STATE OF NEW JERSEY v. T.W.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4210-04T44210-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.W.M.,

Defendant-Appellant.

________________________________________

 

Submitted September 24, 2007 - Decided:

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 02-09-0847.

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

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Christina E. Foglio, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant T.W.M. was convicted of several offenses stemming from his sexual abuse of "Diane," the twelve-year-old daughter of his paramour. Specifically, defendant was convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second degree sexual assault, N.J.S.A. 2C:14-2b (count two); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. The Adult Diagnostic and Treatment Unit determined that defendant was not a compulsive sex offender. The judge imposed concurrent state prison terms aggregating fifteen years with a NERA parole disqualifier.

Prior to trial, defendant sought to bar the prosecution's use of an oral statement, which he made to police, and to exclude DNA evidence taken from a blanket from the bed where the sexual assault of Diane allegedly took place. With respect to the oral statement, the judge ruled that it was admissible.

Regarding the DNA evidence, the prosecutor represented to the judge that the proofs would show that: (a) defendant sexually assaulted Diane on a blanket (marked S-4 in evidence), which was taken by the police as evidence; (b) there was a stain on the blanket which was composed of both sperm and non-sperm matter; and (c) DNA tests disclosed that defendant's DNA was found in the sperm portion of the stain on the blanket, and that there was a likelihood that defendant's DNA was present in the non-sperm portion of the stain.

Defendant moved to exclude the DNA evidence, arguing he lived in that bedroom for over eight years, during which time he and Diane's mother were sexually intimate. Counsel urged the judge to exclude the evidence because it was not surprising or probative to find defendant's DNA in a stain on a blanket on his own bed. Defense counsel further argued that DNA testimony should be excluded because of the lack of probative value, and because of the prejudice and confusion that the evidence would cause the jury. The judge ruled that the evidence was inadmissible pursuant to N.J.R.E. 403.

The State moved for reconsideration and presented the testimony of Robin Schwartz, a forensic scientist employed by the New Jersey State Police. Schwartz testified that buccal swabs were taken from defendant and from Diane. These samples were compared to the DNA extracted from the stains on the blanket. According to Schwartz, defendant was the source of the sperm portion of the stain on the blanket and could not be excluded as being a source of the non-sperm portion of the stain on the blanket. Schwartz also opined that the non-sperm portion of the stain had at least two other contributors, and that Diane could not be excluded as a partial contributor to the stain. The State represented that the blanket was under Diane and defendant when the assault occurred. Upon reconsideration, the judge ruled that the DNA evidence was not as confusing as he had originally believed and decided to admit the DNA evidence.

The trial proofs are summarized as follows. Defendant is the longtime boyfriend of Diane's mother. He has had a relationship with Diane's mother for nine years. Defendant is also the biological father of three of Diane's younger siblings. Occasionally, defendant stayed at Diane's mother's apartment and sometimes only visited on weekends. On July 23 through July 25, 2002, Diane's mother was in the hospital giving birth to defendant's child. Therefore, defendant moved temporarily into the house to care for the other children, including Diane. During the daytime, defendant's mother cared for the children. At night, when defendant returned from work, his mother would leave and he would resume the caretaking responsibilities for the children.

According to Diane, on July 23, 2002, shortly after midnight, she was asleep in her mother's bedroom. Her younger sister was on the bed with her when she went to sleep. While asleep on her stomach, Diane awakened to find defendant on top of her. Her nightgown was over her head and her panties were down. Diane felt defendant's penis inside her vagina. Defendant was moving around and moaning. Defendant asked her if she was okay. Then he stopped and left the bedroom. Diane noticed that her sister was no longer in the bed.

On the following night, Diane went to bed in her mother's bed with several of her siblings. She was wearing a nightgown and panties. Again, Diane awakened to find defendant pressing against her vagina. Her nightgown was off and her panties were down around her legs. Her hands were inside strings that were used to hold up the mattress. She felt something gooey on her back. Diane did not scream because she did not want to awaken her siblings. Defendant took out a knife that he kept in the nightstand and told Diane not to tell "or else." After defendant left the bedroom, Diane went to the bathroom. She found blood in her underwear and on the toilet paper when she wiped herself. The next morning, when Diane woke up, defendant was in the bedroom. He touched her chest with his hands and told her that she was a "foxy lady."

Diane told defendant's mother what happened. Defendant's mother slapped her and told her not to lie about her son. Eventually, Diane told her own mother what had taken place and her mother took her to the hospital.

Diane's mother testified that on July 26, 2002, defendant was arrested at her home for domestic violence. After defendant was arrested, Diane told her that defendant had sexually assaulted her. Diane's mother took her daughter to the hospital for an examination. At the hospital, Diane gave a statement to the police and a DYFS investigator. Diane's mother permitted the police to seize a knife from the bedstand next to her bed and a blanket (S-4) from her bed. At trial, the knife was identified by Diane as the knife she was threatened with by defendant.

Millville Police Sergeant Edward Zadroga testified

that Diane gave a taped statement inculpating defendant. After defendant was arrested, he was advised of his Miranda warnings. Subsequently, defendant gave an oral statement.

Martin Finkel, M.D., a pediatrician, testified that he examined Diane on July 31, 2002. He observed a number of superficial abrasions and small tears on the skin around Diane's clitoral head. In his opinion, that type of trauma can be caused by a penis rubbed against the clitoral head area.

New Jersey State Police Forensic Scientist, Raymond Klama, testified that he examined the panties that Diane was wearing on the night of the sexual assault and did not detect the presence of sperm. The panties did show, however, a "very weak positive presumptive" result for the presence of blood. Klama also tested the blanket and found the presence of sperm. However, he stated that it was impossible to determine the age of the stain. The blanket was then sent to Orchid Cellmark Laboratory in Dallas, Texas, for DNA testing.

Deidra Ward, a forensic chemist at Orchid Cellmark, qualified as an expert witness in DNA. Ward testified that the blanket that was sent to Orchid Cellmark by the New Jersey State Police was examined for DNA. According to Ward, the blanket contained a stain that had a sperm "fraction" and a non-sperm "fraction." Genetic DNA profiles of at least three contributors to the stain were developed. The sperm fraction of the stain came from one donor. The non-sperm fraction of the stain came from that same donor, and at least two other unknown donors. Ward opined that it was impossible to determine the age of the stain.

New Jersey State Police Forensic Scientist, Marlene Strauss, an expert in DNA analysis, testified that defendant was the source of the sperm part of the stain found on the blanket. Strauss also opined that defendant could not be excluded as a partial contributor of the non-sperm part of the stain on the blanket.

Robin Schwartz, another New Jersey State Police Forensic Scientist and expert in DNA analysis, testified that defendant was the source of the sperm part of the stain that was found on the blanket and could not be excluded as a partial contributor of the non-sperm part of the stain on the blanket in a fraction of 1 out of 3330 of the African-American population. Schwartz also opined that Diane and her mother could not be excluded as being partial contributors to the non-sperm part of the stain on the blanket.

Dr. Richard Saferstein, an expert in DNA analysis and forensic science, testified as a defense witness. Dr. Saferstein testified that because both defendant and Diane's mother slept in the bed from which the blanket was seized for a period of eight years, the DNA testimony adduced by the State's witnesses had very little significance.

Defendant moved for a mistrial based on the State's failure to positively identify that the blanket seized by the police was, in fact, the same blanket on which defendant sexually assaulted Diane. The judge denied the motion and instead, permitted the State to reopen its case and recall Diane as a witness for the purpose of identifying the blanket. Diane testified that the blanket belonged to her mother, but she was unable to identify it as the blanket on her mother's bed when she was assaulted by defendant.

The judge again denied the motion for a mistrial and decided to strike all the testimony concerning DNA from the record. He gave the following cautionary instruction to the jury:

I have stricken all of the testimony relating to the DNA evidence. Thus, the testimony relating to DNA should not be considered by you during your deliberations for any purpose.

Defendant's mother testified that Diane never told her that defendant touched her inappropriately. She also denied slapping Diane.

Defendant testified that he and Diane's mother fought often. According to defendant, Diane's mother rarely did laundry and the blanket on her bed was seldom cleaned. Defendant also admitted to instances of domestic violence in the house. He stated that Diane always had "an attitude" towards him and did not listen to him. However, defendant testified that he never disciplined or hit Diane because she was not his child and because she was a girl.

Defendant testified that he slept on the couch during the first night he was there. He stated that Diane and her two younger sisters slept in their mother's bedroom. Defendant recalled that when he returned to watch the children on the second night, he yelled at Diane for letting her younger siblings play outside. As a result, Diane had "an attitude for a couple of hours." Defendant testified that on the second night, he slept on the bed with two of the boys. Diane and the other girls slept in the second bedroom. Defendant denied inappropriately touching or sexually assaulting Diane.

On appeal, defendant raises three contentions regarding the DNA evidence. These are:

THE MOTION COURT'S INITIAL RULING PRECLUDING THE DNA EVIDENCE UNDER N.J.R.E. 403 WAS CORRECT AND ITS SUBSEQUENT RULING ADMITTING THE DNA TESTIMONY OF STATE'S WITNESSES RAYMOND KLAMA, DEIDRA WARD, MARLENE STRAUSS, AND ROBIN SCHWARTZ WAS THE RESULT OF PROSECUTORIAL MISREPRESENTATION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE THE EVIDENCE WAS IMPROPERLY USED BY THE PROSECUTOR AS PROOF OF DEFENDANT'S GUILT AND 'TO CORROBORATE THE VICTIM'S STORY.'

THE PROSECUTOR COMMITTED REVERSIBLE ERROR BY MISREPRESENTING TO THE COURT AND TO THE JURY THAT THE BLANKET (S-4) WAS EVIDENCE OF THE DEFENDANT'S GUILT AND "CORROBORATED THE VICTIM'S STORY."

THE TRIAL COURT ABUSED ITS DISCRETION IN ATTEMPTING A CURATIVE INSTRUCTION INSTEAD OF DECLARING A MISTRIAL.

We disagree with defendant that it was error for the judge to permit the DNA evidence upon a motion for reconsideration. This was a discretionary ruling. Given the prosecution's proffer, it was not an abuse of discretion to allow the jury to hear this evidence. State v. Feaster, 156 N.J. 1, 82-83 (1998).

However, when the prosecution failed to establish that the blanket from Diane's mother's bed was under the victim at the time of the sexual assault, the judge had no choice but to strike all of the DNA evidence. Therefore, we conclude that the judge was correct in striking the evidence. We also reject defendant's contention that the Assistant Prosecutor committed misconduct, warranting reversal, based on the proffer regarding DNA evidence.

The crux of this appeal is whether the appropriate remedy flowing from the exclusion of the DNA evidence was a mistrial or a curative instruction. We reverse the conviction, concluding that a mistrial was warranted when the judge directed the jury to disregard a substantial portion of the DNA evidence presented by the State. A curative instruction and continuation of the trial with the same jury denied defendant a fair trial.

The decision on whether inadmissible evidence may be cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, "is one that is peculiarly within the competence of the trial [court], who has the feel of the case and is best equipped to gauge the effect . . . on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). Thus, a decision to attempt a curative instruction, instead of declaring a mistrial, is addressed to the sound discretion of the trial court. State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). However, a trial court is circumscribed by controlling legal principles. State v. Gilchrist, 381 N.J. Super. 138, 143 (App. Div. 2005). One of those rights, a bedrock principle of our criminal jurisprudence, is that the defendant is entitled to a fair trial and the court must protect that right. State v. Williams, 184 N.J. 432, 443 (2005) (citing Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984)).

Here, the balance between defendant's right to a fair trial against the relatively minor inconvenience of trying the case over, supports the conclusion that a mistrial was the only acceptable remedy. We are mindful of the worthy goal of preserving judicial resources by avoiding a mistrial if a limiting instruction will correct an error. See State v. Hightower, 146 N.J. 239, 254 (1996) (holding that "juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort to avoid the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial"). However, this worthy goal must yield to the defendant's right to a fair trial. Williams, supra, 184 N.J. at 443.

Moreover, the curative instruction was inadequate. The jury was not specifically advised as to what testimony given by which witness related to the now excluded DNA evidence. The jury was also not advised why, after listening to four scientific experts testify, they were suddenly ordered to completely discount what they heard and observed. Under these circumstances, the jury might be unable to abide by the instruction, "not because the jurors are not sober and conscientious, but because they are human and, realistically, will be unable to abide by a limiting instruction." State v. Fortin, 162 N.J. 517, 536 (2000) (Long, J., concurring in part and dissenting in part).

Defendant also contends that "other crimes" evidence was improperly admitted. He argues:

THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY, SUA SPONTE, AS TO HOW EVIDENCE THAT THE DEFENDANT COMMITTED ACTS OF DOMESTIC VIOLENCE COULD PROPERLY BE CONSIDERED BY THE JURY (NOT RAISED BELOW).

TESTIMONY THAT THE DEFENDANT WAS IN JAIL DURING THE SUMMER OF 2003 CONSTITUTED HARMFUL ERROR.

For the guidance of the judge upon a retrial, we address these issues.

With respect to defendant's prior acts of domestic violence against Diane's mother, we note that defendant opened the door to this testimony in order to demonstrate Diane's motive for trying to harm defendant. However, despite the fact that defendant opened the door to this line of questioning during his opening statements and on cross-examination at a retrial, the judge must give a curative instruction as to the proper use of this evidence. State v. James, 144 N.J. 538, 554 (1996); see also State v. Farthing, 331 N.J. Super. 58, 81 (App. Div.), certif. denied, 165 N.J. 530 (2000).

The judge should have provided a limiting instruction, sua sponte, regarding defendant's prior acts of domestic violence. However, this failure was not plain error. Thus, we will not reverse for this transgression alone. State v. Krivacska, 341 N.J. Super. 1, 42-44 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). Trial counsel's failure to object "gives rise to a presumption" that counsel did not view the now alleged error as prejudicial to the defense. State v. McGraw, 129 N.J. 68, 80 (1992). We are not persuaded that "the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Detective Martinez testified that he went to the County Jail to collect defendant's buccal swab. He immediately corrected himself and stated he went "somewhere in Bridgeton." The error was brought to the judge's attention in a subsequent motion for a mistrial. The judge allowed defense counsel to state what jury instruction should be given. Defense counsel subsequently decided that the curative instruction should be given during the jury charge. Accordingly, the curative instruction was given at that time. The judge explained to the jury that it is normal for an individual to be in custody during a criminal investigation, and the fact that defendant was in the County Jail shall have no bearing on the evidence presented. Thus, we conclude that Martinez's reference was harmless error. It was a brief reference that was not repeated. Moreover, the jury knew that defendant was in custody on this charge because defendant was arrested shortly after giving an oral statement. Furthermore, the judge gave the jury a curative instruction. In short, the harmful effect of the remark could be sufficiently eradicated by immediate and strong admonitory instructions to the jury. Paxton v. Misiuk, 54 N.J. Super. 15, 23-24 (App. Div. 1959), aff'd, 34 N.J. 453 (1961); see also Purpura v. Public Service Electric & Gas Co., 53 N.J. Super. 475, 480-81 (App. Div.), certif. denied, 29 N.J. 278 (1959) (holding that a judge must guard against prejudice through proper instruction to the jury); Haid v. Loderstedt, 45 N.J. Super. 547, 554 (App. Div. 1957).

Defendant also contends:

THE MOTION COURT COMMITTED HARMFUL ERROR BY FAILING TO APPLY A "TOTALITY OF THE CIRCUMSTANCES ANALYSIS" IN ADMITTING THE DEFENDANT'S ORAL STATEMENT INTO EVIDENCE.

We disagree.

The judge's finding that defendant's oral statement to the police was made knowingly and voluntarily and constituted a waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is amply supported by the proofs. State v. Johnson, 42 N.J. 146, 157-58 (1964). The State met its burden by proving beyond a reasonable doubt that defendant waived his Miranda rights. State v. Adams, 127 N.J. 438, 447 (1992).

We perceive no error in the judge's denial of the motion to exclude defendant's oral statement. We note that, although it is odd that the police officer did not get defendant to execute a written waiver of his Miranda rights, the judge's findings are supported by the proofs. Accordingly, we must defer to his credibility determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant further contends that:

THE PROSECUTOR'S CROSS-EXAMINATION OF DR. SAFERSTEIN IMPROPERLY IMPUGNED THE INTEGRITY OF DEFENSE COUNSEL AND THE CREDIBILITY OF THE DEFENSE (NOT RAISED BELOW).

We perceive nothing wrong with the manner in which the prosecutor examined the defense expert regarding his compensation for testifying.

Because there will be no DNA testimony at a new trial, the point is moot. However, we conclude that the prosecutor's questions regarding Dr. Saferstein's fees were not improper and did not deny defendant his right to a fair trial. A prosecutor may challenge a witness's credibility by inquiring about the witness's professional fees. A jury may be charged concerning compensation of experts where appropriate. A prosecutor may not, however, imply that the amount of compensation influenced the expert to testify a certain way to ensure future employment, unless there is some basis for that conclusion. State v. Smith, 167 N.J. 158, 183-184 (2001).

Defendant also contends:

THE TRIAL COURT ABUSED ITS DISCRETION AND APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

This issue is moot.

Defendant also challenges his sentence. He contends:

THE FIFTEEN (15) YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE AGGRAVATED SEXUAL ASSAULT ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

IMPOSITION OF A BASE SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED SENTENCE OF TEN (10) YEARS FOR A FIRST DEGREE OFFENSE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED SENTENCE OF TEN (10) YEARS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

Given our decision to vacate the convictions, we decline to address the sentences, which are vacated.

Summarizing, the admission of defendant's oral statement is affirmed, the convictions are reversed, and the matter is remanded for a new trial consistent with this opinion. We do not retain jurisdiction.

 

"Diane" is a fictitious name used in this opinion to protect her identity. She is identified in the record as "D.E."

No Early Release Act N.J.S.A. 2C:43-7.2.

(continued)

(continued)

18

A-4210-04T4

RECORD IMPOUNDED

November 20, 2007