STATE OF NEW JERSEY v. MANUEL O. MARTINEZ

(NOTE: The status of this decision is .)
N.J.S.A. 2C:7-2. "> 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0123-07T40123-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL O. MARTINEZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 5, 2008 - Decided

Before Judges Sapp-Peterson and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-06-0570.

James R. Swift, attorney for appellant.

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (James O. Turner, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Manuel Martinez appeals from his July 13, 2007 conviction following a trial by jury on a charge of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced him to a term of five years imprisonment and assessed reasonable fines and penalties. The judge also imposed community supervision for life and required defendant to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-2.

On appeal, defendant presents the following arguments for our consideration:

I. DID THE STATE PRODUCE SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT THE DEFENDANT HAD A LEGAL DUTY OF CARE OR ASSUMED RESPONSIBILITY FOR THE CARE OF A.R.

II. THE TRIAL COURT ERRED IN NOT GRANTING A MOTION FOR MISTRIAL AFTER THE VICTIM TESTIFIED THAT SHE WAS HOSPITALIZED RECENTLY AS A RESULT OF A SUICIDE ATTEMPT SHE MADE BECAUSE OF THE UPCOMING TRIAL.

We affirm.

I.

A.R. was approximately ten-years-old in 1997 when the Division of Youth and Family Services (DYFS) removed her from her mother's custody because her mother failed to obtain proper medical treatment for A.R.'s diabetes. After a few brief foster placements, DYFS placed A.R. with her maternal grandmother in Cumberland County. Defendant, who was A.R.'s grandmother's husband, also lived there along with A.R.'s sister, aunt and uncles. According to A.R., on numerous occasions when she was alone with defendant, he sexually assaulted her. We will not describe the details of those assaults because defendant does not challenge the sufficiency of the evidence concerning his conduct. Instead, we confine our discussion of the record to the two points defendant raises on appeal, the first of which is his contention that the evidence in the record was insufficient to establish that he assumed responsibility for the care of A.R., an element which elevates the crime to a second-degree offense.

According to A.R.'s testimony, when she was approximately thirteen years old, there were many occasions when she was home alone with defendant while he took care of her:

Q. While you were living with him . . . with those people, did there ever come a point in time when he took care of you?

A. When my grandmother would go to work.

Q. While living with him, did there ever come a point in time when you would be alone with him?

A. Yes.

Q. Let's talk about that. You just described that you're living in a house with a lot of people living in it. How did it come to be that you were alone with him?

A. My grandmother, she was working, and my uncles would be out and my sister, I believe, had a job at the time.

A.R. also explained that on one of the occasions when defendant sexually assaulted her, she was home alone with defendant because she was suspended from school. A.R. was also asked whether, when she was living with defendant and her grandmother at the age of thirteen, defendant "care[d] for [her]." She answered, yes. On cross-examination, A.R. was asked how frequently defendant took care of her:

Q. Was it frequently that [defendant] would actually have to take care of you?

A. I'd say frequently, I guess, because she was working at the time.

She testified that defendant sexually assaulted her "all the time whenever he was around and we weren't with anybody else."

We will now describe the testimony that caused defendant to request a mistrial. During A.R.'s testimony, the prosecutor asked her how old she was when she first revealed what defendant had done to her. She answered that when she was fourteen, while she was in the hospital, her sister and aunt found her diary, which described defendant's conduct. When the prosecutor asked her why she was hospitalized, she answered "I tried to commit suicide." There was no objection from the defense to that question. The prosecutor then asked A.R. whether that was the only occasion on which she was hospitalized. A.R. answered that she was also in the hospital "this past July," which was approximately seven months before the trial began in February 2007. When the prosecutor asked A.R. why she was hospitalized in July 2006, she answered that she had tried to commit suicide, but did not specify the reasons for her suicide attempt. Shortly thereafter, the prosecutor asked A.R. whether "what happened to [her]" had had any lasting effect. A.R. answered that she suffers from nightmares. She also said that as the trial date neared, she became upset "and that was one of the reasons why I tried to kill myself." The defense did not object to the reference to the July 2006 suicide attempt; however, the judge asked counsel to come to sidebar, where he explained that he intended to instruct the jurors after A.R. completed her testimony that they should disregard A.R.'s testimony about her July 2006 suicide attempt.

At sidebar, the prosecutor explained that she had not had the opportunity to prepare A.R. for trial because A.R. was reluctant to discuss the incidents with her. Consequently, the prosecutor insisted, she had no idea that A.R. would make any reference to a July 2006 suicide attempt, about which the prosecutor said she knew nothing. After hearing further argument, the judge rejected the State's request that he refrain from striking the testimony. Defense counsel said that he would "reserve [his] motion for a mistrial."

The State also produced the testimony of Detective Luis Negron, who testified that on April 16, 2003, when A.R. was sixteen-years-old, she went to police headquarters to report defendant's conduct. According to his testimony, the incidents had ended some three years earlier. The defense rested without calling any witnesses.

During the charge conference, defendant made a motion for a judgment of acquittal, in which he argued that the evidence was insufficient to prove that he had assumed responsibility for the care of A.R., which is a necessary element of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The judge denied the motion, but agreed to charge the jury on the lesser included offense of third-degree endangering the welfare of a child, which does not require the State to prove that a defendant assumed responsibility for the care of the child in question.

During the charge conference, defendant also made a motion for a mistrial based upon A.R.'s testimony of her July 2006 suicide attempt. The judge denied defendant's motion; however, he stated that he intended to strike the testimony of the July 2006 suicide attempt and provide the jury with a curative instruction. During the jury charge, which took place the day after A.R.'s testimony, the judge issued the following curative instruction:

[T]here's some testimony that . . . should be stricken from the record. . . . [T]oward the end of [A.R.'s] testimony, she stated in response to a question by the prosecutor that she had attempted suicide, ostensibly as a result over anxiety of giving testimony about her alleged experiences. I have found that that testimony is irrelevant to the issues before you and potentially prejudicial, and I instruct you to disregard [that] testimony. I am striking [it] from the record.

At the outset of my instructions, I told you that it's necessary to have a jury listen to the evidence and determine what the facts are without passion, prejudice or sympathy. You, as jurors, have taken an oath to do that, and so, if any one of you feels that you cannot follow my instruction and my direction to disregard the testimony that I just described to you, you need to reveal that to me right now. Can you all follow that instruction? Is there anybody who feels that they can't?

The record will reflect that no jurors indicated an inability to do that.

Neither side voiced any objection to the wording of that curative instruction. After deliberating, the jury reached the verdict we have described.

II.

We begin by analyzing Point I in which defendant argues that the jury's determination that he had assumed responsibility for the care of A.R., and was consequently guilty of second-degree endangering the welfare of a child, rather than third-degree, was against the weight of the evidence.

On appeal, we apply the same standard the trial court did when it evaluated defendant's motion for a judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). At the close of the State's case, the court must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must deny the motion if viewing the State's "evidence in its entirety" and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007).

Relying on State v. Galloway, 133 N.J. 631, 657-62 (1993), defendant argues that the evidence was insufficient to establish that he "had assumed a caretaking function over the child on a continuing, regular or recurrent basis" as Galloway requires. Id. at 662. Again relying on Galloway, id. at 661-62, defendant argues that "a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting, would be chargeable with child endangerment [only] in the fourth-degree."

In support of his argument arising under Galloway, defendant points to the following testimony in the record: during the first incident, A.R. was only seven-years-old, and was presumably living with her mother and not with her grandmother and defendant; during the incidents when A.R. was thirteen-years-old, she needed no help in caring for herself; defendant was a truck driver who was frequently away from home for periods of two to three weeks at a time; and defendant only cared for A.R. when her grandmother was working and the other members of the family were not at home. From these facts, defendant argues that the evidence was not sufficient to establish that he had assumed a caretaking function over A.R. on the continuing, regular or recurrent basis that Galloway requires. We disagree.

Defendant's analysis of Galloway ignores the Court's holding that evidence of a defendant assuming responsibility for the care of a child may arise not only from a formal legal arrangement, but from "informal arrangements" as well. Id. at 661. As the Court observed, the more serious form of child endangerment "may arise from cohabitation with the child's parent," ibid, so long as the defendant has "established a continuing or regular supervisory or caretaker relationship with the child that would justify the harsher penalties of the [then] third-degree crime of child endangerment under N.J.S.A. 2C:24-4." Ibid.

We are mindful that Galloway refers to cohabitation with the "child's parent," ibid, rather than with a child's grandparent, which is the case here. Under the circumstances here, where DYFS removed A.R. from her mother's custody and placed her with her grandmother, who acted in loco parentis, we see no meritorious basis to conclude that the distinction between a defendant living with the child's parent and living with the child's grandparent is of any significance.

Moreover, the facts here are markedly different from Galloway, where the Court reversed the defendant's conviction because the evidence of a caretaking relationship was insufficient. There, the defendant did not live with the infant victim and the infant's mother. He had dated the mother for only three months and visited her only once a week. He had never before been left alone with the baby or asked to care for him. Id. at 662.

Here, in contrast, the undisputed evidence established that defendant and A.R. lived together in the same household for several years. The grandmother expected defendant to care for A.R. while she was at work, which he did. He did so not sporadically, but according to A.R., "frequently." We are satisfied that the requirement of having assumed a general and ongoing responsibility for the care of a child, as required by Galloway, was satisfied. Consequently, we reject defendant's argument that the evidence was insufficient to justify his conviction for second-degree, rather than third-degree, endangering the welfare of a child.

III.

We turn next to defendant's argument in Point II that the denial of his motion for a mistrial entitles him to a new trial. We review the trial judge's decision for an abuse of discretion. State v. Winter, 96 N.J. 640, 646-47 (1984). As the Court observed in Winter, the decision whether inadmissible evidence can be cured by a cautionary instruction or "instead requires the more severe response of a mistrial," is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Ibid. In Winter, the Court began its analysis by observing:

In addressing the question of what standards should guide a trial court on whether to issue curative instructions or grant a mistrial, we are mindful of the dynamics that are necessarily a part of our adversary system. Not all the variables are capable of absolute control. The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that "[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . .; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently."

[Id. at 646 (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968)).]

Not only are we obliged to afford deference to a trial court's determination of whether the inadmissible evidence should be rectified by a curative instruction, we are also obliged to give deference to the trial judge's determination concerning the content of the curative instruction. Id. at 647. The Court held:

The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached. However, even in the context of an error of constitutional magnitude, this Court has stated that "not 'any' possibility can be enough for a rerun of the trial. 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."

[Ibid. (citations omitted)]

Here, of course, the offending evidence was not of constitutional dimension. For example, the jury did not hear evidence that defendant was, as in State v. La Porte, 62 N.J. 312, 318 (1973), wanted in another community for a robbery. In Winter, the Court specified some factors that a reviewing court may evaluate when it reviews the adequacy of a trial court's curative instruction. Those factors include how quickly the judge acted to strike the offending remark, whether the judge asked the jurors to acknowledge their understanding of the judge's instruction to disregard the offending testimony, whether the jurors were asked to notify the judge if they were unable to comply with the instruction to strike the evidence and whether the instruction was emphatic and direct or instead, vague or imprecise. Winter, supra, 96 N.J. at 648-49.

We turn first to the judge's threshold decision to deny defendant's request for a mistrial. Giving the trial judge's decision the deference to which it is entitled under Winter, we are satisfied that the judge's decision was correct. The judge was only required to have granted the motion for a mistrial if the offending evidence could have led the jury to a result "it otherwise might not have reached." Id. at 647. Here, the jury had already heard testimony of A.R.'s suicide attempt at age fourteen. That evidence came in without objection. Consequently, we cannot quarrel with the judge's conclusion that A.R.'s brief reference to her second suicide attempt in July 2006 was susceptible of being rectified by a curative instruction. Stated differently, the capacity of A.R.'s reference to her July 2006 suicide attempt to produce an unjust result is blunted considerably by her earlier reference to a suicide attempt at age fourteen. Had her reference to the July 2006 suicide attempt been the first and only such reference, the capacity for prejudice would have been far greater. Consequently, we conclude that the judge was on solid ground when he concluded that the prejudice could be eliminated by a curative instruction and consequently denied defendant's motion for a mistrial.

We turn next to an application of the criteria the Court articulated in Winter for evaluating the adequacy of the curative instruction. Although the judge chose to wait until the next day to issue the curative instruction because he did not want to issue it while A.R. was still in the courtroom for fear of embarrassing her, we are satisfied that the lapse of less than a day between the time of the offending remark and the giving of the curative instruction was not prejudicial to defendant. We reach this conclusion because the curative instruction was quite emphatic and was accompanied by an inquiry to the jurors concerning whether they were able to abide by the judge's instruction to disregard the offending remark. All of the jurors assured the judge that they were able to do so. Under all the circumstances, we conclude that the curative instruction was forceful and effective. Consequently, we reject the argument defendant raises in Point II.

Affirmed.

In some portions of the record, defendant is referred to as A.R.'s grandmother's husband and in other portions he is referred to as the grandmother's boyfriend. This distinction has no bearing on the issues presented on appeal.

At the time Galloway was decided, the crime of endangering the welfare of a child was graded differently from its present grading. At that time, what is now second-degree endangering was only a third-degree crime. What is now the third-degree form of the crime was then a fourth-degree crime.

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A-0123-07T4

RECORD IMPOUNDED

August 15, 2008