. ___ (2006); State v. Young, 379 N.J. Super. 498, 509-15 (App. Div. 2005).

Defendant's conviction is affirmed. The matter is remanded for re-sentencing. We do not retain jurisdiction.

 

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A-1710-03T4

RECORD IMPOUNDED

June 30, 2006