STATE OF NEW JERSEY v. S.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

_____________________________________

August 4, 2014

 

Submitted May 5, 2014 Decided

 

Before Judges Parrillo, Harris, and Sumners.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-12-02040.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

 

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal concerns the admission of testimony regarding a criminal defendant's sexual preferences, the allowance of the jury to view video-recorded statements in the jury room during deliberations, a verbal confrontation between two jurors during deliberations, and the rejection of defendant's request to be sentenced as a second-degree offender after a finding of guilty of a first-degree offense and sentencing him greater than the minimum term.

After a jury trial, defendant, S.S.1, was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). On appeal, defendant raises the following points:

POINT I

DEFENDANT'S STATE AND FEDERAL CONSTITIUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY WERE VIOLATED WHEN, DURING DELIBERATIONS, ONE JUROR VERBALLY AND PHYSICALLY INTIMIDATED ANOTHER JUROR RESULTING IN THE LATTER JUROR'S FAILURE TO FOLLOW THE COURT'S CHARGE. (U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 7)

 

POINT II

THE JURY'S UNENCUMERED ACCESS TO THE VIDEO RECORDED EVIDENCE, INCLUDING DEFENDANT'S TWO VIDEO-TAPED STATEMENTS, WITHIN THE JURY DELIBERATIONS ROOM VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. [NOT RAISED BELOW]

 

POINT III

THE PROBATIVE VALUE OF TESTIMONIAL REFERENCES BY STATE'S WITNESS, [J.R.], TO DEFENDANT'S MARITAL SEXUAL PREFERENCES WAS FAR OUTWEIGHED BY ITS GROSSLY PREJUDICIAL IMPACT AND SHOULD HAVE BEEN STRICKEN PURSUANT TO N.J.R.E. 403. THE SAME TESTIMONY WAS AKIN TO THE ADMISSION OF BAD ACTS AND SHOULD HAVE BEEN STRICKEN PURSUANT TO N.J.R.E. 404B. THE ERROR WAS COMPOUNDED BY THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION. AS A CONSEQUENCE, DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.) [NOT RAISED BELOW]

 

POINT IV

UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN FIRST REFUSING TO SENTENCE DEFENDANT AS A SECOND DEGREE OFFENDER, AND THEN SENTENCING HIM TO A TERM GREATER THAN THE MINIMUM FOR A FIRST DEGREE OFFENSE.

 

For the reasons that follow, we conclude the trial judge should not have allowed defendant's wife to testify concerning his sexual preference of receiving oral sex, as the testimony had no probative value and had the very real capacity to prejudice the defendant given the allegations that he made his minor daughter perform oral sex on him. Therefore, we reverse defendant's conviction and remand for a new trial. In light of this determination, we need not decide whether the jury's unfettered access to the video-recorded statements during deliberations, and the trial judge's decision to deny defendant's motion for a new trial due to the verbal confrontation between two jurors, constitute grounds for reversal. However, we will briefly comment on these issues. Lastly, since defendant shall receive a new trial, his excessive sentence claim is determined to be moot.

I.

We discern the following facts and procedural history from the record on appeal.

Defendant and J.R. (Jane) are the married parents of two daughters, M.S. (Marilyn), the eldest, and L.S. (Lois). In June 2009, at Jane's request, C.O. (Carol) began babysitting Marilyn during the weekday while defendant and Jane were at work.

On August 21, 2009, Carol was changing her infant son's diaper while babysitting Marilyn, who was six years old at the time, when Marilyn pointed at the infant's penis, stating her Daddy has one, and told Carol her father's penis was a certain size, gesturing with her hands, and stated "[h]e makes me suck on it when it's clean." Carol was shocked, but did not want to make Marilyn uncomfortable and changed the conversation. The next day, Carol told Jane about Marilyn's comment. Jane replied she couldn't believe it because defendant was a "good husband."

On August 24, 2009, when Jane dropped off Marilyn to Carol's house, Carol told Jane that she would report the matter to the appropriate authorities if Jane did not do so. Later that same day, the Division of Youth and Family Services2 (Division) contacted Jane to schedule a visit with her family in response to Marilyn's alleged comments. That evening, a Division Special Response Worker visited defendant and Jane's home, and interviewed each family member individually.

On August 25, 2009, defendant, Jane, Marilyn, and Carol gave video-recorded statements to Sergeant Kenneth Kolich and Detective Polly Hans, members of the Hudson County Prosecutor's Special Victims Unit. In her interview, Marilyn denied that her father put his penis in her mouth. She also denied making the alleged comments to Carol, as well as being abused by her dad. Defendant denied the abuse allegations in his initial interview. However, in a second interview, after being told that Marilyn confirmed the allegations, he admitted committing an act of oral penetration on his daughter.

On December 2, 2009, a Hudson County Grand Jury indicted defendant, charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault by committing an act of sexual contact with a victim who is less than thirteen years old and the actor is at least four years older than the victim, N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count four).

On January 5, and 6, 2011, a N.J.R.E. 104 hearing was held regarding the admissibility of defendant's statements to Hans and Kolich. At the end of the hearing, the trial judge ruled defendant's statements were voluntary and admissible at trial.

On February 1, 2011, the trial judge denied defendant's motion to substitute counsel and adjourn the case. The trial judge also granted the State's motion to dismiss count two, second-degree sexual assault, and count four, fourth-degree child abuse, as well as to omit from count three, allegations that defendant touched the victim's mouth and anus with his penis.

On February 3, 2011, another N.J.R.E. 104 hearing was held regarding the admissibility of Marilyn's statement to Carol. Following Carol's testimony, the trial judge concluded, without disagreement from the defendant, that the statement was trustworthy and reliable to warrant admission at trial under N.J.R.E. 803(c)(27).

At trial, Marilyn, about two months shy of eight years old, testified on behalf of the State. She stated that her Dad touched her "private part" when she was four or five years old, but denied that he ever put his "private part" in her mouth, or on any other part of her body.

Defendant's wife, Jane, testified on behalf of the State as well. On direct examination, she was questioned as follows:

[Prosecutor]: Now, when you were living at Arlington Avenue, I am not asking you this to pry, but I got to ask you this, can you describe your sexual relationship, if any, you had with your husband when you had with your husband [sic].

 

[Jane]: It wasn't active. I wouldn t consider it an active sexual relationship.

 

[Prosecutor]: I have to ask you, would you describe the amount of time that you would have sexual - -

 

[Jane]: Monthly. Monthly.

 

[Prosecutor]: Was oral sex a part of your relationship?

 

[Jane]: Yes.

 

[Prosecutor]: And can you describe how often?

 

[Jane]: Not often.

 

[Prosecutor]: And I just want to be clear what I am asking about oral sex. I am talking about fellatio, for lack of a better word. Do you understand what I mean? I am just going to come out and say it. We are all adults here.

 

[Jane]: Yes.

 

[Prosecutor]: His penis in your mouth. Did that happen . . . ?

 

[Jane]: Yes.

 

[Prosecutor]: How often would that happen?

 

[Jane]: Not often.

 

[Prosecutor]: Why not?

 

[Jane]: Because we weren't too active sexually at home, intimate at home.

 

[Prosecutor]: Did you like to perform oral sex on him?

 

[Jane]: Not really.

 

[Prosecutor]: Did he like it when you performed oral sex on him?

 

[Jane]: Yes, I believe.

 

[Prosecutor]: So who liked that particular type of contact more?

 

[Jane]: I think he did more than me.

 

[Prosecutor]: How often - - would there be times when you wouldn't perform it if he asked?

 

[Jane]: I wasn t - - it is not something that I wanted to do every time we were intimate, that is all I can say.

 

[Prosecutor]: How often would he want oral sex?

 

[Jane]: He didn t demand it, but he did like it. It was a preference.

 

There was no objection to this line of questioning by defendant's counsel. The trial judge did not provide any limiting instruction to the jury on how to consider this testimony.

The State also played, and admitted into evidence, the video-recorded statements of defendant, Marliyn, Jane and Carol.

Defendant testified at trial. He denied engaging in any sexual activity with any child, and specifically denied putting his penis in his daughter's mouth. He acknowledged that during his second interview with Hans and Kolich he suffered an emotional breakdown, and stated he committed an act of oral penetration upon Marilyn. However, defendant challenged the voluntariness of his incriminating statement to police, testifying that it was the product of several cumulative factors: (1) fatigue due to the prior evening's interviews by the Division that resulted in loss of sleep, working early the next day, and the overall length of the interrogation; (2) pressure from Hans and Kolich who used forceful language and levied accusations that he was lying; and (3) false assertions by Hans and Kolich that Marilyn had confirmed the allegations as truthful, and that his further denials would hurt his daughter.

When the jury retired to commence deliberations, the trial judge permitted the jury to take the video-recorded statements, along with other exhibits admitted into evidence, into the jury room. There was no objection by the defendant, or the State. In fact, the record indicates that defendant's counsel, the prosecutor, and the trial judge anticipated that the jury would view the video-recorded statements during deliberations.

At the conclusion of the nine-day trial, the jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), (count one); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). The trial judge polled the jury, and each member confirmed the verdict was guilty.

Six days later, juror no. 10, sent a letter to the Hudson County Jury Manager Ebony Johnson alleging that during deliberations juror no. 9 yelled and screamed in her face while towering over her with his finger pointed in her face. The juror wrote that she felt threatened, and thought that many jurors "were swayed because of the uncomfortable situation the crazed juror put us in."

Upon review of the letter, the trial judge decided to interview Johnson and juror no. 10. Both were questioned by the judge in camera in the presence of defense counsel and the prosecutor. Johnson stated she spoke to juror no. 10 after receipt of the letter. Juror no. 10 told her she wasn't sure if she wanted to bring this matter to the judge's attention, but later decided to do so. Juror no. 10 repeated the allegations set forth in her letter, but did acknowledge that juror no. 9 apologized to her following the outburst. She stated she felt she could not review additional evidence because of juror no. 9's attitude, and just wanted to wrap up deliberations, as did the other jurors.

As a result of juror no. 10's comments, the trial judge decided to interview the other deliberating jurors in camera in the presence of counsel. They stated there was no actual harm to juror no. 10, merely a loud verbal disagreement between her and juror no. 9, followed by an apology from juror no. 9. None of the jurors stated that the outburst kept them from following the judge's instructions concerning deliberations.

Subsequently, defendant made a motion for a new trial based upon juror no. 10's allegations. On September 7, 2011, following oral argument, the trial judge issued a decision from the bench stating that although there was a heated argument between jurors nos. 9 and 10, there was no threat to juror no. 10's safety. The judge also reasoned that "the jury deliberation process does get uncomfortable at times, however in this case it did not rise to where the [c]ourt would feel justified in overturning or retrying this case, so therefore the defendant's motion for a new trial is denied."

On November 18, 2011, defendant was sentenced to a fifteen-year prison term with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree sexual assault, and a concurrent five-year prison term, subject to NERA, for second-degree endangering the welfare of a child.

This appeal followed.

II.

Initially, we address defendant's argument in Point III of his appeal that his state and federal constitutional rights to due process of law and a fair trial were denied by the admission of evidence that his sexual preference was to receive oral sex.

The Sixth Amendment of the United States Constitution and Article I, Paragraph 9 of the New Jersey Constitution guarantee every criminal defendant the right to be tried by a fair and impartial jury. State v. Handy, 215 N.J. 334, 350 (2013). A jury verdict must be "'based solely on legal evidence . . . and entirely free from the taint of extraneous considerations and influences.'" Risko v. Thompson Muller Auto. Grp. Inc., 206 N.J. 506, 523 (2011) (quoting Panko v. Flintkote, 7 N.J. 55, 61 (1951)).

Defendant contends that the admission of his wife's testimony that his sexual preference was to receive oral sex had no probative value and was unduly prejudicial given the allegations that he committed sexual assault (oral penetration) on his daughter. He claims he was denied a fair trial because the testimony, without any cautionary instruction to the jury, was capable of causing the jury to determine he committed the crimes charged because he was predisposed to have oral sex performed on him. We agree.

When reviewing a trial judge's ruling on the admissibility of evidence, we must determine whether there has been an abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). However, whereas here, the defendant did not object to his wife's testimony regarding his sexual preference of oral sex, we review the admission of such evidence "for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (citing R. 2:10-2).

"Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted." State v. Chen, 208 N.J. 307, 318 (2011). In accordance with N.J.R.E. 402, only relevant evidence is admissible "unless the evidence is otherwise excluded by the Rules of Evidence." State v. Burr, 195 N.J. 119, 126-27 (2008). Under N.J.R.E. 401, relevancy is determined by whether the evidence has "a tendency to prove or disprove any fact of consequence." Ibid.

Here, Jane's testimony that defendant's preference was to receive oral sex was not relevant and should not have been allowed. The testimony had no "logical connection between the proffered evidence and a fact in issue." State v. Williams, 190 N.J. 114, 123 (2007). Defendant's sexual preference was not an issue in trial. Defendant did not contend that he was not guilty because he lacked an interest or desire to receive oral sex. Defendant denied the incident ever happened. He contended his confession was under duress. In addition, his alleged victim, his daughter, said in her video-recorded statement that she did not tell Carol the incident occurred, and denied it ever occurred. She continued her denials in her trial testimony.

Although defendant did not object to the testimony, allowance of such testimony was plain error because it was capable of producing an unjust result. Pursuant to N.J.R.E. 403, evidence that is relevant may be inadmissible if the risk of prejudice substantially outweighs its probative value. While the State concedes it "did not argue to the jury that [defendant] enjoyed oral sex and therefore he sought to have it with his daughter," it does not propose any rationale why the testimony was relevant to prove or disprove any fact in dispute. Given the absence of a relevant connection between defendant's sexual preference with his wife and the allegations of sexual activity with their child, the testimony had the very real capacity to prejudice the jury in considering defendant's guilt. Moreover, a curative instruction, even without defendant's request, should have been given to the jury. State v. Vallejo, 198 N.J. 122, 134-35 (2009). With no curative instruction, the jury was left to conclude that since he preferred oral sex, and was not receiving it from his wife, he was predisposed to have his daughter perform oral sex on him.

In addition to determining whether Jane's testimony was admissible under N.J.R.E. 401 and 403, we must also analyze whether it should have been excluded pursuant to N.J.R.E. 404(b). While oral sex with a consenting spouse is not a crime or wrong, N.J.R.E. 404(b) provides evidence of other acts is not admissible to prove defendant's disposition to commit the crimes charged, but may be admitted to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."

Here, the trial court did not apply N.J.R.E. 404(b) to Jane's testimony. Thus, we may engage in our own "plenary review to determine its admissibility," Rose, supra, 206 N.J. at 158 (internal quotation marks and citation omitted), and we must analyze it pursuant to the test set forth in State v. Cofield 127 N.J. 328, 338 (1992). Rose, supra, 206 N.J. at 158-60. (internal quotation marks and citation omitted). The following factors must be considered:

1. The evidence of the other crimes3 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 (citation omitted).]

 

For the reasons mentioned above, we conclude that Jane's testimony regarding defendant's sexual preference is inadmissible under N.J.R.E. 404(b) because under factor (1) it had no relevance to a material issue in dispute, and under factor (4) its probative value was outweighed by its prejudice.

We reject the State's argument that it presented such overwhelming evidence of defendant's guilt through his confession, such that Jane's testimony regarding his sexual preference did not have a bearing on the jury's verdict. While the State relied upon defendant's confession, as well as Marilyn's accusation to Carol to meet its burden of proof, the shadow of Jane's testimony cast such prejudice on the jury's deliberation that it was capable of causing the jury to find that there was no reasonable doubt of defendant's guilt. Defendant testified at trial and refuted his confession. After Marilyn allegedly made her report of sexual abuse, she gave a video-recorded statement in which she denied making the allegations to Carol, and denied her father had her perform oral sex on him. Thus, the jury could have had reasonable doubt of defendant's guilt without the taint of the inadmissible evidence of defendant's preference for oral sex.

III.

Since we have determined that defendant is entitled to a new trial, defendant's arguments regarding his sentence are now moot. However, we comment briefly on two other issues because they have been briefed and the matters may arise again on retrial.

The video-recorded statements by the prosecutor's office should not have been given to the jury to view in the jury room during deliberation at trial. From the record, it appears that both the State and the defendant wanted the jury to view the video-recorded statements, whenever and how often it wanted, without the trial judge's observation and supervision. It would appear that the jury did view the video-recorded statements during deliberations, given the request to the court for a "monitor set-up so that we can watch videos."

In Burr, supra, 195 N.J. at 135 (2008), it was held that "any playback of the videotaped [statements] must occur in open court, along with the read back of related testimony that the court shall require." A month after the trial here, the Burr holding was reiterated by our Supreme Court, in State v. Miller, 205 N.J. 109, 123 (2011), when it was decided that video "play-backs, like read-backs, should take place in open court with all parties present, [and] that practice avoids the selective replaying of only a portion of the testimony." However, our Supreme Court has recently determined in State v. A.R., 213 N.J. 542, 558 (2013) that "although we do not approve of the unfettered access to the video-recorded statements of the victim and defendant in the jury room during deliberations, we conclude that the procedure utilized cannot be said to undermine the trial process [to require reversal of the conviction]." The Court further recognized that to assure a fair trial, it is expected that "full and careful consideration and application of the Burr and Miller guidance [should be given] in all situations in which playbacks of video-recorded exhibits or trial proceedings are conducted." A.R., supra, 213 N.J. at 564.

Here, the procedure followed was similar to A.R. where the defendant did not object to the jury viewing the video recordings in the jury room. As noted, defendant expected the jury to view the video-recorded statements of Marilyn and defendant. Since we have concluded that the conviction is reversed on other grounds, at re-trial, the trial court must follow Burr and Miller, and only allow the jury to view playbacks of the video-recorded statements in open court.

Lastly, as to the verbal confrontation against juror no. 9 by juror no. 10, this incident was brought to the trial judge's attention six days after the trial ended. All jurors were interviewed in camera regarding the incident. These interviews revealed that all jurors except the alleged victim, juror no. 10, felt that juror no. 9's conduct was not threatening and did not affect their deliberation.

We recognize that a new trial must be granted "whenever the 'intrusion of irregular influences' inside the jury room has the capacity to affect the outcome of a case," State v. Loftin, 191 N.J. 172, 190 (2007) (quoting Panko v. Flintkote, 7 N.J. 55, 61-62 (1951)), or has "'a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.) (quoting Panko, supra, 7 N.J. at 61, certif. denied, 151 N.J. 466 (1997)). However, a motion for a new trial is governed by the sound discretion of the trial judge, and should only be granted in the interest of justice. State v. Harvey, 151 N.J. 117, 205 (1997); R. 3:20-1. We give deference to the trial judge with respect to assessing witness credibility and a feel of the case. State v. Rockford, 213 N.J. 424, 440 (2013).

Here, we do not find the trial judge abused her discretion in denying the request for a new trial. She conducted in camera interviews of all the jurors to assess what occurred between juror nos. 9 and 10. She evaluated the credibility of the jurors' recollections. She applied the reasonable juror standard set forth in Anderson v. Miller, 346 F.3d 315, 330 (2d. Cir. 2003) to conclude there was no threat to juror no. 10's well-being and the incident did not prevent the jury from fulfilling its duty under the law.4

For the reasons set forth above, we reverse and remand for a new trial.

 

1 We use initials and fictitious names to protect the privacy of the minor children.

2 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 Although Cofield specifically mentions "crimes", the same analysis applies here with respect to oral sex, which is not a crime or wrong, but could be considered an "act" under N.J.R.E. 404(b). It is impermissible to use evidence of an "act" or "other conduct" not criminal in nature to show a defendant's propensity to commit a crime, in adherence to N.J.R.E. 404(b). See State v. Koskovich, 168 N.J. 448, 481-87 (2001).

4 The situation here is unlike the chaos addressed in State v. Dorsainvil, 435 N.J. Super. 449, 482-83 (App. Div. 2014) where it was reported to the trial judge, shortly after being advised the jury was hopelessly deadlocked, that two or more jurors were involved in a physical altercation. The jurors, including the combatants, were required to continue deliberations, resulting in defendant's conviction, which we reversed to prevent an obvious failure of justice. Dorsainvil, supra, 435 N.J. Super. at 484-87.