STATE OF NEW JERSEY v. GIOVANNI SOTOMAYOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3400-031882-06T5T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GIOVANNI SOTOMAYOR,

Defendant-Appellant.

________________________________

 

Submitted September 24, 2007 - Decided

Before Judges Weissbard and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, 00-08-1621-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Giovanni Sotomayor appeals from his conviction following a jury trial on eleven counts of a twelve count indictment charging the following offenses: first-degree aggravated sexual assault during the course of a burglary N.J.S.A. 2C:14-2a(3) (Count One); first-degree aggravated sexual assault while armed with a knife, N.J.S.A. 2C:14-2a(4) (Count Two); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Three); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Four and Five); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Six); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Seven); second-degree burglary, N.J.S.A. 2C:18-2 (Count Eight); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (Counts Nine and Ten); third degree criminal restraint N.J.S.A. 2C:13-2a (Count Eleven).

Defendant was acquitted of Count Twelve charging third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.

On October 31, 2003, defendant's motion for a new trial was denied. That same day, the State's motion for an extended term under N.J.S.A. 2C:43-7.1b (the Three Strikes Law) was granted. The judge merged Counts Two, Three, Four, Five, Six, Seven, and Eight with Count One. On Count One, defendant was sentenced to fifty years imprisonment, 85 percent of the first twenty years of that sentence without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a) and five years community supervision. On counts Ten and Eleven, defendant was sentenced to five year terms of imprisonment. All sentences were made concurrent to each other, so that defendant's aggregate term was fifty years imprisonment with seventeen years parole ineligibility. This sentence was made consecutive to a sentence defendant was already serving.

In addition, defendant was required to register as a sex offender, N.J.S.A. 2C:7-2a, to provide a DNA sample and to submit to community supervision for life, N.J.S.A. 2C:43-6.4a. Appropriate penalties and assessments were also imposed.

On appeal defendant presents the following arguments:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN IT RULED THAT DEFENSE COUNSEL COULD NOT ASK [D.P.] ABOUT CHARGES AGAINST HER THAT HAD BEEN DISMISSED PRIOR TO THE TRIAL UNLESS COUNSEL COULD ESTABLISH THAT THEIR DISMISSAL WAS THE RESULT OF HER AGREEMENT TO TESTIFY IN THIS CASE.

POINT II: THE TRIAL COURT ERRED IN PROHIBITING DEFENDANT'S WIFE FROM TESTIFYING THAT HE WAS INTOXICATED WHEN HE RETURNED HOME THAT NIGHT BECAUSE THAT TESTIMONY WAS NOT INTENDED TO SUPPORT AN INTOXICATION DEFENSE, BUT TO ESTABLISH THAT HE DID NOT COMMIT THE CRIME.

POINT III: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM AND THE DETECTIVE DURING HER SUMMATION. (Not Raised Below)

We find merit in defendant's first and second points, requiring reversal and a new trial.

I

In the early morning hours of January 20, 2000, a man entered the second floor apartment of D.P. and, according to her testimony, brutally assaulted her. D.P. lived in the apartment with her father and infant son. Her father was away at the time but her son was asleep. D.P. was asleep on the living room couch when the intruder began to kiss her cheek. She awoke but a blanket covered her eyes. The man pressed a sharp object to D.P.'s side. After D.P. requested and was allowed to use the bathroom, the man forced D.P. to perform fellatio on him, performed cunnilingus on her and vaginally penetrated her. He also masturbated himself and forced D.P. to masturbate him.

Although D.P. could not see the victim's face, she saw an elaborate "S" tattooed on his chest and a series of letters tattooed on his stomach. The man spoke of a number of personal things to D.P. that suggested he knew her, such as the whereabouts of her two friends, Danielle and Kelly, who had been at the apartment until about 2:00 a.m. that morning. He also mentioned a boyfriend she had recently broken up with. From their conversation D.P. also concluded that the man was Hispanic.

Before leaving, the assailant demanded money or jewelry and D.P. gave him $20, the only cash on hand. The man apparently left through the bedroom window where he had entered. As soon as he was gone D.P. gathered her son and ran to a nearby grocery store where she had the owner call the police. It was about 7:00 a.m. The police arrived quickly and took D.P. to the hospital where a "rape kit" was administered. No evidence of vaginal trauma was found but genital and vaginal swabs were strongly positive for amalyse, a constituent of saliva. Thereafter, D.P. was taken to the Prosecutor's office where she gave a formal statement.

An examination of D.P.'s apartment revealed the previously mentioned cut in the screen. Fingerprints were taken from several locations in the apartment but when later compared with defendant's prints, there was no match.

In some manner not clear, defendant became a suspect. On January 20 at 10:00 a.m. officers went to his home in Union City and asked him to come to police headquarters for questioning. Defendant agreed. At headquarters he provided fingerprints and waived his Miranda rights.

After several rounds of interrogation, defendant first denied having any sexual contact with D.P., then said he had consensual sex with her, and finally admitted to some non-consensual sexual acts, but denied having a knife and denied any sexual penetration. He maintained that he was intoxicated at the time. Further investigation resulted in questioning of Jeff Bollette, who was with defendant the evening of January 19 and last saw him near D.P.'s apartment at 3:30 a.m., with a pocket knife.

At trial D.P. identified a photo of an "S" on defendant's chest as being the same as on her assailant. However, she could not say if letters on defendant's stomach were the same as observed on the assailant and she did not ascribe to her attacker other tattoos that appeared on defendant's body.

Defendant did not testify but called his wife, C.S., to testify that on January 20, had come home between 5:30 and 6:00 a.m., and "smelled of liquor."

II

At trial, after counsel had given their opening statements, the prosecutor informed the judge that defense counsel intended to impeach the credibility of D.P by "use of information . . . obtained in her criminal case history, specifically that there [were] . . . two charges against her that were ultimately dismissed." The prosecutor asserted that defense counsel was not entitled to a criminal case history and that counsel "should not be allowed to use this information . . . [because] under N.J.R.E. 609 . . . impeachment of the credibility of a witness can only be by evidence of a conviction of a crime."

In response, defense counsel argued that it was improper to characterize this as impeachment and that "[i]t really goes to attacking the bias and . . . interest of the witness." The judge then asked, "if she was arrested and charges were dismissed . . . how do you accomplish that?" Defense counsel answered that the alleged victim had been "charged with an indictable offense, possession of a firearm and in a motor vehicle, and within a certain amount of time that indictable offense . . . is dismissed." Defense counsel argued that the dismissal of the charges provided a "further incentive" to the victim, and that he should be "entitled to ask how it came to be they were dismissed, why they were dismissed, [and] what sort of promises were made to her as a result of the dismissal." The trial judge held that, "Unless [defense had] a foundation that [the charges] were dismissed as a result of her testifying in this case, [he] will not allow it."

Defendant claims that his Sixth Amendment right to confrontation was violated when the trial court ruled that defendant would be barred from cross-examining D.P. about the charges that were dismissed, unless defendant could show that the charges were dismissed because D.P. agreed to testify in the sexual assault trial. The State concedes that this limitation of cross-examination was improper, but argues that it did not violate defendant's right to a fair trial.

The Sixth Amendment and Article I, Paragraph 10 of our State Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. State v. Guenther, 181 N.J. 129, 147 (2004). A defendant's right to confront and cross-examine witnesses is "among the minimum essentials of a fair trial." See Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973). As the right to meaningful cross-examination is crucial to confrontation, Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974); State v. Crudup, 176 N.J. Super. 215, 220 (App. Div. 1980), a defendant is protected "against improper restrictions on questions defense counsel may ask during cross-examination." State v. Budis, 125 N.J. 519, 531-32 (1991) (citations omitted). Through cross-examination, defendant has the opportunity to discredit the witness's motivations by "revealing possible biases, prejudices or ulterior motives." Davis v. Alaska, supra, 415 U.S. at 316, 94 S. Ct. at 1110, 39 L. Ed. 2d at 353-54.

We have held that the pendency of charges against a prosecution witness is "an appropriate topic for cross-examination," and a defendant need not show that an agreement existed between the State and the witness before delving into that line of cross-examination, State v. Landano, 271 N.J. Super. 1, 40 (App. Div.), certif. denied, 137 N.J 164 (1994), because the state of mind of the witness based on his/her subjective reactions to the favorable treatment that he/she received or hopes to receive in connection with the witness's own criminal involvement is the relevant factor. State v. Mazur, 158 N.J. Super 89, 104-05 (App. Div.), certif. denied, 78 N.J. 399 (1978).

In State v. Spano, 69 N.J. 231, 234-35 (1976), the Court reversed a trial court ruling that precluded the defense from cross-examining a State's witness about her arrest for drug possession and her admission into conditional discharge program. The Court reasoned that "the conditional dismissal of the criminal charge . . . could have motivated her to testify in support of the State's case." The Court held that the defense was entitled to question a prosecution witness about the fact that charges against the witness were dismissed prior to the trial.

In Delaware v. Van Arsdall, 475 U.S. 673, 675-76, 106 S. Ct. 1431, 1433-34, 89 L. Ed. 2d 674, 680-81 (1986), Fleetwood testified for the prosecution at defendant's murder trial. On cross-examination, defense counsel was precluded from questioning Fleetwood about a public drunkenness charge against him that had been dismissed after he had agreed to speak to the prosecutor about the murder. Also, defense counsel was barred from eliciting that Fleetwood had also been questioned by the police concerning an unrelated homicide which occurred while Van Arsdall's case was pending. Id. at 676-77, 106 S. Ct. at 1433-34, 89 L. Ed. 2d at 681-82. On appeal, the Supreme Court held that by "prohibit[ing] all inquiry into the possibility that Fleetwood would be biased as a result of the . . . dismissal of his pending public drunkenness charge," which "a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the [trial] court's ruling violated [Van Arsdall's] rights secured by the Confrontation Clause." Id. at 679, 106 S. Ct. at 1435, 89 L. Ed. 2d at 683.

Here, the trial court erred in ruling that the defense could only question D.P. about the dismissed charges if defense could establish that those charges had been "dismissed as a result of her testifying in this case . . . ," because, "[i]t is clear that formal arrangements with the prosecutor are not a prerequisite for showing bias." Mazur, supra, 158 N.J. Super. at 104.

In Mazur, the trial court made almost exactly the same ruling as in this case. The court ruled that a State's witness could not be questioned about a welfare fraud investigation unless the defense first established that the witness "agreed to cooperate with the police in exchange for immunity from prosecution for welfare fraud." Mazur, supra, 158 N.J. Super. at 103. The record suggested that the prosecution had halted the welfare fraud investigation against the witness in return for his cooperation. Ibid. We held that, "[c]ontrary to the trial judge's assertion, it is not necessary to show that there existed a prior arrangement between the prosecutor and the witness whereby the latter was to receive immunity from criminal prosecution, before his expectations for favorable treatment may be shown as evidence of bias." Id. at 103-104.

Thus, the issue here is not whether the dismissal of the charges against D.P. was part of a deal, or even whether the prosecutor's office believed that there was sufficient evidence to prosecute her. Rather, the issue is what was D.P. thinking when she testified for the State. After the dismissal of the charges against her, D.P. may well have felt indebted to the Prosecutor's Office. On the other hand, she may have had reason to feel that unless she cooperated, the charges might be reinstated. But in either case, the existence of the charges and the reasons for their dismissal were clearly relevant to the issue of bias.

Defendant is entitled to prevail unless the State can show "'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Van Arsdall, supra, 475 U.S. at 680, 106 S. Ct. at 1436, 89 L. Ed 2d. at 684, (quoting Capman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)). In making that determination, an appellate court may consider:

[T]he importance of the witness' testimony in the prosecutor's case whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

[Van Arsdall, supra, 465 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87.]

D.P.'s testimony was, of course, the most important part of the State's case. Both the State and defense agree that credibility was the critical issue before the jury. While the State implies that the error was not significant because it only pertained to the dismissal of a unrelated gun possession charge, the fact is that in Van Arsdall, the Supreme Court recognized that "barring any cross-examination . . . about the dismissal of the public drunkenness charge . . . kept from the jury facts concerning bias that were central to assessing [the witness's] reliability." Van Arsdall, supra, 475 U.S. at 677, 106 S. Ct. at 1434, 89 L. Ed. 2d at 682 (italics in original). Certainly, the jury could have viewed D.P.'s gun possession charge as more serious than public drunkenness.

While the State cites defendant's final statement to the police in support of its contention that the prosecution's proofs were "overwhelming," the fact is that in this statement defendant repeatedly denied any form of sexual penetration on the victim. Likewise, while the State notes that saliva was found in D.P.'s vagina, the saliva was never connected to defendant. Moreover, there was no physical evidence in the form of fingerprints, blood typing, or DNA to show that defendant had been in D.P.'s apartment. Furthermore, there was nothing to prove that he had sexually penetrated her besides her own words.

Therefore, if the jury did not believe D.P.'s testimony about sexual penetration, defendant could not have been convicted of aggravated sexual assault. Because D.P.'s credibility was crucial to the State's case, it is clear that this constitutional violation was not harmless beyond a reasonable doubt. State v. Macon, 57 N.J. 325, 340-41 (1971); State v. Pillar, 359 N.J. Super. 249, 276-80 (App. Div.), certif. denied, 177 N.J. 572 (2003). Therefore, defendant's convictions must be reversed.

III

Before C.S. was scheduled to testify, an issue arose about her testimony. The written alibi notice, presumably proffered by defendant, indicated that C.S. would testify that defendant came home between 5:30 and 6:00 a.m. and that he was "very drunk." The prosecutor objected to C.S. being allowed to testify about defendant's intoxication because it implicated the intoxication defense, see N.J.S.A. 2C:2-8, which defendant had not pled. Initially, the judge ruled that C.S. could not testify about defendant's intoxication because she was not an expert in the field. After defense counsel pointed out that a lay witness could testify and give an opinion based upon his/her observations, the judge agreed, but questioned the testimony's relevance.

Ultimately, the judge determined:

She's an alibi witness. That's what she'll testify to. Observations as to what his demeanor were, limited to the fact that he smelled of alcohol. Nothing more. And the reason I make that ruling is because anything other than that then treads upon the fact and I have to then have a jury having evidence before them that a defendant was staggering drunk at the time that he entered this lady's house for the purpose of her testimony being an alibi and then I may end up clouding the waters with a defense that wasn't pleaded. So I'm not allowing it. That's my position.

At trial C.S. testified that defendant arrived home between 5:30 and 6:00 a.m. When he arrived, defendant "seemed to have been drinking" and "smelled of liquor."

Defendant claims that the trial court erred in barring C.S. from testifying that defendant returned home intoxicated on the night of the crime. The State argues that defendant was permitted to present alternate, sufficient evidence of his intoxication.

"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment . . . the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986) [citations omitted]. Furthermore, "a defendant in a criminal trial has a Sixth Amendment right to offer any evidence that refutes guilt or bolsters a claim of innocence". State v. Harris, 156 N.J 122, 177 (1998), certif. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001).

Neither, defendant nor the State dispute that a non-expert may give an opinion on matters of common knowledge and observation. State v. Bealor, 187 N.J. 574, 586 (2006) (citing N.J.R.E. 701). That includes an opinion that defendant was intoxicated. Id. at 585. "[T]he average witness of ordinary intelligence, although lacking special skill, knowledge and experience but who has had the opportunity of observation, may testify whether a certain person was sober or intoxicated." State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960).

Here, the judge expressed concern about relevance and the confusion that might result from the testimony. Defendant argues that C.S.'s testimony was relevant to the issue of identity since D.P. never mentioned that her attacker smelled of alcohol, an argument not asserted below.

"'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In determining whether evidence is relevant, the inquiry should focus upon "the logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1996)). Testimony that defendant was "very drunk" and "staggering" has a logical connection to the issue of identity. D.P. did not state that defendant smelled of alcohol and thus there is a connection that if defendant was "staggering drunk" at D.P.'s apartment she would have perceived it. This testimony would have aided the jury in determining a fact in issue as to whether defendant was in fact the person who had assaulted D.P.

Nonetheless, N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . confusion . . . ." That is, relevant evidence may broach immaterial or unrelated issues that would only confuse the jury. The court must balance the probative value of the evidence against the potential confusion it may create. See State v. Millett, 272 N.J. Super. 68, 88-89 (App. Div. 1994).

We conclude that the judge misapplied his discretion in excluding the proffered testimony. The State had no forensic evidence proving that defendant had committed an act of penetration. The matter was presented to the jury as a test of credibility of witnesses between defendant and D.P. Furthermore, the court charged the jury on alibi and told the jurors that in support of that defense, they could consider the testimony of C.S. This charge would have ameliorated any confusion the jury may have had as to construing the proffered testimony as a defense not pleaded. In any event, we fail to see how the jury might invoke an intoxication defense without a jury charge on that subject. The proffered evidence, defendant being "very drunk" and "staggering", was highly probative and was not substantially outweighed by any potential confusion of the jury.

We still must determine whether this exclusion constituted harmful error requiring reversal. "Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); R. 2:10-2. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Burton, supra, at 289.

We need not decide whether this error standing alone would require a reversal because of our ruling concerning the cross-examination of D.P. In any event, in combination the two errors leave us with no doubt that defendant was prejudiced by the judge's erroneous rulings. The excluded evidence had the clear capacity to influence the jury. Pillar, supra, 359 N.J. Super. at 279.

IV

In light of our disposition we have no need to address defendant's arguments relating to the prosecutor's summation.

Reversed and remanded for a new trial.

The State's theory was that the man gained access to the apartment by climbing a fire escape and entering through D.P.'s bedroom window. Police testified that the window was partially open and the screen was cut. D.P. testified that the screen was intact and the window closed prior to the incident.

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

In defendant's confession, he stated that he was with D.P. in the early morning of January 20, 2000; thus, the issue of identity is not a strong argument. However, because a jury could have rejected the confession, defendant still had the right to assert this defense.

(continued)

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A-3400-03T4

RECORD IMPOUNDED

November 5, 2007