STATE OF NEW JERSEY v. CARLOS MENDOZA

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5777-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS MENDOZA,

Defendant-Appellant.
_______________________________________________________________

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July 27, 2006

Submitted December 6, 2005 Decided

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-05-0700-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Carlos Mendoza, appeals from a conviction for second degree sexual assault, N.J.S.A. 2C:14-2(b) (count two) and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). Defendant was found not guilty of the charge of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one). We affirm the convictions.
For roughly two or three years prior to March 2002, defendant lived in his relative's household, which included the victim. Defendant was thirty-two years old, having been born on November 30, 1969. In the summer of 2001, the victim and the victim's mother were watching television in the bedroom and defendant came into the room and told the victim's mother that he was hungry. She got up to prepare something for defendant to eat and told the victim to remain. Instead, the victim appeared frightened and accompanied her mother to the kitchen. Later that day, the victim's mother asked the victim why she did not stay in the bedroom with defendant and asked if he had ever touched her. The victim replied that defendant had. The victim's mother first spoke with her husband and then confronted defendant. When she asked defendant whether he had done something to the victim or made a mistake, defendant denied any wrongdoing. His response was that he was not crazy. Neither the victim's mother nor her husband contacted the authorities at this point.
Some time later, on March 4, 2002, Lynn Mallory, a counselor at a Mental Health Clinic assigned to the victim's school, met with the victim upon a referral from the school psychologist, who felt the victim was experiencing low self esteem due to hearing loss in one of her ears. During the March 4, 2002 interview, Mallory explained what sexual abuse was and inquired of the victim whether anyone had touched her "in a place that they shouldn't?" The victim told Mallory that defendant had touched her where he should not. Mallory reported that response to the Division of Youth and Family Services (DYFS), which in turn contacted the prosecutor's office. After speaking with Mallory, Detective Scott Heath and another detective of the prosecutor's office went to the victim's house and took the victim and her mother to the prosecutor's office to be interviewed. After those interviews, the detectives encountered defendant and told him they needed him to answer some questions at their office. Defendant went with them to their office.
Detective Heath testified he used a Miranda See footnote 1 warnings and rights card to advise defendant of his rights. He read to defendant exactly what was contained on the card and he asked defendant if he understood his rights. Defendant answered affirmatively. The detective then had defendant read aloud the second enumerated right to be sure defendant understood: "If you speak to us, anything you say can be used against you in court." Detective Heath then instructed defendant to read the rest of his rights silently to himself and defendant wrote his initials next to each individual right to demonstrate he understood it. At the end of the explanation of rights was a question asking whether defendant understood every one of these rights. In the designated spaces, defendant wrote yes and signed his name to acknowledge that he understood all of his rights. There was also a waiver of rights section on the form. Detective Heath testified he read each sentence aloud to defendant after which defendant affixed his signature to verify that he agreed to answer questions, that he was not requesting an attorney and that he understood he could stop talking at any time.
The form was written in English and the detective spoke to defendant in English. Defendant's responses also were in English, and according to the detective, defendant did not appear to have any problem understanding and he did not request a translator.
Detective Heath told defendant that the victim had accused him of sexual abuse. When he was asked why the victim would say such a thing, defendant stated that it may be because he purchased things for the other children in the household but not the victim. Defendant told the detective that the victim's mother had accused him of touching the victim four or five months earlier. Later during the interview, defendant admitted to the detective that he did touch the victim, but that he never penetrated her.
Detective Heath then asked defendant if he would be willing to give a sworn statement. Defendant agreed and a secretary was brought into the interview room to take the statement. Defendant again acknowledged that his answers to the detective's questions could be used in court and that the detective had advised defendant of his rights and asked if defendant understood them. Defendant also acknowledged that he could read, write and understand English and that his highest level of education was the twelfth grade.
In his statement, defendant admitted that he had touched the victim's private parts in a sexual way on two or three occasions and that the first time probably was within the last eight months before the date of his statement. He claimed that the victim was showing him she already had pubic hair and she asked him to feel it. She lifted her panties up and he rubbed her private parts under her panties. Defendant stated the last time he touched the victim in a sexual way was a couple of weeks prior to his statement. According to him, he was "sitting on the couch watching TV with everyone else around [when] [s]he pulled [his] arm . . . on top of her. . . . Then she lifted her pants, . . . and then pulled [his] hand into her underwear. She wanted [him] to touch her or something. [He] was aware and [he] pulled away from her and left her."
Defendant described an incident where the victim's mother accused him of touching the victim's breasts. He explained that he had hugged the victim from behind and touched her breasts. Defendant added that he recognized that "[a]s a grownup, [he] should have avoided this . . . [he] should have told her mom or her something instead of staying quiet."
Before concluding the interview, Detective Heath asked defendant if he had answered all of the questions truthfully. Defendant assured him he had. Heath then asked defendant to read over his four page statement and make any necessary corrections. Defendant corrected a mistake in the listing of his home address. Otherwise, he initialed the top and bottom of each page and signed the document, swearing it was truthful and accurate.
The victim was born on April 6, 1989. According to her testimony, defendant put his hand under her clothes and touched her vagina. When he did it, he said that he liked it. She did not respond, but she testified it made her feel "weird." Defendant touched her breasts and butt as well. On one occasion, defendant tried to force her to have sex with him in his bedroom. The abuse started when the victim was eight years old and occurred about six times. The last incident was when she was twelve years old. Defendant told the victim not to tell anyone or he would kill her family.
Defendant makes the following arguments on appeal:

POINT ONE: THE DEFENDANT'S MOTION FOR A DIRECTED FINDING OF NOT GUILTY AT THE CONCLUSION OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED.

POINT TWO: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF DEFENSE COUNSEL TO DEMAND A PRETRIAL HEARING ON THE ISSUE WHETHER THE DEFENDANT UNDERSTOOD HIS RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).

POINT THREE: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT FOUR: DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL BASED UPON CONFLICTING JURY INSTRUCTIONS ON FRESH COMPLAINT AND CSAAS EVIDENCE. (NOT RAISED BELOW).

 
We have considered defendant's arguments in light of the record and applicable law and we find them to be without sufficient merit to warrant reversal or remand. We find Point Three does not warrant discussion in a written opinion. R. 2:11-3(e)(2); R. 2:10-1. We merely note that the test on a challenge to the weight of the evidence is whether "it clearly and convincingly appears that there was a manifest denial of justice under the law." State v. Carter, 91 N.J. 86, 96 (1982) (citations omitted). We perceive no such denial.
Defendant contends that his confession was not corroborated and, consequently, his motion for a judgment of acquittal as to the applicability of the No Early Release Act (NERA) should have been granted. Defense counsel argues that since the victim could not give any specific date as to any sexual assault, there was no evidence that the defendant touched her after June 29, 2001, the effective date of amendments to NERA. See footnote 2 According to defense counsel, the trial court should have directed a finding of not guilty or, in the alternative, only permitted the jury to consider whether defendant was guilty of offenses committed prior to the June 29, 2001 amendments to NERA.
"It is a widely accepted doctrine reflected in either American decisional or statutory law that an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." State v. Lucas, 30 N.J. 37, 51 (1959). "On motion to direct an acquittal on grounds of lack of corroboration the trial court must determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy." Id. at 62 (emphasis added). "[T]he State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness[.]" Id. at 56.
First, the corroboration requirement of Lucas is inapplicable since defendant testified on his own behalf and stated in court that he touched the victim within a couple of weeks prior to his arrest on March 4, 2002. That admission was not extra-judicial and it independently confirms that NERA is applicable.
Defendant admitted in his sworn statement taken on March 4, 2002, that he had touched the victim improperly within the last eight months. That would mean the abuse occurred sometime after April 2001 and before March 2002, while the victim was twelve years old. Defendant also admitted he abused the victim a couple of weeks prior to his March 4, 2002 statement. Defendant's admissions are corroborated by the victim's statement that he molested her when she was twelve years old. In addition, the victim's twelfth birthday was on April 6, 2001. She testified that she was twelve years old on the sixth occasion of sexual abuse by defendant. In short, the victim's testimony corroborates defendant's confession by providing admissible evidence that allowed the jury to draw an inference that defendant abused the victim after July 1, 2001.
Next, defendant contends that trial counsel provided ineffective assistance because he did not demand that the court hold a pretrial hearing to determine whether defendant understood his right to remain silent. New Jersey courts have adopted the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 58 (1987). Thus, in order to show ineffective assistance of counsel, a defendant must demonstrate acts or omissions that reflect unreasonable professional judgment by the attorney, and show that those acts or omissions prejudicially affected the outcome. Ibid.
A reviewing court must look at "the fundamental fairness of the proceeding whose result is being challenged." Fritz, supra, 105 N.J. at 58 (citing Strickland, supra, 446 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed 2d at 699). The court should also be extremely deferential to counsel's performance, which requires "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed 2d at 694). "The benchmark for judging ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 58 (quoting Strickland, supra, 446 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed 2d at 692-93). Stated another way, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Based upon our independent review of the record, we are convinced that defendant understood his rights. Defendant emphasizes that the police spoke to him in English and the Miranda waiver form was written in English, whereas defendant's native language is Spanish. Waiver of one's Miranda rights "must be both knowing and intelligent and voluntary." State v. Cardona, 268 N.J. Super. 38, 44 (App. Div. 1993). The burden is on the State to prove beyond a reasonable doubt that the "waiver of the privilege against self-incrimination and the right to counsel is knowing and intelligent and voluntary." Ibid. To make its determination, the court looks at "the totality of the circumstances, including such factors as: 'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical or mental exhaustion was involved . . . .'" Ibid. (alteration in original) (quoting State v. Miller, 76 N.J. 392, 402 (1978)).
Here, defendant was thirty-two years of age and had received his GED. He stated that he could read, write and understand English. The officers did not recognize any difficulties in defendant's ability to understand or communicate in English. Defendant read his rights and initialed next to each one and signed the waiver of Miranda rights form. Defendant read aloud to Detective Heath a portion of the Miranda form, which was written in English.
On direct examination, defendant did not deny that he could understand and communicate in English. He concluded that he always conversed with his attorney in English. Defendant used an interpreter at trial because, according to his testimony, it was easier for him to express himself in Spanish. Defendant undoubtedly had the ability to understand the English language.
Defendant testified he was born in El Salvador but came to the United States in 1983, when he was thirteen or fourteen years old. In a January 12, 2004 pre-trial hearing conducted in English, defendant was told by his attorney to stop him and request an interpreter if he did not understand anything. He did not request an interpreter and at various times when defendant was addressed directly in English, either by his attorney or by the court, he responded appropriately in English. Based on our consideration of all the circumstances, we are satisfied that defense counsel would not have succeeded in an attempt to have defendant's statements excluded for lack of an effective waiver and a hearing to determine such would not have changed the outcome of the case. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Finally, defendant contends that the judge's instructions to the jury regarding fresh complaint evidence and the child sexual abuse accommodation syndrome (CSAAS) evidence were so contradictory and so confusing that a new trial is required. Since defendant did not object to the jury charge, our review is under the plain error standard. R. 2:10-2. Plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
In State v. P.H., 178 N.J. 378, 400 (2004), the Supreme Court affirmed our reversal of defendant's conviction for child sexual abuse because the trial court's combination of the fresh complaint and CSAAS jury charges were "contradictory and confusing." According to the Court, the instructions given at the trial of that matter "improperly suggested that, when undertaking to evaluate the credibility of an alleged child victim of sexual assault, jurors could not consider for any purpose the child's delay in reporting the alleged abuse." Ibid.
Here, defendant failed to object to the charge at the trial and must demonstrate plain error. R. 2:10-2. Moreover, the disputed jury charge did not suffer from the defect that the Supreme Court found constituted reversible error in P.H. It did not include the sentence that implied or might be misunderstood to imply that the child's delay in complaining could not be considered for any purpose.
Rather, the trial judge's instructions explicitly allowed the jury to take into account the victim's delayed complaint in assessing the victim's credibility. The judge stated, "you may consider the timeliness of the complaint, and the likelihood that [the victim] would complain under the circumstances described." The judge repeatedly instructed the jury that the evidence of the complaint was only to be considered for the limited purpose of dispelling any negative inference the victim's assumed silence might cause. Further, the judge explained to the jury that the CSAAS evidence was only to give them an explanation of what might cause a victim of sexual abuse to fail to complain in a timely manner. The judge stated that the CSAAS evidence was admitted "only to explain that the behavior of the alleged victim was not necessarily inconsistent with sexual abuse. The weight to be given . . . is entirely up to you. You may give it great weight, or slight weight, or any weight in between, or you may in your discretion reject it entirely."
The jury was instructed to consider all the evidence regarding the time and manner of the victim's complaint. Further, the judge instructed the jury to give the expert's testimony regarding CSAAS evidence whatever weight they felt it warranted. Since, in contrast to P.H., the present charge did not preclude the jury from considering the victim's failure to complain in a timely manner, the trial court's instructions were proper and not contradictory. When the jury charge is read as a whole, the two concepts, lack of fresh complaint and CSAAS, were carefully and correctly explained.
Affirmed.
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Footnote: 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Footnote: 2 Prior to June 29, 2001, NERA applied to violent crimes in which the actor caused death, serious bodily injury, or used or threatened the immediate use of a deadly weapon. Effective June 29, 2001, the legislature amended NERA by enumerating specifically the offenses to which it applies. Among those offenses is sexual assault, N.J.S.A. 2C:14-2(b).

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