STATE OF NEW JERSEY v. PAUL BURKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6005-05T46005-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL BURKE,

Defendant-Appellant.

______________________________________

 

Submitted March 5, 2008 - Decided

Before Judges Cuff, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-10-1091.

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

Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On October 18, 2005, the Mercer County Grand Jury charged defendant, Paul Burke, under Indictment No. 05-10-1091, with four counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one, six, nine and thirteen); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts five, eight, and sixteen); second-degree robbery, N.J.S.A. 2C:15-1 (count twelve); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts two, three, seven, ten, and fourteen); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts four and fifteen); and fourth-degree sexual contact, N.J.S.A. 2C:14-3(b)(1) (count eleven).

Following a seventeen-day jury trial, defendant was acquitted on counts two, five and eight, however, the jury found defendant guilty of the lesser included offense of criminal restraint. The jury rendered a guilty verdict on two counts of first-degree kidnapping (counts six and eleven), three counts of second-degree sexual assault (counts seven, nine and twelve), second-degree sexual contact (count ten) and third-degree terroristic threats (count thirteen). The jury was unable to reach a verdict on counts one, three and four, and the State dismissed those counts along with the original count eight and counts fourteen through sixteen.

Judge Bielamowicz sentenced defendant to a period of incarceration on each conviction as follows: on count six, twenty-five years, subject to an eighty-five percent period of parole ineligibility under the "No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2, with five years' parole supervision upon release; on count seven, ten years subject to NERA, and three years' parole supervision upon release, to run concurrent with the sentence on count six; on count eight, five years to run concurrent with the sentence on count six; on count nine, ten years subject to NERA, with three years parole supervision upon release, to run concurrent with the sentence on count six; on count ten, eighteen months, to run concurrent with the sentence on count six; on count eleven, twenty-five years subject to NERA, with five years parole supervision upon release, to run concurrent to the sentence on count six; on count twelve, nine years subject to NERA, with three years parole supervision upon release, to run consecutive to the sentence on count six; and on count thirteen, four years, concurrent to the sentence on count six. Megan's Law, N.J.S.A. 2C:7-1 to -11 applied to counts seven, nine, and twelve. Appropriate fines, penalties and assessments of $2,630 were imposed.

On appeal defendant urges reversal of his conviction, arguing:

POINT I.

BY IMPROPERLY JOINING FOUR SEPARATE AND UNRELATED OFFENSES FOR TRIAL, THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.

POINT II.

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE ADMISSION OF IMPROPERLY AND UNNECESSARILY DETAILED TESTIMONY UNDER THE GUISE OF "FRESH COMPLAINT."

POINT III.

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IRREPARABLY DAMAGED BY THE ADMISSION OF IRRELEVANT AND HIGHLY PREJUDICIAL OTHER-CRIMES EVIDENCE. (Partially Raised Below.)

POINT IV.

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR, DELIBERATELY AND FOR NO LEGITIMATE PURPOSE, ELICITED FROM [C.J.] HER DISCOVERY, AS A RESULT OF HER POST-INCIDENT MEDICAL EXAMINATION, THAT SHE HAD BEEN IN AN EARLY STAGE OF PREGNANCY AT THE TIME OF THE INCIDENT.

We affirm.

I

The charges in the indictment emanated from a series of sexual assaults and related crimes in Trenton. We gather the following facts regarding the attacks on the four victims from the evidence presented at trial.

On April 3, 2002, C.F., a janitor at the Joyce Kilmer Elementary School, left work around 10:15 p.m. and stopped at her sister's residence. C.F. consumed alcohol, smoked marijuana, and played cards. Also, C.F. was taking Marinol to stimulate her appetite. When C.F. left her sister's home, she walked down Stuyvesant Avenue toward the bus stop. As she walked, she saw a man flash the lights of his automobile and heard him repeating the word "yo." The man stopped his car, exited, and pulled her "by the hair" into his vehicle.

C.F. described the man as a "real big guy" with a dark complexion, wearing a skull cap. She explained he took her to a shack on Witherspoon Street. C.F. believed the assailant had a weapon and he threatened to kill her if she did not comply as ordered. The assailant told C.F. to "suck my penis." C.F. refused. The attacker told C.F. to "do as I say or I'm going to kill you." C.F. complied. The attacker penetrated C.F., ejaculated, and then threw C.F. to the ground.

As the man fled the scene, C.F. threw a Heineken bottle and broke his car's right, rear side window. C.F. ran to a police mini-station on Stuyvesant Avenue, reported the rape, and explained her attacker retained her cell phone and wallet. In a later statement given to police, C.F. identified the assailant's car as burgundy, with a "for-sale" sign on the left-hand side and a front license plate that said "fear this."

When shown photographs of suspects, C.F. identified Ryan Rose as her attacker. C.F. received medical treatment at the Robert Wood Johnson Medical Center, where she remained for three days. She was transferred to the Helene Fuld Medical Center, because she suffered a nervous breakdown.

On September 28, 2002, K.H. visited her boyfriend at Mercer Medical Center on Bellevue Avenue, Trenton. A little before 10 p.m., K.H. left the hospital and walked toward a nearby bus stop. She waited approximately twenty minutes for a downtown bus to arrive. A burgundy car rode past her "several times." K.H. described the driver as a "heavyset, happy and smiling" African-American male. The man was "looking" at her and then offered her a ride. K.H. recognized the driver as someone she had met and voluntarily entered the car. Although she told the driver where she wanted to go, he "went the opposite way," which alarmed K.H. She engaged him in conversation and learned he was from Levittown, Pennsylvania.

K.H. testified the driver began to "jerk his car like he had a flat tire near Cadwalader Park." On Whittlesey Street, in front of the Joyce Kilmer School, the man stated he had a flat tire and told K.H. to exit the car. The assailant retrieved a blue towel from his trunk, grabbed K.H.'s arm, placed the towel around her neck, and led her to the area where he forced his "penis inside" her, ejaculated and told her to "suck on his chest or rub his chest."

After the rape, the attacker ran to his car and said, "I got that pussy." K.H.'s purse, identification, cell phone, and work uniform were still in the assailant's vehicle. K.H. called the police and was taken to the Helene Fuld Medical Center for a rape exam.

On May 2, 2003, E.J. left work at 11:00 p.m., took a bus to Pennington Avenue, and began walking to her home on Oliver Street. A car stopped and the driver inquired whether she "needed a ride." E.J. voluntarily entered the car. The driver stopped on Stuyvesant Avenue and tried to pull E.J. from the passenger seat. E.J. tried to fight her attacker, but he twisted her arm behind her back. The attacker led E.J. to an area near a baseball field at Cadwalader Park. As she unsuccessfully attempted to fight back, the assailant pushed E.J. to the ground. The attacker pulled down E.J.'s pants, pulled her underwear to the side, and penetrated her, saying "I'm gonna get this pussy."

The assailant ran to his car and fled the scene. E.J.'s bag with her cell phone, identification, and Social Security card were still in his vehicle. E.J. went to her mother's home and called police, who took E.J. to Mercer Medical Center for treatment and a rape exam. Later, E.J. identified the rape scene. Also, she described her assailant and his vehicle. When shown photographs of suspects, E.J. chose Ryan Rose as her attacker.

On May 13, 2003, C.J. and her sister walked to the bus stop at Prospect and Church Streets. Her sister left and C.J. waited for the bus when a "tall, fat, black man" pulled his car up to her and softly mumbled something. C.J. thought the driver needed directions and she leaned closer to his car. The driver pulled C.J. into his car and drove away. He displayed a knife and threatened to kill her. The man drove to Cadwalader Park near the Joyce Kilmer School and parked the car in a dark area. In the car, the attacker pulled down C.J.'s pants and penetrated her vaginally, ejaculating on the back of her legs and her genital area. The assailant "threw" C.J. from the vehicle and drove off.

After the attack, C.J. found a phone booth and called her mother, then called police. C.J. was transported to Mercer Medical Center and underwent a sexual assault exam. During the exam, the hospital staff informed her that she was pregnant.

C.J. identified the location of her assault and provided police with a description of the car and the assailant. She could not identify the attacker from suspect photographs, but worked with a sketch artist to develop a composite drawing.

Initially, the police arrested Ryan Rose, however he was released when his DNA did not match samples obtained from the victims. From the descriptive information provided by C.F., K.H., E.J., and C.J. about the attacker's vehicle, and the admission from K.H.'s assailant that he lived in Levittown, Pennsylvania, Detective Mark Miller of the Trenton Police Department determined that defendant owned a two-door 1991 Burgundy Buick and lived in Levittown. Detective Miller obtained defendant's motor vehicle record, which included his photograph.

On May 16, 2003, the police prepared a photo array, which included defendant's photograph. K.H. identified defendant as her assailant. A warrant for defendant's arrest was obtained. On June 3, 2003, police arrested defendant in Bensalem, Pennsylvania and read him his Miranda rights. When Miller asked defendant why he was being arrested, defendant responded "for raping women in Trenton." Thereafter, defendant blurted, "I ain't rape no women. It was all consensual. They just didn't like that I didn't pay them for what they wanted. It was tit for tat."

Defendant's court ordered DNA sample matched the DNA samples taken from all four victims. During a search of defendant's impounded vehicle, the police found a box cutter, two cell phones and two women's hair extensions. Prior to trial, defendant moved to sever the charges to allow each case to be tried individually. Judge Bielamowciz denied defendant's motion regarding these four victims.

Following the conclusion of the State's case, defendant sought a mistrial asserting error because the trial court (1) denied the motion to sever the cases; (2) inappropriately admitted hearsay statements in the form of fresh complaint; and (3) allowed the State to question C.J. eliciting information that she was pregnant. The motion was denied. The defendant raises these three issues on appeal.

II

Defendant's first challenge addresses the denial of his motion to sever, arguing that "the introduction of all four incidents were so overwhelmingly prejudicial" he was "denied his constitutionally guaranteed right to due process and a fair trial. U.S. Const. amend. XIV; N.J. Const. art. I, 1." Defendant contends that joinder of the multiple offenses "created an unavoidable risk that the jury would use the evidence . . . cumulatively," and convict him based upon a perceived criminal disposition.

Joinder of offenses is governed generally by Rule 3:7-6, which provides:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.

If a court finds joinder will cause a defendant undue prejudice, it may sever two or more offenses charged in the same indictment. R. 3:15-2(b). When considering a motion to sever, the trial court must balance the potential prejudice to a defendant against the interest in maintaining judicial economy. State v. Brown, 170 N.J. 138, 160 (2001).

A trial court is "'accorded ample discretion in determining whether to grant relief from joinder of offenses because of the potential for prejudice . . . reversal is only appropriate where there has been an abuse of discretion.'" State v. Pierro, 355 N.J. Super. 109, 120-21 (App. Div. 2002) (quoting State v. Pitts, 116 N.J. 580, 601 (1989)), certif. denied, 175 N.J. 434 (2003); State v. Marrero, 148 N.J. 469, 483 (1997); State v. Collier, 316 N.J. Super. 181, 193 (App. Div. 1998), aff'd, 162 N.J. 27 (1999). In other words, we disturb the trial judge's decision only if it can be shown that the "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Collier, supra, 316 N.J. Super. at 193.

"Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J 334, 341 (1996) (quoting Pitts, supra, 116 N.J. at 601-02). If this is so, consolidation of the charges will not cause a defendant to "suffer any more prejudice in a joint trial than he would in separate trials." State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983). Thus, if the four incidents were tried separately, and if in one trial the evidence of the other assaults is properly admissible, then the offenses may be joined.

Evidence of other crimes, wrongs or acts is admissible under N.J.R.E. 404(b) if the evidence is used to show proof of "motive, opportunity, intent, preparation, knowledge, plan, identity or absence of mistake." N.J.R.E. 404(b). This rule prohibits the admission of evidence to show that a defendant acted in conformity with the prior crimes or had a predisposition to commit the prior crimes. Other crimes evidence "must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant and must be coupled with a limiting instruction." State v. Cofield, 127 N.J. 328, 334 (1992).

The Court has established a four-part test designed to "avoid the over-use of extrinsic evidence of other crimes or wrongs," Cofield, supra, 127 N.J. at 338, because of its "unique tendency to turn a jury against the defendant," State v. Stevens, 115 N.J. 289, 302 (1989). The State must prove these factors:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 
2. It must be similar in kind and reasonably close in time to the offense charged;

 
3. The evidence of the other crime must be clear and convincing; and

 
4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 
[Cofield, supra, 127 N.J. at 338 (citations omitted).]

Defendant concedes the first and third prongs of Cofield have been met. He limits his challenge to whether the second and fourth prongs have been satisfied. After review of the record, consideration of the arguments advanced by the parties, and the applicable law, we reject defendant's contention that admissibility is defeated by the identified factual dissimilarities between each assault. So too, we find unpersuasive defendant's argument that the probative value of the evidence was outweighed by its prejudice, and we concur with Judge Bielamowicz's determination that the State met its burden to satisfy the Cofield criteria.

Defendant does not challenge the fact that each of these offenses was "reasonably close in time" to one another. Defendant concentrates his arguments on what he labels "important dissimilarities" found between the four attacks, which he maintains defeats admissibility of the evidence. Defendant lists the dissimilarities as follows: a weapon was displayed only in the attack on C.J.; car trouble was feigned only in the attack on K.H.; E.J. was offered payment, while the others were not; two victims were forcibly placed in the assailant's vehicle, while the other two voluntarily accepted offers of rides; and finally, C.J., alone, was assaulted inside the vehicle.

Judge Bielamowicz considered this argument and issued this analysis:

The second issue is whether the evidence is similar in kind and reasonably close in time and while this evidence is not being offered to determine a so-called signature crime, there are some elements of similarity in these cases which are relevant.

In each case the location of the incident is the same. It is in the area of the Joyce Kilmer School. In each incident the defendant offered or forced the victim into a car under circumstances in the case where he was offering them a ride when the victim was waiting at the bus stop. All of them were approached in the same general area of the City of Trenton. In three of the four cases the automobile in which the defendant was using was similar. In three of the cases it was described as a burgundy car, two-door. In one case, that involving C.F., the car was described as a two-door gray Buick. In at least one other statement of K.H., she describes the car as a Buick, but a burgundy Buick. So in three of the cases the car is described as a burgundy, two-door automobile.

The issue that is more significant is whether or not these incidents are reasonably close in time. The incident involving C.F. occurred on April 4th of 2002 . . . . The incident involving K.H., September 28th, 2002. E.J., May 2nd, 2003; and C.J., May 13th, 2003, making the span covering all of these incidents approximately 13 months.

. . . .

Under these circumstances[,] I find that a span of 1[3] months satisfies the timeliness requirement, particularly since there was some intervening, there was one in April of 2002, one in September of 2002 and then in the Spring of 2003 . . . and there were enough similarities in these events to the extent that that element applies to the issue of intent to satisfy the second prong of the [Cofield] test.

Regarding the requisites of the fourth Cofield prong, defendant does not deny sexual interaction with the victims, however, he maintains his acts were consensual or, alternatively that he believed they were consensual, pointing to evidence that all four victims had limited injuries and two victims voluntarily entered defendant's vehicle when offered a ride. Although this strategy places defendant's intent at issue, he suggests the other crimes evidence provides limited probative value to prove intent, which is far outweighed by the potential prejudice inherent in the admission of the multiple crimes.

The trial judge stated:

[A]s I have indicated earlier, I do not find that there is other evidence that is available to the State based on the information that I have that can adequately address the significant issue of intent which is raised by the facts of the four cases I have mentioned.

Relying on these findings, the judge concluded the four prongs of the Cofield test were satisfied, and she denied the motion to sever.

Further, during the course of the trial, the trial judge issued appropriate instructions to the jury advising it on the limited use of the evidence. The evidence was necessary to prove a genuine fact in issue, i.e., defendant's intent in the sexual contact with the victims, which is admissible. State v. G.V., 162 N.J. 252, 257 (2000).

Our review discloses no error in the trial judge's determinations that would result in "a manifest wrong or injury." State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985); Marrero, supra, 148 N.J. at 484. We conclude the decision to admit the testimony, which was relevant and probative, was proper. See N.J.R.E. 404(b); see also State v. DiFrisco, 137 N.J. 434, 497-98 (1994).

Additionally, we reject defendant's assertion that admission was unduly prejudicial. This claim is controverted by the jury's acquittal of first-degree sexual assault and robbery of C.F., the kidnapping of K.H., along with its inability to reach a verdict on the kidnapping of C.F., the second-degree sexual assault of and terroristic threats towards C.F. We conclude the jury carefully listened to the jury charges and Judge Bielamowicz's instructions on the use of the evidence, then properly weighed the evidence to reach its detailed verdict. Accordingly, the trial court did not abuse its discretion in denying defendant's severance motion as defendant did not demonstrate sufficient prejudice to compel severance.

III

Defendant next cites error in the trial judge's admission of third-party hearsay testimony that corroborated the victims' statements of events. Defendant argues the State improperly presented detailed hearsay evidence under the doctrine of "fresh complaint" designed to advance the victims' credibility. The testimony cited as illustrating defendant's argument include: the police officer who reported K.H.'s statements made at the hospital; E.J.'s mother and roommate who recounted her statements after the assault; and the police officer who repeated the substance of his post-assault interviews with C.F. and C.J. Defendant cites further error because the trial judge denied his request for a mistrial on this basis and, thereafter, failed to recite the model jury charge explaining the limited use of fresh complaint evidence.

The "fresh complaint" exception to the hearsay exclusion is grounded in common law and allows third-parties to testify to the statements made by a rape victim regarding an attack. State v. Hill, 121 N.J. 150, 151 (1990). "The rule serves the limited purpose of negating the inference that the alleged victim's failure to have confided in anyone was inconsistent with her later claims of having been sexually assaulted." Id. at 151-52.

Prior to presenting the witness's testimony, the judge conducted a hearing outside the presence of the jury. The State offered its witnesses who would present evidence of statements made by the respective victims after the assaults. Judge Bielamowicz examined the proffered testimony and permitted the admission of the hearsay not as "fresh complaint," but as an excited utterance. N.J.R.E. 803(c)(2). As a result, the State withdrew its fresh complaint request.

"Evidence Rule 803(c)(2) permits the introduction into evidence as a hearsay exception '[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.'" State v. Conigliaro, 356 N.J. Super. 54, 62 (App. Div. 2002) (quoting N.J.R.E. 803(c)(2)); see also State v. Baluch, 341 N.J. Super. 141, 182 (App. Div. 1999) (to be an excited utterance the determinative element is not the amount of time elapsed but whether declarant is still under the stress of the excitement caused by the event), certif. denied, 170 N.J. 89, (2001); State v. Lazarchick, 314 N.J. Super. 500, 524 (App. Div.), certif. denied, 157 N.J. 546 (1998) (assault victim's statement to his mother when he arrived at home approximately one hour after the attack deemed admissible as an excited utterance). If the statements meet the requirements of N.J.R.E. 803(c)(2), they are admissible as substantive evidence. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(2) (2007).

Judge Bielamowicz employed this analysis. She reviewed the testimony of each proposed witness and determined that the three essential elements of an excited utterance were present. N.J.R.E. 803(c)(2). Further, the four victims testified at trial, affording defendant the opportunity to cross-examine each declarant. State v. Branch, 182 N.J. 338, 362 (2005). We find no mistaken exercise of discretion in admitting this evidence.

IV

Defendant presents two final issues. First, defendant asserts a response given in the course of examination, and the content of the prosecutor's objection to a question posed by the defense on cross-examination included inferences of other crimes. The exchanges occurred during the testimony of Captain Ernest Parry of the Trenton Police Department. Defendant argues Parry's statement, which included a reference to a crime other than those presented at trial, and counsel's subsequent colloquy introduced other crimes evidence were "overwhelmingly prejudicial."

Second, during C.J.'s direct examination, she testified that hospital staff told her she was pregnant. The defense sought a mistrial. Given the limited nature of the information, the trial judge denied the defendant's motion and then instructed the jury that C.J.'s pregnancy was irrelevant and not related to the incident. Judge Bielamowicz then struck that portion of the witness's testimony.

We have reviewed defendant's arguments and considered the submissions of both parties in light of the record and applicable law, and we find the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

Initially, the indictment included counts relating to a fifth victim, C.W. The trial court severed the counts relating to these offenses. The State then obtained a superseding indictment charging crimes involving only the four victims, C.F., K.H., E.J. and C.J., which is the subject of this opinion. Also, the Judgment of Conviction incorrectly states count twelve of the indictment charged first-degree robbery.

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

In this opinion, we have eliminated references in the trial court's rulings regarding the fifth victim C.W.

(continued)

(continued)

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A-6005-05T4

May 20, 2008