STATE OF NEW JERSEY v. DAVID VASQUEZ

NOT FOR PUBLICATION WITHOUT THE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.

DAVID VASQUEZ,

Defendant-Appellant.

_________________________________

September 9, 2014

 

Submitted March 5, 2014 Decided

 

Before Judges Grall and Accurso.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0182.

Nancy C. Ferro, attorney for appellant.

 

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

 

PER CURIAM

A jury convicted defendant David Vasquez of attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2c(1); two counts of sexual assault, N.J.S.A. 2C:14-2c(1); and terroristic threats, N.J.S.A. 2C:12-3b, for the 2002 rape of E.C.1 After merger, the judge sentenced defendant to concurrent ten-year terms of imprisonment on the sexual assault counts, each subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive five-year term for the conviction for terroristic threats, to be served prior to the terms for the sexual assaults. Defendant appeals his conviction and sentence. We affirm defendant's conviction but vacate the sentence and remand to the trial court for merger of defendant's conviction for terroristic threats.

In the early morning hours of Friday, May 24, 2002, E.C., then twenty-one years old, was attacked and repeatedly raped by a stranger who accosted her on a sidewalk as she walked home from a friend's apartment in Kearney. The assailant grabbed her from behind as she tried to flee and said "I'm going to kill you, bitch." E.C. could not recall exactly how her assailant moved her from the sidewalk to behind some bushes; whether he dragged her or shoved her or whether she went "willingly." She testified that after he threw her to the ground, she told him to "do what you're going to do. Look, I just want to live."

After she was on the ground, the man partially removed her clothes and after an initial unsuccessful attempt, succeeded in penetrating her vaginally. E.C. testified that she was also made to get onto her hands and knees while the assailant "forced [his penis] into [her] anus repeatedly and very, just roughly, awfully, in a way that . . . [was] beyond abuse." She told the jury that she never got a good look at the man because even when they were face to face, she turned her head to the side so that he would have no reason to kill her when he had finished.

After the assailant departed, E.C. pulled on her clothes, with the exception of a boot she could not find, and returned to her friend's apartment. Her friend, who claimed to have been too ill to hear her earlier knock, let her in. E.C. told her friend she had just been raped. Because the man remained too ill to assist her, he suggested she call her brother to take her to the police station.

E.C.'s brother accompanied her to the police station and then to the hospital where she was examined. The doctor noted abrasions on both of her knees, blood in her vaginal vault, and several tears in her anus. The doctor completed a rape kit, which was sent for forensic testing. Police recovered E.C.'s boot and other personal belongings at the crime scene. E.C., could not identify her assailant, but reported he spoke with a Brazilian accent. The police investigation turned up no suspects.

Five years later, in the summer of 2007, defendant was arrested on a sexual assault charge in Essex County, and police obtained a sample of his DNA. Defendant's DNA matched the profile developed from the semen collected from E.C.'s underwear, and he was charged with the 2002 sexual assault.

Defendant, who grew up in the Dominican Republic, testified at trial. The first question put to him by his counsel was to explain how his DNA came to be on E.C.'s underwear. Defendant claimed that he met E.C. on a Saturday night at a nightclub in Newark and they later engaged in consensual sex in his car. While he could not remember the date of their encounter, he was certain it was in 2002. The only other witness defendant presented was E.C.'s friend, who confirmed her report of rape, but testified that "she didn't seem what I would expect a rape victim to be." He also claimed that E.C. did not appear disheveled to him, although acknowledging that she was only wearing one shoe when she appeared at his door.

Defense counsel argued in summation that defendant's DNA in E.C.'s underwear was as a result of their consensual encounter. "What did the experts say? It is possible that if you have sperm on underwear and wash it, it is still going to be there. That is the only conceivable way this sperm is on her underwear." The State argued that given defendant's claimed encounter with E.C. was on a Saturday night and the crime occurred in the early hours of a Friday, "there is absolutely no basis to conclude that [the DNA on] this underwear was put there almost a week earlier."

During deliberations, the jury sent a note to the judge stating, "Judge, juror number three went to the crime scene. Should he be with us?" The judge discussed the matter with counsel and obtained their agreement to interview the juror on the record to determine whether he had gone to the scene against the judge's instructions or merely driven by it in the course of his usual activities. Juror three advised the judge that he did not go to view the crime scene but had merely driven by it on his way to the pharmacy. He denied discussing the scene with the other jurors.

After hearing those responses, defense counsel urged the judge to strike the juror. Because juror three had not admitted to any misconduct, the judge declined to do so. He instead determined to interview each of the other jurors on the record in the presence of counsel about their discussions with juror three. Counsel agreed. Those interviews all followed the same pattern. The judge called in each juror, one by one, explained the purpose of the interview, asked what juror three had said, and then asked whether the juror could deliberate and decide the case without reference to juror three's comments and based only on the evidence adduced at trial. The judge explained to several jurors that the scene could look different from its appearance seven years before and that its present condition was thus irrelevant to their deliberations.

The other jurors all presented an entirely consistent account of juror three's statements. Each revealed that juror three stated that he had been to the scene more than once, looked at the bushes and the nearby school building, and opined that a person could not drag someone behind the bushes. As one juror put it

Well, when we went around the room we each said, you know, how we felt. Right off the bat he said that, you know, the defendant was not guilty and that he had gone by the scene of the crime several times, to which a lot of us said, you weren't supposed to do that.

 

. . . .

 

Well, yesterday we went to Subway and he tagged along with us and he was trying to give us his opinion and we kept telling him that we weren't going to discuss it.

 

Each juror advised the judge that the juror could disregard juror three's remarks and decide the case without reference to his statements. Each vowed to be fair and all stated unequivocally that they were not influenced by juror three's comments.

Thereafter, the judge dismissed juror three, substituted one of the alternates, and provided the following instructions to the newly constituted jury:

Okay, ladies and gentlemen, as you know, juror number three was excused from jury service. He was excused because he did not follow the Court's instructions.

 

As of this moment, you are a new jury and you must start your deliberations over again. The parties have the right to a verdict reached by twelve jurors who have had . . . the full opportunity to deliberate from start to finish.

 

The alternate juror has no knowledge of any earlier deliberations. Consequently, the new deliberating jury must start over at the very beginning of deliberations. Each member of the original deliberating jury must set aside in this regard whatever may have occurred and anything which may have been said in the jury room following my instructions to you.

 

You must give no weight to any opinion expressed by juror number three during deliberations before that juror was excused. Together as a new jury, you must consider all the evidence presented at trial as part of your full and complete deliberations until you reach your verdict.

 

The jury convicted defendant on all counts of the indictment. The judge denied defendant's motion for a new trial based on juror taint and defendant's allegation that his wife had seen a juror in the area of the courthouse in which defendants are held during their trials and his assertion that the juror must therefore have seen him in chains. Defense counsel acknowledged she had nothing beyond defendant's hearsay statement to prove that such an encounter had occurred.

Defendant raises the following issues on appeal:

POINT ONE:

 

THE TRIAL COURT ERRED IN DENYING

THE MOTION FOR NEW TRIAL ON THE

ISSUES OF JURY TAINT.

 

POINT TWO:

 

THE COURT ERRED AT SENTENCING ON

TERRORISTIC THREATS BY IMPOSING A

CONSECUTIVE SENTENCE OR BY REFUSING

TO MERGE TERRORISTIC THREATS WITH

THE SEXUAL ASSAULT CHARGES.

 

POINT THREE:

 

THE COURT ERRED BY IMPOSING AN

EXCESSIVE SENTENCE.

 

POINT FOUR:

 

THE COURT ERRED BY IMPOSING A

SENTENCE WHICH DOES NOT ALLOW

DEFENDANT TO BENEFIT FROM GAP TIME.

 

POINT FIVE:

 

THE VERDICT WAS AGAINST THE WEIGHT

OF THE EVIDENCE.

Defendant first argues that he was denied his right to a fair trial because the jury was tainted either by the excused juror's statements about his investigation of the scene or by a juror allegedly entering the holding area of the Hudson County Courthouse.

A defendant's constitutionally protected right to trial by an impartial jury "includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001) (citing State v. Bey, 112 N.J. 45, 75 (1988)). When it appears as if "a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." Id. at 557-58.

The court is first required to immediately "interrogate the juror, in the presence of counsel, to determine if there is a taint." Id. at 558. If the court finds a taint, the inquiry must expand "to determine whether any other jurors have been tainted thereby." Ibid. After ascertaining the facts, the court must determine whether the trial can proceed after excusing the tainted juror or whether a mistrial is required. Ibid. We review that decision for abuse of discretion. Ibid. The test is not whether the irregularity actually influenced the result, but rather whether it had the capacity to do so. Ibid.

After reviewing the very thorough record created by the trial court in this case, we conclude that the judge did not abuse his discretion in dismissing the tainted juror and allowing deliberations to begin anew with an alternate. Not every instance of a jury's exposure to outside influence will require a new trial. Id. at 559. Where the jury is exposed to information not in evidence, the question is whether the information "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).

Here, the information provided to the jury consisted of one juror's opinion about whether the assault could have occurred as the victim claimed based on the juror's view of the crime scene seven years after the event. The remaining jurors all readily expressed their understanding that the scene could well be different in light of the passage of time, an observation judges routinely make to juries in explaining why it is important that they not visit the scene of the crime or car accident at issue in the trial.2 The gravity of the extraneous information the jury received was not critical in relation to the case, and the judge was satisfied from the demeanor and credibility of the remaining jurors that they could consider the case fairly without regard to juror three's observations. Because we agree with the trial court that the information the jury received had no capacity to influence its deliberations in a manner inconsistent with the proofs and the judge's charge, we find no abuse of discretion.3

Turning to consider defendant's sentence, we conclude that the trial court's lack of qualitative analysis regarding its decision not to merge defendant's conviction for terroristic threats with the sexual assaults and to instead order him to serve a consecutive term on that count requires a remand for resentencing. See State v. Fuentes, 217 N.J.57, 70 (2014).

The trial judge explained the sentence as follows:

[Defendant] was born [in] 1978 in the Dominican Republic, married, did not finish high school, came here when he was seventeen years old, last lived in Harrison with his wife and child. He's in State prison now on another rape charge out of Essex County or . . . I should say a sexual assault charge.

 

. . . .

He has five total arrests. This is his second indictable offense. He also had a previous disorderly persons offense for prostitution. He must have been a prostitute.

 

Aggravating factors one, three, six and nine apply. The nature and circumstances of the offense, the role he played[;] it was especially heinous, cruel and depraved. He grabbed the woman, he pulled her into the bushes and again, he raped her[,] not once but twice he penetrated her. And he also threatened he would kill her.

 

Aggravating factor three applies. The risk he'll commit another offense. He's done it twice. And he stands here in this court and despite overwhelming evidence, assumes and professes his innocence, to me [that] is a mockery of the whole system.[4]

 

His prior criminal record, the need to deter him and others from violating the law, so one, three, six, [and] nine apply. I don't even find anything close to a mitigating factor applying.

 

There's no mitigating factors whatsoever. The aggravating factors clearly preponderate. The No Early Release Act applies as well.

 

And therefore, your sentence is as follows. Count eight [attempted sexual assault] will merge with count nine [sexual assault]. On count nine, second degree aggravated sexual assault in violation of [N.J.S.A.] 2C:14-2c(1), you are committed to the custody of the Commissioner of the Department of Corrections for a term of ten years. You shall serve eighty-five percent of said ten years before becoming eligible for parole. Obviously eighty-five percent of ten years is eight years and six months.

 

. . . .

Count ten, also a second degree aggravated sexual assault. Again, you're committed to the custody of the Commissioner of the Department of Corrections for a term of ten years.

 

One more thing, I'm sorry, going back to count nine, pursuant to [NERA], you must serve three years of parole supervision upon release.

 

Back to count ten, again you're committed to the custody of the Commissioner of the Department of Corrections for a term of ten years. . . . You shall serve eighty-five percent of said ten years before becoming eligible for parole pursuant to NERA. There will be a three year period of parole supervision upon release. That shall run consecutive to Essex County Indictment 066-1754, as well, but concurrent to count nine.

 

It was one act in my opinion, even though it was two issues of penetration.

 

. . . .

 

With respect to count eleven, third degree terroristic threats in violation of [N.J.S.A.] 2C:12-3b[,] [y]ou are committed to the custody of the Commissioner of the Department of Corrections for a term of five years. This is a separate offense. The terroristic threat, threatening to kill her is a separate offense from the sexual [assault] . . . in and of itself. And because it is a separate offense, in my opinion it can be served consecutive to counts nine and ten.

 

Additionally, this will be consecutive to Essex County Indictment 066-1754. Additionally, [defendant] shall serve his Essex County indictment. Then next he will serve the five year flat term next on the terroristic threats. Then next he will serve the counts on nine and ten.

Although the court's explanation of the aggravating and mitigating factors is not extensive, this process need not "be a discourse," State v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part, State v. Pierce, 188 N.J. 155 (2006), and the sentencing transcript allows us to "'readily deduce' the judge's reasoning" in that regard. State v. Miller, 205 N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)). Not so with the decision to reject merger or a concurrent term and instead impose a consecutive sentence for the terroristic threats.

The court's only stated reason for imposing a consecutive sentence is that "[t]he terroristic threat, threatening to kill her is a separate offense from the sexual [assault] . . . in and of itself. And because it is a separate offense, in my opinion it can be served consecutive to [the terms for the sexual assaults]." The court failed to consider the Yarbough5 factors, which is required when imposing a consecutive sentence. Miller, supra, 205 N.J. at 128-31.

The court also failed to engage in a comprehensive analysis of whether it was required to merge defendant's conviction for terroristic threats with the sexual assaults. See State v. Cole, 120 N.J. 321, 327 (1990) (observing that merger issues implicate a defendant's constitutional rights). "If an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). As the Court explained in Davis, a court should merge two sentences for sentencing when

the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; . . . one act was an integral part of a larger scheme or episode; the intent of the accused [implies the two acts were part of one criminal act], [or] the consequences of the criminal standard transgressed [warrant merger].

 

[Id. at 81.]

 

Here, a review of the record convinces us that defendant's threat to kill the victim was an integral part of the sexual assaults, and thus merger was required. See State v. Lyles, 291 N.J. Super. 517, 530 (App. Div. 1996) ("Defendant may, at the resentencing, argue for the merger of the terroristic threat conviction into the rape conviction on the ground that the threats constituted part of the coercion element of the rape offense"). E.C. testified that she could not recall how defendant moved her from the sidewalk to the bushes where the rape occurred; whether he dragged or shoved her or whether she went "willingly," that is, as a result of his death threat. She testified that she did not struggle and that she told defendant to "do what you're going to do. Look, I just want to live." Further, she explained that she avoided looking at defendant throughout her ordeal so that he would have no reason to kill her when he had finished.

Although it appears clear on this record that defendant applied physical force against the victim in the course of committing the sexual assaults, it is also inescapable that defendant's threat supplied the "coercion" which is part of the definition of sexual assault under N.J.S.A. 2C:14-2c(1) ("commits an act of sexual penetration with another person . . . us[ing] force or coercion, but the victim does not sustain severe personal injury"). Cf. State v. Tate, 216 N.J. 300, 312 (2013) (discussing merger in context of a defendant's unlawful possession of a weapon to commit the substantive offense). No effort was made to instruct the jury to consider force or coercion separately and the verdict sheet did not require the jury to do so.

We find no evidence in the record to suggest that defendant's death threat to E.C. was in any manner independent of the sexual assaults. Instead, the evidence is overwhelming that defendant's threat to E.C. was for the sole purpose of facilitating his sexual assault. Indeed, in E.C.'s initial statement to the police, she reported that defendant told her to "Shut up, or I'll kill you" when she screamed after he grabbed from behind. As the facts cannot support separate convictions for sexual assault and terroristic threats, merger was required. See State v. Diaz, 144 N.J. 628, 638-39 (1996).

Defendant's claim that he was denied gap-time credits is without merit in light of State v. Hernandez, 208 N.J. 24, 40-41 (2011) (holding that a sentence which includes a mandatory period of parole disqualification under NERA is not subject to attack because it prevents a defendant from benefitting from gap time). His claim that the verdict was against the weight of the evidence iswithout sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm defendant's conviction but vacate his sentence and remand for merger of his conviction for terroristic threats.

Affirmed in part; reversed in part and remanded.

 

 

 

1 The jury acquitted defendant of kidnapping, N.J.S.A. 2C:13-1b; attempted aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:5-1 and 2C:14-2a(3); and two counts of aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2a(3).

2 We reject defendant's claim that in his questioning of the jurors, the judge implied any view about the appearance of the crime scene.

3 We likewise reject defendant's surmise, based on his wife's claim to have seen a juror in the court's secure holding area, that one of the jurors saw him in chains. We agree with the trial court that defendant presented no proof of such.

4 A statement such as this which impugns a defendant's choice to defend the charges against him is clearly improper. See State v. Poteet, 61 N.J. 493, 495-96 (1972); State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998) ("due process would undoubtedly be denied if further punishment were inflicted on defendant for choosing to exercise his constitutional right to defend"), certif. denied, 157 N.J. 647 (1999).

5 State v. Yarbough, 100 N.J. 627, 630, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).