STATE OF NEW JERSEY v. M.L.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NOT FOR PUBLICATION WITHOUT THE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.

M.L.S.,

Defendant-Appellant.

__________________________________

September 21, 2016

 

Submitted January 6, 2016 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-03-00501.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase,Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On March 21, 2013, a jury found defendant M.L.S. guilty of two counts of first degree aggravated sexual assault against R.M. and S.M., two children under the age of thirteen, N.J.S.A. 2C:14-2a(1); one count of first degree aggravated sexual assault against S.M., when defendant knew or should have known S.M. was physically helpless, N.J.S.A. 2C:14-2a(5)(b); one count of first degree aggravated sexual assault against his biological daughter T.S., who was at least thirteen but less than sixteen years old at the time of the assault, N.J.S.A. 2C:14-2a(2)(a); two counts of second degree sexual assault against R.M. and S.M., by engaging in sexual contact with these two children, who were less than thirteen years old at the time, for the purpose of sexually arousing or gratifying himself, or to humiliate or degrade the children, N.J.S.A. 2C:14-2b; and second degree endangering the welfare of his biological daughter T.S., a child under the age of eighteen, by knowingly engaging in sexual conduct which would impair or debauch her morals, N.J.S.A. 2C:24-4a.

On July 12, 2013, the court sentenced defendant to serve concurrent terms of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the convictions for the first degree aggravated assault convictions. The convictions for second degree sexual assault merged with the first degree offenses. The court imposed a consecutive term of ten years, subject to the mandatory NERA restrictions, on the conviction for second degree endangering the welfare of a child. Defendant was thus sentenced to an aggregate term of thirty years, subject to NERA.

In this appeal, the attorney assigned to represent defendant by the Office of the Public Defender challenges the trial court's decision to deny his motion to suppress a statement defendant gave to law enforcement agents. Appellate counsel also argues the sentence imposed by the court was excessive. Defendant filed his own brief in which he also attacks the admissibility of his statement and the length of the sentence. Defendant further alleges that misconduct by the prosecutor and other "egregious trial errors" deprived him of his right to a fair trial.

We affirm. The State's case against defendant was primarily based on the testimony of the three witnesses who accused defendant of sexually assaulting them when they were children. By finding defendant guilty, the jury found the testimony of these witnesses credible. We discern no legal grounds to interfere with the jury s verdict. We are also satisfied the legal arguments raised by defendant are without merit.

I

Beginning in 1994 and continuing intermittently over the course of fourteen years until 2008, defendant sexually assaulted S.M., a child born in 1985. S.M. was the granddaughter of the stepfather of defendant's paramour, Mary.1 Defendant also sexually abused Mary's younger brother, R.M., a child born in 1990. T.S. is defendant's and Mary's biological daughter. She was born in 1994.

S.M. was twenty-eight years old when she testified in this trial. In 1994, S.M. began living with her grandfather. In addition to the grandfather, the household consisted of the grandfather's paramour Wendy, her two children, R.M. and Mary, and defendant, who was Mary's boyfriend. Although not related by blood, S.M. considered Mary and R.M. to be "like sister and brother to [her]." At the time, R.M. was approximately three years old and Mary was eighteen years old. S.M. testified that Mary was pregnant "with my little cousin [T.S.]."

The prosecutor asked S.M. to describe "the first interaction that sticks in your mind between the defendant and [R.M.]." S.M. answered

The first interaction that sticks out in my mind is waking up hearing [R.M.] yelling, and going in the room, into his room and seeing [defendant] on top of him.

Q. When you say he was on top of him, what do you exactly remember?

A. [R.M.] was laying down and [defendant] had a blanket over him and he was on top of [R.M.] and [R.M.] was laying on his stomach.

. . . .

You could tell that when I walked in[,] he kind of like jumped up and he was on his knees.2

. . . .

Q. And when [defendant] told you to get out of the room or you told him, excuse me, to get out of the room, what happened then?

A. He just began telling me to get out. And I was telling him, no, get away from him. And he got up and choke me and threw me down, told me to be quiet. And he was just, you know, he was quiet about everything he was doing. He was very aggressive, very scary. And he told us that he would kill us if we said anything about what, what I saw him doing and what he was doing to [R.M.].

S.M. stated defendant also sexually abused her.3 S.M. testified that she slept on a pull-out couch in the living room. She remembered waking up one night with "someone on top of me." She remembered that she slept on her stomach and was unable to move because of the weight of defendant's body on top of her.

I realized that his hands were on both my hands and his legs were on both my legs and I couldn't move because he was a lot bigger than me. And I tried to yell because he was on top of me. He was raping me.

Q. Do you remember, how did you know he was, in your words, raping you? What did you feel?

A. I could feel him inside of me.

Q. When you say you could feel him inside of you, I have to ask you just, I know this is tough but I just have to ask you specifically what you remember feeling.

A. It was his penis inside my vagina.

Q. And what did it feel - - how did you feel?

A. It was going in and out.

Q. Did it hurt?

A. Yeah.

Q. And when you say he was on top of you, who was on top of you?

A. [defendant]

Q. And what happened next?

A. I tried to yell. And he took my head and banged it on the edge of the couch[,] and I didn't wake up until the next morning.

Q. You don't remember anything after that?

A. (Whereupon witness shakes head)

S.M. remembered waking up with blood on herself. Her grandfather's paramour, Wendy, told her she was menstruating and told her to take a shower. After she showered, Wendy showed her how to use a sanitary napkin. S.M. was nine years old at the time. S.M. testified that from this point forward, defendant sexually assaulted her multiple times. She tried to stay awake as a means of preventing the assaults and avoided sleeping in a nightgown that her grandfather had bought for her "because it was like a dress." As S.M. explained, the nightgown made it easier for defendant to sexually assault her. S.M. was uncertain how many times or on what dates defendant sexually assaulted her. Her memories were more visceral than chronological in this respect.

R.M. also testified about being sexually molested by defendant. He described how defendant would tell him to come to the bed so they could watch television together as a ruse to carry out the assault.

Like, after that I stopped playing and got on the bed and I was watching television. And then he like, took my pajamas off.

Q. And then what happened?

A. After he took my pajamas pants off, he laid me on my stomach and he, like, he, put his penis in my butt.

Q. I just have to ask you this. When you say put his penis in your butt, do you remember what that felt like?

A. During the time, it was just, I felt something warm on me. And then, like, when it was happening I didn't really feel that much. And then after it was, like, it was like pain.

. . . .

Q. Do you remember any other time that anything like that happened to you?

A. Yes. That happened, I'd say, a couple of times. I don't know exactly how many times. But another time he - - like, I was playing and no one home and he asked me to come watch television again. He took my pants off again. And this is, like, he tried to make me perform oral on him.

. . . .

He took my pants off. And he did what he usually did. And then after he asked to do oral to him.

Q. When you said he did what he normally did, was that he placed his penis, that's what you are talking about, right?

A. Yes.

Q. And you say he tried to get you to perform oral on him. What did he do?

A. He asked me to put his penis in my mouth. And I wasn't very - - I didn't like the idea, so I wasn't trying to do it. And he was just, like, not forcing me to do it, he was trying to, I guess, talk me into doing it. And I didn't want to do it, so I bit him.

Q. Did he actually place his penis in your mouth?

A. Yes, it was close, like I touched it.

Q. Close like in your mouth but not all the way?

A. Yeah. Like, my lips and stuff was on it and, like, it touched me about four times. And I wasn't liking it, so I bit him.

Q. And you remember that?

A. Yes.

At trial, S.M. and R.M. described how they handled their childhood trauma. S.M. first raised the topic with R.M. in 1999, when she was fourteen and he was nine years old. They were together in a car when S.M. asked R.M. "if he remembered the stuff that [defendant] used to do to me when we were younger?" R.M. answered, "Yes." He also told S.M. that he remembered what defendant used to do to him as well. Although S.M.'s grandfather was in the car, they did not tell him.

The next time this topic arose was in 2003, when S.M. noticed something was wrong with T.S. S.M. discussed it with R.M., who also shared S.M.'s concerns. Although R.M. initially felt apprehensive about coming forward, S.M. decided to discuss the matter with W.M., T.S.'s grandmother. W.M. described this conversation at a N.J.R.E. 104 hearing, which the trial judge conducted outside of the presence of the jury. W.M. testified that S.M. told her in 2002 that defendant had sexually molested her years earlier. S.M. was about seventeen years old when she revealed this fact to W.M. According to W.M., S.M. did not provide details of the molestation because "she was too upset." Although W.M. testified she attempted to investigate what could be done about this, no official law enforcement action was taken at the time.

Defendant's daughter, T.S., testified that, in the summer of 2007, she moved in with her father and his girlfriend in an apartment they had in Jackson Township. T.S. further testified that in October of that same year, her father came into her room during the night while she was sleeping; he put his hand under her bed covers, and inserted his fingers into her vagina. T.S. was in the seventh grade at the time. She gave the following account of what transpired.

I had a fleece tiger blanket and it was a regular blanket over the top.

Q. Like a comforter?

A. Yes.

Q. And you said you felt his hand, put his hand under the covers, right? Did you - - just describe to me a little bit, were you sleeping?

A. Yes.

Q. Okay. And at what point do you recall waking up?

A. I would be - - I would feel a cold touch. But I wouldn't wake up and open my eyes. I would just pretend to be sleeping. So right when I would be touched, I would wake up.

Q. Do you remember how many times this happened?

A. I do not recall how many times.

Q. Was it more than once?

A. Yes.

Q. Was it a couple of times?

A. Yes.

Q. And when you said that he had touched you, when you felt that cold hand, where did you feel the hand?

A. Right between my legs.

Q. Would that have been under your clothing?

A. Yes.

Q. And what did you normally sleep in when you went to sleep?

A. T-shirt, shorts, basketball shorts or sweat pants.

Q. Underwear?

A. Yes.

Q. And I'm going to have to ask you specifically what you felt when you said felt him touching you and you felt the cold hands. What did you feel him doing?

A. Putting his fingers inside me.

Q. Inside where?

A. My vagina.

No official action was taken to investigate these allegations until 2009. On May 23, 2009, T.S. told W.M. about her father's molestation. W.M. lived in Lakewood at the time, and she reported the matter to the Lakewood Police Department. A Lakewood police officer responded. After speaking to W.M., the officer brought the matter to the attention of the Jackson Township Police Department. The officer who responded described both T.S. and W.M. as being extremely upset.

The investigation quickly expanded in scope to include all three children. After taking statements from all three victims, the detectives in charge of the case sought to interrogate defendant. At this point, the law enforcement agents learned defendant had been transported to the emergency room of the Kimball Medical Center to be treated for injuries he sustained in an assault. Defendant was treated for lacerations and bruises and given a topical anesthetic. When the detectives arrived at the hospital, defendant was calm and collected. The treating nurse noted in his chart that he walked unaided to a private area of the hospital where the detectives interviewed him.

The detectives noted defendant had been treated for a head injury, as well as injuries and bruises to his arm. He did not report being in pain and did not have any visible signs of lethargy or disorientation. Defendant also used the bathroom without assistance. The detectives interrogated defendant in a room described as being approximately ten by twelve feet in area. The room also contained a hospital bed with a snack tray. During the interrogation, defendant sat upright on the bed and dangled his legs over the side. The two detectives sat in front him and a police officer stood by the room's entrance.

The record shows defendant was advised of his rights under Miranda4 and executed written waiver. After waiving his rights, defendant answered the detectives' questions without an attorney being present. Defendant initially denied the allegations of sexual molestation made against him by the three complaining witnesses. The statement that defendant gave to the detectives on July 6, 2010 covers fifty-seven pages and followed the standard interrogation format. In the course of this lengthy interrogation, defendant admits to touching his daughter's breasts and massaging the area of her legs near her vaginal area, ostensibly as a means to treat her aches and pains. Defendant also claimed to have been sexually assaulted by his uncle when he was seven years old.

Defendant testified in his own defense at trial. He unsuccessfully moved to dismiss the indictment as it pertained to two of the three victims. The trial court also denied defendant's motion to suppress his statement to the detectives after conducting an evidentiary hearing.

II

Defendant now appeals and raises the following arguments.

POINT I

THE AUDIOTAPED STATEMENT TAKEN FROM M.L.S. AT THE HOSPITAL WAS INVOLUNTARY AS IT WAS THE RESULT OF THE COERCIVE INTERROGATION OF AN INJURED MAN WHO WAS IN SEVERE PAIN. CONSEQUENTLY, IT SHOULD HAVE BEEN SUPPRESSED. U.S. CONST. AMENDS. V, XIV; N.J.R.E. 503.

POINT II

THE SENTENCE IMPOSED IS EXCESSIVE, OWING TO SEVERAL FAULTY FINDINGS BY THE TRIAL COURT.

In his pro se supplemental brief, defendant argues the following points

POINT I

MIRANDA WARNINGS WERE NOT ADEQUATELY GIVEN TO ENSURE STATEMENTS WERE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE BY DEFENDANT-APPELLANT.

POINT II

THE GRAND JURY WAS DENIED EXCULPATORY EVIDENCE TO PROPERLY CARRY OUT IS INVESTIGATIVE FUNCTION.

POINT III

PROSECUTORIAL MISCONDUCT PREJUICE [SIC] THE DEFENDANT-APPELLANT FUNDAMENTAL RIGHTS TO AN UNBIASED GRAND JURY.

POINT IV

TRIAL ERRORS CUMULATIVE EFFECT POSSESSED A CLEAR CAPACITY TO BRING AN UNJUST RESULT FROM THE EGREGIOUS MISCONDUCT THAT DEPRIVED A FAIR TRIAL FOR DEFENDANT-APPELLANT.

POINT V

APPELLANTS [SIC] ILLEGAL/EXCESSIVE SENTENCE ONLY ALLOWED BECAUSE RESPONDENT VIOLATED THE EX POST FACTO CLAUSE AND STATUE [SIC] OF LIMITATIONS UNCONSTITUTIONALLY.

We reject these arguments and affirm. As to argument Point I, we incorporate by reference Judge Francis R. Hodgson, Jr. s memorandum of opinion, dated October 25, 2010, and adopt the well-reasoned analysis and ultimate conclusion denying defendant's motion reflected therein. With respect to argument Point II, the sentence imposed by Judge Hodgson reflects a careful consideration of the aggravating and mitigating factors codified in N.J.S.A. 2C:44-1. Judge Hodgson decided not to impose consecutive terms of imprisonment, despite the fact defendant was found guilty of committing first degree aggravated sexual assaults against three separate victims, all of whom were particularly vulnerable due to their youth and defendant's position of trust. See State v. Carey, 168 N.J. 413, 422-23 (2001) (quoting State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)). Thus, we discern no legal basis to interfere with the sentence. State v. Case, 220 N.J. 49, 64-65 (2014); State v. Fuentes, 217 N.J. 57, 72-74 (2014).

We have also reviewed the additional arguments raised by defendant in his pro se submission and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Other than law enforcement agents, pursuant to Rule 1:38-3, all names used in describing the facts of this case are fictitious to protect the confidentiality of the individuals involved in these events.

2 R.M. was approximately three years old at the time.

3 When the prosecutor asked S.M. to describe the details of the sexual assault, she became emotionally distraught; the trial judge recessed the trial briefly to allow her to regain her composure. The trial resumed "a few minutes" later.

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