STATE OF NEW JERSEY v. JOHN W. OATMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5395-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN W. OATMAN, a/k/a

BOBBY OATMAN, a/k/a JOHN

OATMAN,

Defendant-Appellant.

_______________________________________

November 28, 2011

Submitted October 12, 2011 Decided

Before Judges Messano and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-293.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel; Kimberly Donnelly, on the brief).

PER CURIAM

Defendant John W. Oatman was tried before a jury and found guilty on two counts of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(6). The trial court sentenced defendant to concurrent seventeen-year terms of incarceration, each with a period of parole ineligibility, as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction dated July 17, 2009. We affirm.

I.

At the trial of this matter, the State presented evidence which established that, in the early morning hours of November 4, 2006, defendant made a 911 call to the Roselle Police Department (RPD) and reported that there was an unconscious female in an apartment on East Fifth Avenue. Officer Juan Papica (Papica) of the RPD was dispatched to the residence. Defendant met Papica at the door and led him to a bedroom, where he observed a woman, later identified as M.S. According to Papica, M.S. did not have a pulse and was cold to the touch. Paramedics arrived on the scene. They attempted to revive M.S. but she was dead.

Other police officers arrived at M.S.'s residence. Defendant told them that M.S. said that she did not feel well and she began vomiting. He helped her go to the bedroom. M.S. passed out. Defendant said that he placed M.S. on the bed and he attempted to revive her with ice and cold water. According to defendant, M.S. was bleeding from the mouth.

Lieutenant Bradley Downing (Downing) went to the bedroom and asked defendant if he had moved M.S. after she collapsed. He said that he had not. Downing noticed blood stains on the sheets as well as blood stains on the box spring and bedframe. Downing also noticed two bloody towels in the bathroom, blood on the soap and soap dish, and diluted blood on the sink basin, shower curtain, bathtub and bathroom walls.

Defendant was taken to police headquarters, where he was informed of his Miranda rights.1 Defendant signed a waiver of rights form and gave a statement to the police. Defendant said that he was married for thirteen years, but had an extra-marital, sexual relationship with M.S. during the previous five years.

Defendant also stated that at around 8:30 p.m. on November 3, 2006, he arrived at M.S.'s residence in Roselle. Defendant admitted that he and M.S. began to drink beer and M.S. ingested crack cocaine. Defendant said that he did not try to have sex with M.S. because he knew that she did not want to. Sometime between 11:00 p.m. and 1:00 a.m., M.S. said that she did not feel well and she vomited. According to defendant, M.S. began to walk to her bedroom when she suddenly passed out.

Dr. Carlos Fonseca (Fonseca) of the Morris County Medical Examiner's office, performed an autopsy on M.S.'s body on November 6, 2006. Fonseca testified that he observed multiple fresh bruises and swelling on the left side of her head and face. He explained that a fresh bruise is one inflicted within six hours of death. Fonseca said that the bruises on M.S.'s face and head were caused by some type of blunt force trauma.

Fonseca also observed fresh bruises on M.S.'s lower back area, over the right shoulder blade, and on both arms and hands. He said that these bruises also were caused by blunt force trauma. Fonseca observed fresh injuries in the area of M.S.'s perineum, which extends from the anus to the vagina. He said that there were fresh tears on the inner part of M.S.'s vagina, which could have been caused by "rough sex."

In addition, Fonseca observed a large laceration in M.S.'s anus. He said that a muscle in the anal area "was just ripped open." According to Fonseca, this tear was about one and three quarters of an inch deep. It was the type of injury that could cause significant bleeding. Fonseca stated that M.S.'s anal cavity had been penetrated by at least six inches, and the injury was not consistent with digital penetration. He added that toxicology tests revealed that M.S.'s blood alcohol level was 0.126, and she had a cocaine reading of 0.247 percent.

After reviewing the autopsy results, Detective Williams and other officers conducted another interview with defendant. Defendant said that he tried having sex with M.S. but could not do so because she was "completely out of it." Defendant acknowledged that he attempted to penetrate M.S. vaginally as she lay on the floor. Defendant said that he tried to have sex with M.S. after she passed out because he "wanted to."

Defendant additionally stated that he attempted to engage in vaginal intercourse with M.S. for about fifteen minutes, but he could not penetrate her because he could not get an erection. He admitted that he tried to arouse himself by inserting his fingers into M.S.'s vagina and anus but his digital penetrations failed to excite him. He noticed blood when he removed his fingers from M.S.'s anus, and went to the bathroom to wash his hands. He said that she "kept on bleeding."

Defendant unsuccessfully attempted to revive M.S. by wiping her face with ice and cold water. He stated that he did not have sex with M.S. while she was conscious because "she never really wanted to." Defendant said that M.S. was not "blue" when he was attempting to have sex with her. He claimed he could hear her heart beating "a little."

Defendant stated that between 1:40 a.m. and 2:40 a.m., he put his hand on M.S.'s chest and felt her heartbeat getting slower and slower. It got to the point where he did not feel any pulse. Eventually, M.S. turned "blue. He did not seek help immediately because he panicked and thought M.S. might "get up." At 4:57 a.m., defendant called 911.

On this appeal, defendant raises the following issues for our consideration:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON DEFENDANT'S FIFTH AMENDEMENT PRIVILEGE (NOT RAISED BELOW).

POINT II

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

II.

We turn first to defendant's contention that the prosecutor improperly commented in his summation on the fact that defendant did not testify at trial.

"[P]rosecutors are afforded considerable leeway in their closing arguments" and are "expected to make vigorous and forceful closing arguments . . . ." State v. Smith, 167 N.J. 158, 177 (2004). Nevertheless, the prosecutor's obligation is "'not to obtain convictions, but to see that justice is done.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)). However, a new trial will not be ordered unless the prosecutor's improper comments were "'so egregious that [they] deprived the defendant of a fair trial.'" Ibid. (quoting Frost, supra, 158 N.J. at 83).

Because defense counsel did not object to the prosecutor's remarks, we consider defendant's arguments under the plain error standard of review. State v. Daniels, 182 N.J. 80, 95 (2004) (citing State v. Macon, 57 N.J. 325, 333 (1971)). We must determine whether any of the remarks were improper and, if so, whether they were "'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).

Defendant's argument is based on the following. In his summation, defendant's attorney stated that defendant and M.S. had a loving relationship. She said that there was no indication that the relationship was marked by violence. She noted that M.S. and defendant had exchanged greeting cards which indicated that they had a loving relationship.

In response to these statements, the assistant prosecutor observed that one greeting card found in M.S.'s apartment was dated August 18, 2006, about two months before her death. The assistant prosecutor pointed out that the card stated, "Do you think we can make a fresh start, rediscover in each other the magic of the touch, the passion of a kiss[.]" The assistant prosecutor stated:

Why do they need to make a fresh start? If things are so terrific in their relationship, if there's no problems, what's the fresh start that they need to make? And why is it, if he's going there every single week, now all of a sudden when this happens, he hasn't been there in three weeks? Cards talking about needing to make a fresh start, not going to her apartment as much anymore.

Later in his summation, the assistant prosecutor argued that defendant's statements to the 911 operator and the investigators indicated that this incident did not involve consensual sex. The assistant prosecutor stated, "[w]here is consensual sex anywhere in there? M.S. is drunk. M.S. is vomiting. M.S. can't even walk by herself. M.S. passes out, she's unconscious. M.S. is on the floor. Where is consensual sex anywhere in there?" He added that "[n]othing was consensual sex."

The assistant prosecutor also commented on defendant's second statement to the police. Defendant told the police that, while he would rather have sex with a person who was awake, he did not attempt to have sex with M.S. because she "was still awake." The assistant prosecutor stated, "[w]ell, if this is consensual sex[,] don't you ask the person when they're awake? He wants to have sex, she's out of it, he's not trying at that point because he knows she's still awake and has not consented to it."

In addition, the assistant prosecutor commented on the testimony of the pathologist and the physical evidence found at the scene:

How come when you look at the picture of the floor where her body was there's no blood there? Where's her body when he's cleaning that area there? What did he do with her at that point? Because we sure know she couldn't be there when he's cleaning that area, when we know what it was really like. Maybe that's more consistent with how she got those injuries, after he did this, after she's on the ground torn apart, he's grabbing her body, moving her around, pushing her down to the side, cleaning up the crime scene there.

At the end of his summation, the assistant prosecutor commented on M.S.'s injuries and defendant's failure to seek immediate assistance. He stated, "What does common sense tell you about the fact that after he tears her apart he doesn't call for help? Instead[,] he cleans the apartment, cleans up what he did, and waited four hours to call 911."

Defendant argues that the assistant prosecutor improperly commented upon his exercise of his constitutional right not to testify. It is well established that a prosecutor may not "in subtle or obvious fashion draw attention to a defendant's failure to testify." State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Here, the assistant prosecutor responded to the defense assertion that M.S. and defendant had a loving relationship, as shown by the greeting cards found in M.S.'s apartment. He also emphasized that this incident did not involve consensual sex, as indicated by defendant's statements, M.S.'s injuries, and the physical evidence at the apartment. He additionally commented on defendant's failure to seek immediate assistance for M.S.

We do not view these remarks as an impermissible comment on defendant's failure to testify. The assistant prosecutor's use of rhetorical questions was not intended to highlight the fact that defendant did not testify and provide answers to these questions. Rather, the assistant prosecutor's questions were a rhetorical device intended to show that the evidence did not support the arguments advanced by defense counsel in his summation.

Even if the assistant prosecutor's statements could somehow be interpreted as an indirect comment on defendant's failure to testify, the remarks would not justify reversal of defendant's convictions. Defense counsel did not object to the remarks when they were made, thereby indicating that she did not view the remarks as prejudicial. Frost, supra, 158 N.J. at 84. Furthermore, the trial court instructed the jury that defendant had a constitutional right to remain silent and it was not to consider the fact that defendant did not testify "for any purpose, or in any manner, in arriving at" its verdict. We must presume that the jury followed the court's instruction. State v. Burns, 192 N.J. 312, 335 (2007).

III.

Defendant additionally argues that his sentence is manifestly excessive. Again, we disagree.

Here, the trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. As we stated previously, the court sentenced defendant to concurrent terms of seventeen years of incarceration, each with the eighty-five percent period of parole ineligibility as prescribed by NERA.

Defendant argues that the trial court erred by finding aggravating factor nine. He contends that specific deterrence has no place in this matter because this incident "unfortunately ended" with M.S.'s death. Defendant further argues that the court should have found mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause or threaten serious harm); seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no prior criminal record, and has led a law-abiding life for a substantial period of time before the commission of the present offense); and eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct resulted from circumstances unlikely to recur).

In our view, these contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say, the record fully supports the trial court's findings of aggravating factors three and nine. Moreover, the record does not support defendant's contention that the court erred by failing to find mitigating factors two, seven and eight.

We are therefore satisfied that the sentences imposed here are not manifestly excessive or unduly punitive, do not represent an abuse of the court's sentencing discretion, and do 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).