STATE OF NEW JERSEY v. TREVOR A. RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE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.

TREVOR A. RODRIGUEZ, a/k/a

TREVOR RODRIGUES,

Defendant-Appellant.

_____________________________________

July 20, 2016

Submitted April 26, 2016 Decided

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-09-1683.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Trevor A. Rodriguez appeals from his judgment of conviction for the following offenses: two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of fourth-degree possession of a weapon under inappropriate circumstances, N.J.S.A. 2C:39-5(d); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); two counts of third-degree terroristic threats under N.J.S.A. 2C:12-3(a); and one count of third-degree criminal restraint under N.J.S.A. 2C:13-2. He also appeals from the aggregate sentence, imposed after merger, consisting of twenty-two years in prison, sixteen years of which are subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant presents the following points of argument for our consideration

POINT I

TESTIMONY REGARDING BATTERED WOMAN'S SYNDROME SHOULD NOT HAVE BEEN ADMITTED BECAUSE THE STATE FAILED TO ESTABLISH A FACTUAL PREDICATE THAT THE VICTIM WAS A BATTERED WOMAN; THE COURT FAILED TO PROVIDE AN ADEQUATE JURY INSTRUCTION ON THE SYNDROME; AND THE STATE'S EXPERT TAINTED THE TRIAL WHEN SHE TESTIFIED THAT BATTERED WOMEN ARE STATISTICALLY MORE LIKELY TO BE KILLED BY THEIR HUSBANDS IF THEY ATTEMPT TO LEAVE THEM.

A. The Court Erred in Admitting Evidence Regarding Battered Woman's Syndrome Because the State Failed to establish a Factual Underpinning for the Evidence.

B. The Court Committed Reversible Error When It Failed to Immediately Strike the Expert's Testimony That Murder Rates Are Much Higher Where Battered Women Leave Their Husbands.

C. The Jury Charge on Battered-Woman's Syndrome was Flawed Because It Never Asked Jurors to Assess the Critical Question of Whether the Complainant Was a Battered Woman.

POINT II

THE PROSECUTOR COMMITTED MISCONDUCT DURING HER SUMMATION WHEN SHE SUGGESTED THAT MATTERS OUTSIDE THE RECORD DEMONSTRATED DEFENDANT'S GUILT AND WHEN SHE CALLED THE COMPLAINANT COURAGEOUS AND TRUTHFUL. (Not Raised Below)

POINT III

THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE JUDGE FAILED TO PROVIDE ANY REASONS FOR REJECTING PROFFERED MITIGATING FACTORS, AND THE JUDGE APPARENTLY BELIEVED THAT THE "NO FREE CRIMES" LANGUAGE IN YARBOUGH COMPELLED THE IMPOSITION OF CONSECUTIVE SENTENCING.

We affirm the conviction, but remand for reconsideration of the sentence.

I

In light of the legal issues raised, the pertinent evidence can be summarized as follows. Defendant's wife, M.S.,1 testified that on multiple occasions between December 15, 2010 and January 8, 2011, defendant brutally beat her, using a cable wire and the rod from a venetian blind. The beatings left her back covered with welts and scars, and left bruises and welts on her arms, shoulders and legs. The State introduced photographs of the victim's injuries, as well as the cable wire used to inflict them. The victim also saved the shirt she had worn during one of the assaults, and the blood-stained garment was introduced in evidence. Two female police officers testified that they had examined the victim and observed lash marks and bruises on her body. Some of the marks appeared to be healed injuries, while others were newer and raw or scabbed.

The victim also testified that on one occasion, defendant choked her until she lost consciousness and threatened to kill her. On another occasion, while they were riding in a car with the children, defendant threatened that if she reported the abuse to the police, he would kill their children. The victim further testified that defendant isolated her from her friends, by telling her that they were not good enough for her. On one occasion, when he left the house, he required her to call him every hour on the hour to talk to him.

At the time of the assaults, the couple was separated and the victim and the children were living with her parents, who did not like defendant. However, the parents were away from home much of the time, and the victim would surreptitiously permit defendant to stay at her parents' home while they were gone. Most of the abuse occurred at the parents' house.

After the victim filed a complaint with the police, defendant made multiple efforts to convince her to retract her accusations. Those efforts occurred during telephone calls he made to the victim from the county jail where he was incarcerated. Pursuant to standard jail policy, the calls were recorded. The recordings were played for the jury at the trial. Thus, the jury heard defendant repeatedly urging the victim to recant, at one point threatening her that if she did not, the Division of Child Protection and Permanency might take the children.

The victim did send letters to the prosecutor recanting and stating that she did not want to go forward with the case. However, defendant then called the victim again, berated her for not recanting firmly enough, and urged her to say more to exonerate him. During one of those calls, he told the victim to tell the prosecutors that it was "none of their business" how she got the lash marks on her back.

In addition to letting defendant visit her at her parents' house despite his allegedly abusive behavior, delaying in reporting the abuse, and trying to keep another family member from telling her mother about it, the victim behaved in other ways a jury might have found inconsistent with abuse. For example, she accepted hundreds of telephone calls from defendant, which he placed from the jail. She also brought their children to visit him in jail, although he was separated from them by a glass wall during the visits, and she deposited money into his inmate account.

II

Anticipating that the defense would question why the victim put up with the alleged abuse and delayed in reporting it, and why she recanted, and engaged in other behavior seemingly inconsistent with victimization, the State presented an expert witness on the issue of domestic violence and battered woman's syndrome (BWS). The expert, Dr. Lischick, did not interview the victim or testify about the victim's specific situation. Rather, she testified in general about the nature of domestic violence and BWS. She explained, in general, why victims of domestic violence often endure the abuse instead of escaping from the abuser, why victims often delay reporting the abuse, and why recanting the charges may be part of the cycle of abuse and accommodation. The limited purpose of the testimony was clearly explained to the jury by the expert herself, in the judge's final instructions, and in the prosecutor's closing argument.

The judge's charge specifically told the jury that the testimony could not be considered to determine whether the abuse occurred and could not be used "as proving in and of itself that the victim, the alleged battered woman, was or was not truthful." Rather, the judge instructed that "[t]his testimony was admitted for the limited purpose of explaining [that] some of the behavior of the alleged victim was not necessarily inconsistent with battering." Although the charge did not provide a summary of Dr. Lischick's testimony, it otherwise tracked the Model Charge on Battered Woman's Syndrome. See Model Jury Charge (Criminal), "Battered Woman Syndrome Purposes other than Defenses" (2007). There was no objection to the charge.

On this appeal, defendant contends that the trial court erred in permitting Dr. Lischick to testify because she did not examine the victim and did not opine that the victim suffered from BWS. We review the judge's decision to admit expert testimony for abuse of discretion. State v. Berry, 140 N.J. 280, 293 (1995). We find none.

Contrary to defendant's argument, it was not necessary for the expert to have examined the victim in order for the expert's testimony to be admissible. That point was made clear in State v. Townsend, 186 N.J. 473, 495 (2006), where the Court held that the State was entitled to present expert testimony on BWS, to explain why an alleged victim may have made a dying declaration exonerating the defendant.

As the Court noted: "In this case the victim was never evaluated for battered woman's syndrome. We must determine whether it is appropriate to admit expert testimony that a battered woman may exhibit traits, such as lying to protect her abuser, that are associated with the syndrome." Id. at 490. The Court held that the expert testimony was admissible, because "the expert testimony, if believed, was relevant to explain the victim's failure to accuse defendant." Ibid. The Court also concluded "that the record before us amply demonstrates that the characteristics of battered women with or without a diagnosis of battered woman's syndrome are sufficiently reliable to support expert testimony as an aid to the jury." Id. at 493.

As in Townsend, in this case, there was ample evidence from which the jury could have inferred that M.S. was in an abusive relationship and was suffering from BWS. There was graphic evidence that she had been physically abused multiple times. There was testimony that defendant had isolated her from her friends, and otherwise sought to control her. Although the couple was separated, he secretly visited her at her parents' home and abused her there. He threatened to kill her, and the children, if she reported the abuse. The recorded phone calls from the jail illustrated his continuing efforts to control her behavior, as he browbeat and harangued her to recant, and she followed his directions. We find no error in permitting the expert testimony in this case.

Defendant did not object to a brief portion of the expert's testimony in which she adverted to the possibility that a batterer may kill a woman if she leaves him. Thus, the trial court had no opportunity to consider the admissibility of that testimony or to weigh its probative value against the possible prejudice to the defense. "[T]he failure to object suggests that counsel perceived the alleged error to be of no moment, and deprived the trial judge an opportunity to consider the objection and, if appropriate, remedy the instructions." State v. Swint, 328 N.J. Super. 236, 257 (App. Div.), certif. denied, 165 N.J. 492 (2000). However, we need not consider whether such testimony would be relevant absent some evidence that a victim knew of the danger, or whether the testimony might, in a different case, constitute prejudicial error.

Because there was no objection to the testimony, we apply the plain error rule. R. 2:10-2; State v. Bueso, __ N.J. __, __ (2016) (slip op. at 11-13). In this case, we conclude that even if the testimony was admitted in error, it had no clear capacity to produce an unjust result. See R. 2:10-2; State v. McKinney, 223 N.J. 475, 494 (2015). Here, there was evidence that defendant had made actual death threats against both M.S. and their children. Moreover, the State had powerful evidence of the abuse, which was documented in photographs and through police testimony. In an unusual twist, the jury also heard defendant's multiple efforts at witness tampering. They heard the recorded phone calls in which defendant pressed the victim to recant and stated that her injuries were "none of [the prosecution's] business."

We likewise conclude that there was no plain error in the jury charge, to which the defense did not object. See R. 2:10-2; McKinney, supra, 223 N.J. at 494; Townsend, supra, 186 N.J. at 499-500. The charge directly followed the summations of both counsel, which clearly illustrated the issues to which the expert testimony was relevant. The charge would have left the jury in no doubt as to the limited purposes for which it could consider the expert's testimony.2

III

Defendant next contends that the prosecutor made improper comments in her summation. Those arguments are without sufficient merit to warrant discussion, beyond the following comments. R. 2:11-3(e)(2). The prosecutor's statement that the victim's mother had "lots of reasons not to like the defendant" reflected the victim's brief testimony to the same effect, explaining why defendant was not supposed to visit her at her parents' house. In context, it was not an insinuation that defendant had abused M.S. on prior occasions.

We also find no merit in defendant's contention that the prosecutor improperly expressed a personal belief as to the victim's credibility. To the contrary, the prosecutor argued, based on the evidence, that the jury should find the victim credible. The prosecutor reminded the jury of the victim's fearful demeanor on the witness stand, her soft voice, the way she drew her sweater around her as though trying to disappear into it, and her apparently inability to look at defendant except when required to identify him in response to a question. In that context, the prosecutor's comment that the victim was truthful and courageous was appropriately based on the evidence, and was a fair response to defense counsel's extensive attack on the victim's credibility.

IV

Finally, defendant appeals the sentence, contending that the judge erred in imposing consecutive sentences and in failing to consider applicable mitigating factors. In his oral opinion at the sentencing hearing, the judge engaged in an appropriate analysis under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We find no error in the imposition of consecutive sentences.

However, pursuant to State v. Case, 220 N.J. 49 (2014), we are constrained to remand for reconsideration of the sentence, because the trial court did not address defendant's evidence of a mitigating factor in the form of his alleged mental illness. Case, which was decided after the trial court sentenced defendant, requires that the sentencing court at least address each mitigating factor a defendant presents, and explain why the court accepts or rejects the factor and, if accepted, what weight the court gives that factor. Id. at 68-69. Because that was not done here, a remand is required. In remanding, we imply no view as to whether the trial court should find the mental health factor, what weight such a factor should be given if found, or what sentence should be imposed on remand.3

Moreover, as the State concedes, defendant is entitled to an additional two days of jail credit. On remand the court shall award those additional credits in the amended judgment of conviction.

In summary, we affirm defendant's conviction but remand to reconsider the sentence and to award additional jail credits.

Affirmed in part, remanded in part. We do not retain jurisdiction.

1 To protect her privacy, we will refer to defendant's wife as M.S. or the victim.

2 To the extent not specifically addressed, defendant's remaining arguments on this point are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

3 Defendant's arguments concerning additional mitigating factors are without merit. R. 2:11-3(e)(2).