STATE OF NEW JERSEY v. CARLOS MENDOZA

 

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2575-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS MENDOZA,

Defendant-Appellant.

_______________________________________

March 2, 2011

 

Submitted January 19, 2011 Decided

 

Before Judges Parrillo, Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0460.

 

Harkavy, Goldman, Goldman, Caprio & Gerstein, P.A., attorneys for appellant (Robert Carter Pierce, on the brief).

 

TheodoreJ. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, and Kimberly Donnelly, on the brief).

PER CURIAM

Defendant Carlos Mendoza was tried before a jury and found guilty of second-degree sexual assault upon N.P., N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He appeals from the conviction and the sentences imposed. For the reasons that follow, we affirm.

I.

Defendant was charged with first-degree aggravated sexual assault upon N.P., N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault upon N.P., N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.P., N.J.S.A. 2C:24-4(a) (count three); second-degree sexual assault upon S.P., N.J.S.A. 2C:14-2(b) (count four); and second-degree endangering the welfare of a child, S.P., N.J.S.A. 2C:24-4(a) (count five).

At the trial of this matter, the State presented evidence that defendant and M.S. had been in a relationship for about fourteen years. N.P. and S.P. are M.S.'s granddaughters. L.P. is the children's father and C.P. is their mother. M.S. is C.P.'s mother. At the time of the alleged incidents, N.P. and S.P. were five- and eight-years old, respectively. On December 10, 2005, N.P. and S.P. were left in defendant's care at the girls' home in Union, New Jersey.

N.P. subsequently reported to L.P. that, while she and defendant were watching television, defendant touched her vagina. C.P. told her mother and then reported the incident to the police. The matter was investigated by the Union County Prosecutor's Office. N.P. gave a videotaped statement to Detective Mary McKinlay (McKinlay). Thereafter, McKinlay obtained a warrant for defendant's arrest.

Defendant was arrested at his residence in Union City, and transported to the prosecutor's office, where he waived his rights under Miranda1 and gave McKinlay a videotaped statement. Defendant said that N.P. had complained of redness and irritation of her vagina, and he assisted her in applying baby powder to the affected area. Defendant stated that he might have rubbed his hand against N.P.'s vagina while he was helping her apply the powder.

Prior to defendant's arrest, S.P. told her mother that defendant had touched her vaginal area "a lot of times." C.P. informed L.P. and then reported the matter to the police. The case was referred to the Monmouth County Prosecutor's Office, because the incidents were said to have taken place in Keansburg, New Jersey. S.P. was brought to the prosecutor's office, and she gave a videotaped statement to Detective Patrick J. O'Connell (O'Connell).

N.P. and S.P. testified at trial, along with C.P., L.P., M.S., McKinlay, O'Connell, and Dr. Linda Jane Shaw, a physician who had examined the girls. N.P.'s and S.P.'s videotaped statements were played for the jury. Defendant testified on his own behalf. Defendant stated that N.P. had complained of a rash and he assisted her in applying powder to the affected area, but he did not touch her vagina. He also denied ever touching N.P. and S.P. or having any sexual contact with them.

The jury found defendant not guilty on counts one, four and five, but guilty of count two, second-degree sexual assault upon N.P., and count three, second-degree endangering the welfare of a child, N.P. The court sentenced defendant to concurrent six-year terms of incarceration, each with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In addition, the court ordered defendant to register pursuant to Megan's Law, N.J.S.A. 2C:7-2; sentenced defendant to community supervision for life; ordered defendant to serve a three-year term of parole supervision after completion of his sentence of incarceration; and required defendant to provide a DNA sample. Appropriate fines and penalties also were imposed.

The court entered a judgment of conviction dated December 12, 2008. This appeal followed. Defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED BY REPLAYING THE VIDEOTAPED STATEMENT OF N.P. WITHOUT FIRST APPLYING THE PRECAUTIONARY PROCEDURES SET FORTH IN STATE v. MICHAELS AND STATE v. BURR. (Partially raised below).

 

POINT II

THE TRIAL COURT ERRED BY REPLAYING THE VIDEOTAPED STATEMENT OF MR. MENDOZA WITHOUT FIRST APPLYING THE PRECAUTIONARY PROCEDURES SET FORTH IN STATE v. MICHAELS AND STATE v. BURR. (Not raised below).

 

POINT III

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE THE VIDEOTAPED STATEMENT OF N.P. INTO EVIDENCE AS A "TENDER YEARS" EXCEPTION TO THE HEARSAY RULE PURSUANT TO N.J.R.E. 803(c)(27) AS THE STATEMENT WAS NOT SUFFICIENTLY TRUSTWORTHY.

 

POINT IV

THE TRIAL COURT ERRED BY ADMITTING THE VIDEOTAPED STATEMENT OF N.P. INTO EVIDENCE AS IT WAS CUMULATIVE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 AND ITS INTRODUCTION PURSUANT TO N.J.R.E. 803(c)(27) VIOLATED THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT. (Partially raised below).

 

POINT V

THE TRIAL COURT ERRED BY REDACTING MR. MENDOZA'S STATEMENT TO EXCLUDE HIS RESPONSE TO THE DETECTIVE'S QUESTION OF "HOW DO YOU THINK YOU'D DO IF YOU TOOK A POLYGRAPH EXAM?".

 

POINT VI

THE TRIAL COURT'S CUMULATIVE ERRORS REQUIRES THE REVERSAL OF MR. MENDOZA'S CONVICTION.

 

POINT VII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

 

II.

Defendant argues that the trial court erred by replaying N.P.'s videotaped statement for the jury during its deliberations. We disagree.

The record shows that, during its deliberations, the jury asked to see N.P.'s videotaped statement to McKinlay. The trial court asked the jury whether it wanted to see the whole tape or only a portion. A juror stated, "the whole tape." The entire tape was played for the jury in the courtroom. Defense counsel did not object to the playing of the tape.

Defendant contends that the court erred by playing N.P.'s entire statement without ordering a readback of relevant portions of her trial testimony. In support of this argument, defendant relies on State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), and State v. Burr, 195 N.J. 119 (2008).

In Michaels, the defendant was charged with multiple counts of sexual offenses upon twenty children. Michaels, supra, 264 N.J. Super. at 585. Nineteen of the victims testified at trial. Id. at 590. Because of their young ages, the victims testified by means of closed-circuit television. Ibid. Over the defendant's objection, the trial judge granted a request by the jury and replayed the victims' videotaped trial testimony. Id. at 642.

We stated that, under certain circumstances, it is permissible to replay a videotape of trial testimony in its entirety for the jury during its deliberations, if the jury requests that the testimony be replayed. Id. at 644. We explained, however, that

videotaped testimony provides more than conventional, transcribed testimony. The witness' actual image, available in a video replay, presents much more information than does a transcript reading. In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury.

 

[Ibid.]

 

We held that, although the State could obtain "an advantage" from the replaying of videotaped trial testimony, the replaying of such testimony is not prejudicial per se, and the trial judge should not be "divested of discretion to accede to a jury's request for a replay." Ibid. We stated, however, that videotaped trial testimony should not be replayed routinely. Ibid.

We said that the trial judge should first seek to satisfy a jury's request for a playback of videotaped testimony by offering a reading of the transcript of the testimony. Ibid. The trial judge also should ask the jury whether there is something in particular the jury is seeking on the videotape that might not be available to them from a reading of the transcript. Id. at 644-45. We stated, "[i]f it is determined that the jury's request for a replay of the tape appears reasonably necessary to its deliberations, then the trial judge should exercise discretion to balance that need against any possible prejudice in each particular case." Id. at 645.

In Burr, the defendant was convicted of second-degree sexual assault and third-degree endangering the welfare of a child. Burr, supra, 195 N.J. at 122. At the trial, the State introduced a videotape of the victim's pretrial interview by persons in the prosecutor's office. Id. at 131. During its deliberations, the jury asked to review the videotape of the interview. Id. at 131-32. The trial judge granted the request, and the tape was replayed in the courtroom. Id. at 132.

The Court in Burr noted that in Michaels, we had concluded that the replaying in open court of videotaped trial testimony was not prejudicial per se and was a matter committed to the sound discretion of the trial judge. Id. at 133. The Court stated that Michaels was distinguishable because, in that case, the videotape of the trial testimony had not been admitted as a trial exhibit. Ibid.

The Court nevertheless observed that "allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations." Id. at 134. The Court said that a jury could "unfairly emphasize" the victim's videotaped statements over other trial testimony, including the victim's own cross-examination. Ibid.

The Court held that, "in the future, if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence," the trial judge should first determine whether it would be satisfied with a read back of the statement. Ibid. (emphasis added). The Court stated that, if the jury insists that the videotape be replayed, the trial judge "must take into consideration fairness to the defendant." Id. at 135.

The Court also said that the trial judge should "determine whether the jury must also hear a readback of any direct and cross-examination testimony that the [judge] concludes is necessary to provide the proper context for the video playback." Ibid. The Court additionally stated that if the videotape had been admitted pursuant to the "tender years" exception to the hearsay requirement, it is "imperative that the victim's related cross-examination at trial also be read back to the jury." Id. at 135 n.9.

We are satisfied that in this case the trial court did not err by permitting the replay of N.P.'s entire statement without ordering a readback of relevant portions of her trial testimony. The Court in Burr stated that before a trial judge permits a replay of a videotaped pretrial interview for the jury, the judge should first ask the jury whether a readback of the statement would suffice and consider whether a readback of related trial testimony is warranted to put the pretrial statement in context.

However, Burr was decided after the trial in this matter. The Court in Burr stated that the procedures prescribed therein would only be applied "in the future," thereby indicating that the opinion should have prospective application. Burr, supra, 195 N.J. at 134; see also State v. R.T., 411 N.J. Super. 35, 53 (App. Div. 2009).2

Furthermore, in this case, the jury indicated in response to the court's inquiry that it wanted to see the entire statement. Moreover, defense counsel did not object to the playing of the entire tape, nor did counsel request a readback of any portion of N.P.'s direct or cross-examination. We are satisfied that defendant was not prejudiced by the replay of N.P.'s pretrial statement. In our view, the playing of the entire tape was not erroneous, let alone an error clearly capable of producing an unjust result. R. 2:10-2.

III.

Next, defendant argues that the trial court erred by permitting a replay of his videotaped pretrial statement to McKinlay during the jury's deliberations. Again, we disagree.

Here, the jury requested that it be provided with a copy of the transcript of defendant's statement. The court informed the jury that the transcript had not been introduced as an exhibit and the jury could only see the videotape. The court asked the jury whether it wanted to view the entire tape, and the jury informed the court that it wanted to see "everything" after the Miranda warnings. The tape was replayed for the jury, with certain portions redacted.

Defendant argues that the trial court erred because it replayed the tape without ordering a readback of relevant portions of his trial testmony. Defendant relies upon Michaels and Burr as support for this argument. However, as we have previously explained, Burr was decided after the trial in this matter and the procedures spelled out in Burr apply prospectively.

Furthermore, in this case, the trial court did not have the option of reading a transcript of defendant's statements because the transcript was not admitted as a trial exhibit. Moreover, the court asked the jury whether it wanted to view the entire tape and the jury said it wanted to see "everything" after the Miranda warnings. Defense counsel did not object to the playing of the tape, nor did counsel request that the court provide the jury with a readback of relevant portions of defendant's trial testimony.

Under the circumstances, we are convinced that the court did not abuse its discretion by acceding to the jury's request for a playback of defendant's statement. We are convinced that defendant was not prejudiced by the replay of his pretrial statement. In our view, the court's decision to allow the playback of defendant's statement without a readback of relevant portions of defendant's trial testimony was not erroneous, let alone an error clearly capable of producing an unjust result. R. 2:10-2.

IV.

Defendant also argues that the trial court erred by admitting N.P.'s statement into evidence pursuant to N.J.R.E. 803(c)(27). The rule provides that a statement of "[a] child under the age of [twelve], relating to sexual misconduct committed with or against that child" may be admitted in a civil, juvenile or criminal case if:

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to [N.J.R.E. 104(a)], that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceedings by virtue of the requirements of [N.J.R.E. 601].

 

[Ibid.]

 

In reviewing a trial court's decision to admit a statement pursuant to N.J.R.E. 803(c)(27), we must consider: whether the trial court considered the relevant factors under the rule; whether the record includes sufficient credible evidence to support the court's findings on trustworthiness; and whether the court abused its discretion by failing to exclude repetitive corroborative testimony, the probative value of which is substantially outweighed by the risk of undue prejudice. State v. Smith, 158 N.J. 376, 389-91 (1999).

We are convinced that the trial court did not abuse its discretion by admitting N.P.'s statement in to evidence. Here, the State provided defendant with timely notice that it intended to introduce N.P.'s statement at trial. The court conducted an N.J.R.E. 104(a) hearing, at which McKinlay testified and was cross-examined. The court also reviewed the videotape of the interview. The trial court determined that N.P.'s statement was trustworthy.

On appeal, defendant argues that McKinlay had a preconceived opinion that he committed an inappropriate sex act. Defendant contends that McKinlay should have asked follow-up questions when N.P.'s statement was consistent with his assertion that he was merely assisting N.P. in applying powder to her rash. He contends that McKinlay ignored information that did not support her preconceived opinion, and resorted to leading questions to "guide" N.P. back to that opinion.

We disagree with these contentions. Here, the trial court found that N.P. was a "very bright five year old" who was "well spoken." McKinlay did not repeatedly ask N.P. the same questions. N.P.'s statements during the interview were spontaneous. In addition, during the interview, N.P. used expressions that were appropriate for a young child. There is no evidence that McKinlay coached N.P., nor is there any indication that N.P. had a motive to fabricate her allegations. Moreover, N.P.'s statement remained consistent throughout.

We are satisfied that there is sufficient credible evidence in the record to support the trial court's finding that N.P.'s statement was trustworthy. We conclude that the court did not abuse its discretion by admitting the statement pursuant to N.J.R.E. 803(c)(27).

Defendant additionally argues that N.P.'s statement should have been excluded pursuant to N.J.R.E. 403 as cumulative. Again, we disagree.

Although N.P. testified at trial, her statement was probative because it established that shortly after the alleged incident, she reported the unlawful sexual contact to her parents, who then informed the police. Because the probative value of the evidence substantially outweighed any prejudice to defendant arising from its admission, the court did not abuse its discretion by admitting the statement.

Defendant further contends that the admission of N.P.'s statement violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. This contention fails because N.P. testified at trial and was available for cross-examination. Therefore, the admission of N.P.'s pretrial statement into evidence did not violate defendant's right to confrontation. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004); State v. Nyhammer, 197 N.J. 383, 411-14, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

V.

Defendant additionally argues that the trial court erred by redacting a portion of his statement to McKinlay. During her questioning of defendant, McKinlay asked, "How do you think you'd do if you took a polygraph exam?" Defendant replied:

How do you think I'd do? I think I'd do pretty good. I mean I'm nervous as all hell right now. But I think I'd do pretty uh pretty good[.] I may not do excellent but I mean I'm like . . . I have shivers right now . . . [due to] all the things that I'm thinking about.

 

Defendant contends that the court erred by refusing to allow the jury to hear this evidence.

Polygraph evidence is generally inadmissible at trial because "lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception." State v. Domicz, 188 N.J. 285, 312 (2006) (quoting State v. McDavitt, 62 N.J. 36, 44 (1972)). We recognize that McDavitt allows the results of a polygraph exam to be admitted in a criminal case if the State and the defendant stipulate to their admission. McDavitt, supra, 62 N.J. at 43. However, in this case, defendant never took a polygraph test.

Defendant maintains that the court misapplied McDavitt. He says McDavitt does not apply because he was merely "truthfully answering" the question posed to him. According to defendant, his answer indicated that he was "being completely honest" with the detective and "not hiding any information."

However, we see no meaningful distinction between the results of a polygraph exam and an individual's prediction of how he would fare if such a test were administered. If the results of the polygraph are not probative as to whether a person is telling the truth, the same must be said regarding a statement of a person's belief as to how he would "do" if he took a polygraph test. We therefore conclude that the trial court did not abuse its discretion by excluding defendant's comment.

VI.

Defendant contends that the cumulative nature of the trial court's alleged errors require reversal of his conviction. He contends that, even if each specific error he complains of is deemed to be harmless, when those alleged errors are viewed cumulatively, they deprived him of a fair trial.

A new trial must be granted if legal errors are committed that are "of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair[.]" State v. Orrechio, 16 N.J. 125, 129 (1954). However, when the trial errors are "incidental" and not unduly prejudicial, a new trial is not required because such a result "would be grossly unjust to the State and its people[.]" Ibid. We are satisfied that defendant has not shown that the trial court made any error in this case that would singly, or in combination with any other error or errors, warrant reversal of his conviction.

VII.

In addition, defendant argues that his sentence is excessive.

The trial court found aggravating factors two, the gravity and seriousness of the harm inflicted upon the victim, N.J.S.A. 2C:44-1(a)(2); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court also found mitigating factors seven, defendant has no history of prior criminal activity, N.J.S.A. 2C:44-1(b)(7); eight, defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); and nine, defendant's character and attitude make it unlikely that he will commit another offense, N.J.S.A. 2C:44-1(b)(9). The court determined that the mitigating factors outweighed the aggravating factors, and imposed concurrent six-year terms of incarceration for each offense, subject to NERA.

Defendant argues that the court erred by finding aggravating factor two. He contends that the harm to the victim was considered by the Legislature when it made sexual assault a second-degree crime if the victim is less than thirteen years of age. We disagree. In our view, the court properly considered harm to the victim as an aggravating factor due to her extreme youth and close relationship to defendant, which made the victim particularly vulnerable to defendant's illegal conduct. State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988).

Defendant further argues that the trial court should have found mitigating factor ten, defendant is likely to respond favorably to probationary treatment, N.J.S.A. 2C:44-1(b)(10). However, at sentencing, defendant did not seek a finding of this mitigating factor. Moreover, having been convicted of two second-degree offenses, there was a presumption of incarceration under N.J.S.A. 2C:44-1(d), and defendant failed to establish a basis to overcome that presumption.

Defendant further argues that the court should have found mitigating factor eleven, defendant's incarceration would result in an excessive hardship to defendant or his dependents, N.J.S.A. 2C:44-1(b)(11). Defendant stated that he was responsible for taking care of his elderly and infirm mother but indicated that, if he were incarcerated, his ex-wife would assume this responsibility. Under these circumstances, the court properly refused to find mitigating factor eleven.

We are therefore satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

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

2 R.T. is pending in the Supreme Court, an appeal having been taken pursuant to Rule 2:2-1(a)(2).