STATE OF NEW JERSEY v. BRETT D. BARDEN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1641-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRETT D. BARDEN,

Defendant-Appellant.

______________________________

December 2, 2010

 

Submitted September 22, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

05-08-0849.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Matthew Regulski, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Brett Barden was indicted by a Mercer County Grand Jury and charged with five counts of first degree aggravated sexual assault against a child less than thirteen years old, N.J.S.A. 2C:14-2a(1), and two counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. Defendant was tried before a jury and found guilty of all the charges, except for one count of first degree aggravated sexual assault that the court dismissed during the trial.

After merging the convictions of third degree endangering the welfare of a child with the convictions of first degree aggravated sexual assault, the court sentenced defendant to an aggregate term of seventeen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.

We gather the following facts from the record developed in the course of the trial.

I

As with most child sexual abuse cases, the State's principal witness was the alleged victim, "Patty"1, a girl who was nearly fifteen years old at the time of trial. We derive the following account of events from her trial testimony.

At all times relevant to this case, "Patty" and "Cary"2 were best friends; the girls' mothers were coworkers and defendant is Cary's father. Patty had known defendant for nine years and described him as "like a dad . . . [who] was real cool." When Patty was approximately twelve years old, defendant "mentioned that he wanted to teach [her and Cary] about sex." He also said that "there [was] going to be a lot of hands-on activity and whatever was said would be kept between [them.]" There was no one else present when defendant allegedly made these statements to Patty.

On June 8 or 9, 2004, defendant went to Patty's house when she was home from school. After defendant confirmed that Patty was alone, the following occurred:

[W]e went to my room and we were on the bed. And he took his penis out of his pants and he said, see what it looks like, and I said okay. And he told me to take my pants off. I said, I don t want to. And then he took my pants off for me and he gave me oral sex. And then after that, he put a condom on and he gave me vaginal sex.

 

Defendant told Patty that that was her "first lesson"; Patty did not tell anyone about the encounter because defendant told her that "whatever was done was between us three," meaning defendant, Patty, and Cary.3

A similar incident occurred the following month. On that occasion, Patty was in defendant's house in connection with a sleepover with Cary. Sometime during the middle of the night, defendant beckoned Patty from Cary's bedroom to meet him downstairs where he had sexual intercourse with her. Patty again did not tell anyone about this incident because "he said it was kept between [them]."

Patty testified that over the next several months these interactions happened "a lot"; "[s]ometimes it was in [defendant's] room, sometimes it was upstairs on the couch. Sometimes he would give me oral sex and sometimes he wouldn't. And sometimes he would use a condom and sometimes he wouldn't." The last incident took place on January 14, 2005, when defendant physically forced Patty to perform fellatio on him. As Patty described it, "[he] asked me to give him oral sex and I said I didn t want to. And then he grabbed the back of my head and put his penis in my mouth."

In August 2004, Patty told her sixteen-year-old cousin "Tammy"4 about the abuse. She asked her not to disclose the information, however, because "[Patty] didn't want to get in trouble." Tammy testified that Patty told her that she and defendant "had sex or he raped her or, you know." Tammy decided to honor Patty's request not to tell anyone about the abuse because "no one ever . . . told [her] anything like [that] before."

Patty finally disclosed the abuse to her mother on March 8, 2005. According to the mother, after finding a note in Patty's room "talking about boys," she asked her daughter if she had ever had sex, willingly or unwillingly. This prompted Patty to tell her mother about her sexual encounters with defendant. The mother reported the abuse to the Lawrence Township Police the following day. Lawrence Township police officers took statements from Patty and her cousin Tammy. No physical evidence was collected because of the time delay between the last sexual incident and the time it was reported. Lawrence Township officers also contacted the Trenton Police Department because some of the sexual encounters occurred in that jurisdiction. Trenton officers also interviewed Patty, who identified a photograph of defendant as the person who had sexually abused her. The State also called an expert in the field of child sexual abuse who testified about Child Sexual Abuse Accommodation Syndrome.5

Defendant called as witnesses Gladys Santiago, the mother of one of his children, and Maria Barden, his current wife and Cary's mother. Santiago testified that defendant was living with her during a brief period of reconciliation from December 2004 through January 2005. According to Santiago, defendant was residing in her house in Camden the weekend of January 14, 2005, the date of the last alleged sexual encounter with Patty. On cross-examination Santiago conceded, however, that "even when the defendant would tell [her] where he was or who he was with, [she] wouldn t really necessarily know for certain." Maria Barden made a similar concession with respect to defendant's whereabouts.

II

Against these facts, defendant now appeals raising the following arguments.

POINT I

 

SINCE THE PROSECUTION EXERCISED PEREMPTORY CHALLENGES ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS, THE TRIAL COURT ERRED BY FAILING TO DISCHARGE THE ENTIRE VENIRE PURSUANT TO TWO SEPARATE MOTIONS MADE BY DEFENSE COUNSEL AND TO BEGIN THE JURY SELECTION PROCESS ANEW.

 

POINT II

 

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY IMPROPERLY BOLSTERING THE CREDIBILITY OF THE VICTIM. (Not Raised Below)

 

POINT III

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF A STATEMENT GRATUITOUSLY VOLUNTEERED BY A PROSPECTIVE JUROR DURING JURY SELECTION DESCRIBING THE ALLEGED VICTIM AS A "GREAT KID."

 

POINT IV

 

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

 

We reject these arguments and affirm. We will start our analysis by reviewing the State's exercise of its peremptory challenges.

In the course of jury selection, the prosecutor used three of her first seven peremptory challenges to excuse three African-American jurors. This left the panel as constituted at the time without any African-American jurors. Defendant argued that the jury thus "[did] not reflect the makeup of Mercer County."

In response, the trial judge directed the prosecutor to place on the record her reasons for challenging these jurors. According to the prosecutor, the first juror challenged had a sister who was incarcerated and a brother-in-law and a cousin who have been "in trouble" with the law. This juror was also single and did not have any children. In the prosecutor's view, this juror's lack of direct experience with children made him less capable of evaluating the testimony of the complaining witness. The prosecutor was also concerned with this juror's demeanor. At the times other jurors "were intently watching," she observed him looking around and appearing seemingly distracted. As to the second excused juror, the prosecutor was again concerned about her not having children, as well as her uncle's incarceration. The prosecutor also saw this juror looking at her with a "glare." As to the third juror, the prosecutor doubted her impartiality towards the State because the juror's son had been accused of a similar crime; the juror believed in her son's innocence despite his decision to plead guilty.

Later on in the jury selection process the prosecutor supplemented the record by noting that only three of the seven challenges exercised by the State were used to excuse African- Americans. She further emphasized that the complaining witness was also African-American. With respect to the first African-American juror she excused, the prosecutor indicated she observed his hands over his eyes and that "a couple times he was closing his eyes, looking down, seem[ed] disinterested." This observation was corroborated by the sheriff's officers in the courtroom who "had even gone over to try and get [the juror's] attention [because t]here was concern that he might be sleeping or resting even." The trial judge accepted the prosecutor's race-neutral explanations and denied defense counsel's motion for a mistrial.

Defendant renewed his motion for a mistrial when the prosecutor excused a fourth African-American juror. The prosecutor justified her challenge based on the juror's demeanor. The prosecutor noted that the juror had "a lot of direct eye contact with the defendant."

The trial judge also noted that when she excused the jurors for recess, the juror "pushed his way forward and was the second person to leave the courtroom rather than the eighth person, which I thought was unusual because usually jurors wait for instructions and are willing to proceed in an orderly fashion." This attracted the judge's attention, who described the juror's conduct as "somewhat aggressive[]." Based on this record, the judge was "satisfied that this juror was excused for reasons that are specific to this case and not because of his membership to any particular group."

The trial judge denied defendant's second mistrial motion at the conclusion of the selection of the jury. Analytically, the judge found that defendant had met his burden of establishing a prima facie case that the State had used its peremptory challenges "on constitutionally-impermissible grounds." State v. Gilmore, 103 N.J. 508, 535 (1986). This shifted the burden to the State to "satisfy the court that it exercised such peremptories on grounds that are reasonably relevant to the particular case on trial." Id. at 538 (citations omitted).

With respect to the third juror excused by the State, the trial judge found the reasons proffered by the State were not race related. The juror believed in her son's innocence in a similar crime despite his guilty plea. The court noted that the first excused juror would have been foreperson of the jury. Under such circumstances, the court found that the State was justified in its concern over his waning attention during the proceedings. The judge also found acceptable the prosecutor's concerns over his lack of direct experience with children and his having family members charged with crimes.

The judge also found proper the prosecutor's explanation for excusing the second juror. The judge noted that this juror also lacked direct experience with children and had a family member incarcerated. There was thus a rational, race-neutral justification for the prosecutor to doubt the juror's ability to remain impartial. Ultimately, the judge found the prosecutor had acted in good faith in the exercise of the State's peremptory challenges. We agree.

Our State constitution provides that "the right to trial by an impartial jury drawn from [a] representative cross-section of the community is of 'exceptional significance' and 'goes to the very essence of a fair trial.'" Gilmore, supra, 103 N.J. at 543 (quoting State v. Williams, 93 N.J 39, 60 (1983)). In recognition of this right, our Supreme Court has acknowledged that no person may be disqualified from serving on a jury "on account of race, color, creed, national origin, ancestry, marital status or sex." Id. at 526. Absent a case-specific bias, no juror may also be disqualified from jury service based exclusively on his or her religious beliefs or the lack thereof. State v. Fuller, 182 N.J. 174, 201-02 (2004).

Nevertheless, while a prosecutor may not impermissibly exercise his "peremptory challenges to remove potential jurors on the basis of presumed 'group bias' or mere 'group affiliation,'" a prosecutor may still permissibly exclude "members of a cognizable group for valid, articulated, trial-related reasons." Gilmore, supra, 103 N.J. at 531.

Gilmore sets forth the process a trial court must employ "when a defendant alleges that a prosecutor is improperly using peremptory challenges." Id. at 533. At the outset, "the ultimate burden of persuading the trial court that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds remains at all times with the defendant." Id. at 534. There exists a rebuttable presumption that prosecutors exercise their peremptory challenges on permissible grounds. Id. at 535. However, a defendant may rebut this presumption by first timely objecting to the challenge and then establishing a prima facie showing that the challenge was exercised on an impermissible basis. Ibid. To make this prima facie showing, a defendant must "produc[e] evidence sufficient to draw an inference that discrimination has occurred." State v. Osorio, 199 N.J. 486, 502 (2009) (quoting Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129, 139 (2005)). A defendant's burden to show purposeful discrimination "is not terribly onerous," and the trial court must evaluate the relevant circumstances surrounding the challenges to determine if that burden is met. Gilmore, supra, 103 N.J. at 537, 536.

When the trial court finds that the defendant established a prima facie case of discrimination, the burden then shifts to the prosecution to rebut the "presumption of unconstitutional action" that is triggered. Id. at 537. Thus, the prosecution must present the trial court with justifiable concerns of bias that are particular to the case at hand. Ibid. To be successful, the prosecution "must articulate clear and reasonably specific explanations of its legitimate reasons for exercising each of the peremptory challenges." Ibid. (quotation marks omitted) (citations omitted). These reasons "need not rise to the level justifying challenges for cause." Id. at 538.

The trial court must then decide if the articulated justifications for the juror's removal were "genuine and reasonable grounds for believing that potential jurors might have situation-specific biases that would make excusing them reasonable and desirable . . . or, on the other hand, sham excuses belatedly contrived to avoid admitting acts of group discrimination." Id. at 537-38 (quotation marks omitted) (citations omitted). Further, the Gilmore court has advised that

there are any number of bases on which a party may believe, not unreasonably, that a prospective juror may have some slight bias that would not support a challenge for cause but that would make excusing him or her desirable. Such reasons, if they appear to be genuine, should be accepted by the court, which will bear the responsibility of assessing the genuineness of the prosecutor's response and of being alert to reasons that are pretextual.

 

[Id. at 538 (quoting McCray v. Abrams, 750 F.2d 1113, 1132 (2d. Cir. 1984)).]

 

Finally, the trial judge must evaluate the defendant's prima facie showing against the prosecution's proffered justifications "to determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Id. at 539. "An appellate court ordinarily will extend substantial deference to a trial court's determination of whether the defendant has shown that the prosecutor had a discriminatory intent in the exercise of a peremptory challenge." State v. Osorio, 402 N.J. Super. 93, 105 (App. Div. 2008), aff d, 199 N.J. 486 (2009). This substantial deference is appropriate because "only the trial judge is in a position to make 'first-hand observations' of the demeanor of both the attorney who exercises the peremptory challenge and the juror who is excused." Ibid.

Here, the prosecutor stated her case-specific, race-neutral reasons for excusing the jurors involved before the trial judge had the opportunity to determine whether defendant had established a prima facie case as required under Gilmore. Thereafter, the court evaluated the state's proffer and concluded that defendant had not established "a prima facie case" of unconstitutional use of peremptory challenges by the State. Although this approach did not strictly adhere to the procedural paradigm established by the Court in Gilmore, the end result is nevertheless sustainable because the record supports the court's findings that the State did not exercise its peremptory challenges to exclude jurors on the basis of race.

III

We next consider defendant's argument concerning the prosecutor's summation to the jury.

Defendant argues that, in her summation, the prosecutor improperly attempted to bolster the credibility of the complaining witness. Specifically, the prosecutor emphasized that Patty's trial testimony was consistent with the account of events she initially gave to police investigators at the Lawrence Township police station. Defendant asserts that the prosecutor's remarks were improper because, although the jury knew that Patty gave two separate statements to the police, the contents of those statements were not revealed to the jury.

According to defendant, the prosecutor's assertion that the statements were consistent with her trial testimony thus impermissibly referred to matters that were not in evidence and accomplished what N.J.R.E. 607 is intended to prevent: using a prior consistent statement to bolster the testimony of a witness whose credibility has not been challenged as the product of a recent fabrication. Furthermore, although defense counsel did not object to these remarks, any objection would have been futile because it is highly unlikely that the jury would have ignored such remarks even if the court would have given appropriate curative instructions.

The State argues the prosecutor's attempts to convince the jury of the credibility of the State's main witness did not rise to the level of improper bolstering. While acknowledging that the victim's out-of-court statements would have been inadmissible substantive evidence, the State maintains that the complaining witness' statements were referenced repeatedly throughout the trial. Indeed, the first reference to the statements was made by defense counsel during his opening statements.

The State also asserts that defense counsel's failure to object and to request a limiting instruction is indicative that any alleged impropriety was inconsequential. The State also emphasizes that defendant's failure to object also requires that we evaluate his argument under the plain error standard. We should thus reject this argument because the alleged error is insufficient to impeach the reliability of the jury verdict.

Our standard of review is well-settled. Although prosecutors are "expected to make vigorous and forceful closing arguments to juries" and are "afforded considerable leeway in closing arguments," they are nevertheless confined to making comments that "are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). A prosecutor is bound to "confine his or her comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting State v. Smith, 167 N.J. 158, 178 (2001)). Prosecutors are precluded from using their remarks during summation to "vouch for the credibility of a witness." Bradshaw, supra, 195 N.J. at 510.

To determine whether a prosecutor's remarks during summation exceeded the bounds of proper comment, thus warranting a reversal, we must ask whether the conduct "was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

[N]ot every departure from the facts and reasonable inferences necessarily calls for a reversal, and on the question whether the improper comment shall have that effect, the making by trial counsel of a timely and proper objection and the action of the trial judge in connection therewith are ordinarily controlling considerations.

 

[State v. Johnson, 31 N.J. 489, 511 (1960), cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961) (quotation marks omitted) (citation omitted).]

Accordingly, "an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83. When evaluated under this standard, it is generally understood that the remarks will not be viewed as prejudicial if counsel failed to object to them. Ibid. This is because "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. The failure to object "deprives the court of an opportunity to take curative action." Ibid. Ultimately, "[s]o long as the prosecutor's comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments 'will afford no ground for reversal.'" Bradshaw, supra, 195 N.J. at 510 (quoting Johnson, supra, 31 N.J. at 510).

Here, the prosecutor focused her summation on Patty's credibility, specifically that she did not have any motive to falsely accuse defendant and that her testimony was credible. In making this point, the prosecutor mentioned that Patty made three separate statements to the police. The prosecutor then stated the following: "Consider that overall [Patty] was consistent, because you heard that there were statements, lengthy statements that she did at the police station. And don t you think if there were wild inconsistencies, that that would have been pointed out to you?"

The prosecutor then remarked on Patty's demeanor while testifying, the credibility and potential biases of the other witnesses, and defense counsel's emphasis in his opening statement on potentially false accusations. At the conclusion of the State's summation, the trial judge dismissed the jury and asked counsel if they had any matters that needed to be addressed before taking a recess. Defense counsel did not object to any statements made by the prosecutor during her summation at that time, nor did he object prior to the jury charge the next morning.

Given this record, we discern no basis to reverse. Although the prosecutor should not have referred to statements given by the complaining witness that were not admitted as evidence at trial, these comments can be fairly characterized as fleeting. Defense counsel's failure to object at the time, despite having at least two separate opportunities for doing so, is also indicative that he did not consider the remarks as particularly prejudicial. When considered as a whole, there is no basis to conclude that the prosecutor's summation had the capacity of depriving defendant of his right to a fair trial.

 

IV

Defendant's arguments as stated in Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The statement made by a prospective juror referring to the complaining witness as a "great kid" was both fleeting and inconsequential. The juror was excused for cause by the trial judge forthwith, and the judge immediately asked the remaining jurors who may have heard the remark whether this affected their capacity to consider the evidence fairly and impartially. None of the jurors who served and deliberated in the trial showed any indication of bias as a result of this event. State v. Loftin, 191 N.J. 172, 193-94 (2007).

Finally, the sentence imposed by the court was based upon competent, reasonable, and credible evidence. State v. Roth, 95 N.J. 334, 363 (1984). The trial court thoughtfully and carefully analyzed each of the relevant aggravating and mitigating factors and crafted a sentence that served the paramount goal of the New Jersey Code of Criminal Justice: uniformity in sentencing. State v. Cassady, 198 N.J. 165, 179-80 (2009). The sentence imposed, although severe, does not shock our collective judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

Affirmed.

1 The name "Patty" is fictitious.

2 The name "Cary" is fictitious.

3 Despite this statement, there is no evidence that defendant also sexually molested his daughter.

4 "Tammy" is a fictitious name.

5 Our Supreme Court has limited the admissibility of expert opinion concerning Child Sexual Abuse Accommodation Syndrome in child sexual abuse trials "to describe traits found in victims of such abuse to aid jurors in evaluating specific defenses." State v. J.Q., 130 N.J. 554, 556 (1993). Defendant does not challenge the admissibility of the testimony presented in this case.