Last minute evidence by State improper State v P.S.

Last minute evidence by State improper State v P.S.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. P.S.,

Defendant-Appellant.

______________________________________________________

March 26, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-10-1757.

Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard A. Gonzalez,of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of his conviction by a jury of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), of G.D. (hereafter Grace, a fictitious name) – which occurred in 2006 when Grace was approximately eleven years old – and one count of third-degree endangering, N.J.S.A. 2C:24-4(a), defendant argues, among other things, that the trial judge erred in admitting the State's photographs – taken the same day the defense rested – of the area in question. Because we agree the judge abused his discretion in permitting this rebuttal evidence – particularly when the rebuttal witness's testimony about the photographs acknowledged numerous changes to the area in the intervening years – we reverse.

The evidence adduced at a trial in 2009¹ revealed that in 1997 Grace's family, consisting of her parents and her twin sister, moved to Ridgewood. Defendant, his wife, and their two sons, resided in the house next door. Grace and one of defendant's sons were of the same approximate age and often played together in defendant's yard because it contained a basketball court, a rope swing, puppies and chickens. At one point, to give the children safer access to and from his yard, defendant cut a hole in his chain link fence that separated his property from Grace's family's yard, eliminating the need for the children to reach his yard by walking along a busy street.

The two families were friendly, and Grace's mother neither observed nor suspected any problem until May 2006, when Grace began suffering from headaches and fatigue.² According to her mother, Grace also exhibited physical symptoms that suggested she was having her first period, and she took Grace for a medical examination during which Grace revealed that defendant had touched her vagina through her clothing.³ Grace appeared uncomfortable discussing this with a male physician, so a female physician spoke with and examined her. Grace provided further detail to the female doctor, who, although finding no objective signs of injury and concluding Grace was probably experiencing her first period, suggested Grace and her mother speak to the police. The investigation that followed led to defendant's indictment.

At trial, although the State called five other witnesses, only Grace provided direct evidence of the alleged crimes.⁴The prosecutor conceded there was a "lack of physical and scientific evidence," and "although there were [others] present in and around the area" when the alleged abuse occurred, the jury would not hear "eyewitness testimony." In short, Grace was the source of the evidence provided by the other witnesses.

Grace testified that defendant first improperly touched her when she was in the third grade, estimating such incidents occurred approximately twenty times over a three-year period either inside defendant's home or in his backyard. Grace acknowledged no one else was present when defendant touched her. She provided specific incidents of abuse that occurred inside defendant's house and others that occurred outside, near a truck, a doghouse and a chicken coop in the yard. Through effective cross-examination, defense counsel revealed a number of inconsistencies in Grace's recollection of these events.

The jury also heard testimony from witnesses called by the defense. A.C., a neighbor, who tended to be home all day, had a kitchen window with a view of defendant's backyard. A.C. testified she had never observed Grace alone with defendant. A.C. also had tenants, one of whom testified she could see part of defendant's backyard from her window; she too testified she had never seen defendant alone in the yard with Grace. Defendant's wife provided similar testimony.

When the defense was about to rest near the end of this nine-day trial, the prosecutor advised the trial judge of his intention to "mount a very . . . narrow one witness rebuttal" to respond to the evidence offered by the defense regarding the configuration and appearance of defendant's backyard. Grace was permitted, over defendant's objection, to resume the witness stand, and she testified about a series of photographs taken that morning by a member of her family. 

Defendant was convicted and, on December 18, 2009, sentenced to an aggregate seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appeals, arguing:

I. THE INTRODUCTION BY THE STATE, DURING THE REBUTTAL PHASE OF TRIAL, OF PHOTOGRAPHS TAKEN ON THE MORNING THE DEFENSE PLANNED TO REST, WERE PREJUDICIAL AND DEPRIVED DEFENDANT OF FAIR TRIAL, THUS WARRANTING THAT DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

II. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENT CONSTITUTED PROSECUTORIAL MISCONDUCT, PREJUDICED DEFENDANT AND WARRANT REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

We agree with the arguments posited in Point I and, therefore, reverse and remand for a new trial. And, although not necessary to our decision, we briefly comment on Point II.

I

Defendant argues the trial judge abused his discretion in allowing rebuttal in the form of photographs of defendant's backyard and the surrounding area that were admitted through and described by Grace's additional testimony.

In particular, the prosecutor sought to elicit this evidence to respond to testimony about a space in the fence used by Grace to enter defendant's yard:

MR. CALVIELLO: The . . . nine or ten photos of the fence line – the majority of which focus on the actual hole in the fence.

In addition, . . . to the limited testimony regarding the fence – and . . . in the eyes of the child victim who recalled the fence, who utilized that hole in the fence, and who can testify not only about . . . when she realized it was originally cut, then . . . the modest alteration they did to it later on . . . , and then later on when there was . . . the arrest.

And, in fact, [Grace] can give us the three stages and it's depicted in the photos . . . by virtue of the difference in the fence. . . .

But, Judge, there's additional relevance of usefulness of these photographs, which I think the jury will benefit from. For instance, they'll get to see the tree lines and they'll know in the spring and summer, when these trees are in bloom, the very limited view that there is from [Grace's] house of [defendant's] backyard. Again, another subject of very extensive debate, particularly, on the defense side.

In addition, Judge, the doghouse that was testified to. It's still in existence in the defendant's backyard – the size of it – which is fair for consideration – the placement of it now, which has since . . . been moved.

. . . .

[It] [i]s a fairly good photograph of the size of that doghouse and where it is today and where it was at the time of the incident in question.

Although he acknowledged the State's "right to bring in rebuttal evidence," defense counsel objected to this "eleventh hour" evidence, observing the need for any such evidence should have been sooner realized; indeed, as counsel repeatedly pointed out to the trial judge, the case had previously been tried but resulted in a mistrial when the jury could not reach a verdict. He argued that if photographs were truly needed to respond to the defense's theory that the area where some of the alleged incidents occurred was not secluded – and it was not therefore logical or believable that defendant would sexually abuse the child in a clear and open area – the State should have recognized that need long before the last day of testimony in the second trial on this indictment.

In addition, defense counsel argued that because the charged events had "happened three, four, five, maybe six years ago," the idea that the newly-minted photographs would present an accurate picture for the jury of the yard as it appeared many years earlier – particularly, in light of the intervening growth of trees and shrubbery in the area, and the changed location of the dog house and a truck – was preposterous and, therefore, the admission of the photographs would tend to confuse the jury.

Defense counsel urged the prejudicial impact of the prosecutor's last minute offer of this evidence:

MR. STRATIS: We have rules that this [c]ourt lives by. . . . The discovery process is one by which I'm entitled to photographs in advance.

I'd like to see on his exhibit list where he requested or suggested that he's going to bring in photographs. Perhaps, [if he had], I would have gotten a professional photographer to go out.

Maybe he would have sat in [A.C.'s] kitchen and taken photographs from every angle. Maybe I want a picture from [defendant's] backyard. Maybe I want pictures. . . .

I am entitled to these photographs as part of the exhibit list that should have been given to me before trial number one. At a minimum, it should have been given to me before trial number two. It hasn't been done.

[The prosecutor] knows my closing argument is about the lack of physical evidence and he wants to bring in [an] array of photographs to show the jury – or to suggest to them that, yes, I've got photographs.

Defense counsel also asserted the prejudicial nature of the late offer of evidence – "pictures mean a lot to a jury," they are "something they can hold on to . . . [and] see." And he argued prejudice in the timing of the offer because these photographs, which undercut the defense argument about the prosecution's lack of tangible evidence, would be the last thing the jury would see come into evidence.

These were all valid reasons for the exclusion or limitation of the rebuttal testimony, all of which were further amplified by the unusual circumstance – the surprising fact that the State did not sooner photograph the area in order to provide the jury with pictures to go with testimony it had already heard. The issue on appeal has been confounded by the confusing colloquy among the prosecutor, defense counsel and the judge regarding the State's offer and the defendant's concerns. And, despite a lengthy discussion,⁵ the record lacks a clear expression of the judge's reasoning for allowing the rebuttal evidence; indeed, we only know the judge granted the prosecutor's application because Grace was called to the stand and questioned about most of the photographs taken that morning. Our review of the issue, therefore, has been disserved or greatly clouded because the judge failed to explain why he permitted the admission of this evidence.  See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

To be sure, the admissibility of rebuttal evidence rests in the trial judge's sound discretion.  State v. Beard, 16 N.J. 50, 59 (1954); see also State v. Sturdivant, 31 N.J. 165, 178 (1959) (recognizing the trial judge is vested with "considerable discretion" in determining whether to permit rebuttal evidence), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed.2d 873 (1960); State v. Menke, 25 N.J. 66, 71 (1957) (observing "the exercise of that discretion will not be interfered with in the absence of mistaken use thereof"). In this case, a proper exercise of that discretion required an examination of three circumstances: the reason for the prosecution's failure to offer the evidence in the State's case-in-chief; the materiality of the evidence; and how defendant was prejudiced, which was described by the Menke Court as "the extent, if any, to which the defendant suffered greater damage than would have been imposed if the evidence had been offered at the proper time."  See Menke, supra, 25 N.J. at 71.⁶

Here, as we have observed, the case was tried on an earlier occasion. The jury could not then agree on a verdict. But, as a consequence, both sides gained a full understanding of the proofs that would be offered; accordingly, there were no surprises presented by defendant's evidence during the second trial. The State should have had a clear understanding of a need for the evidence that it did not offer until seeking the right to present rebuttal evidence. Although the record does not suggest the prosecution deliberately withheld an offer of photographs of the backyard so as to disadvantage defendant, the delay is so inexplicable that it can certainly be said that the prosecution's actions were reckless. The State must have understood that the defense theory included an assertion that whatever might occur in the yard would be visible to a number of potential witnesses in the neighborhood, thereby suggesting the child was not credible in asserting that the abuse occurred in the yard. Accordingly, we agree with defendant that the timing of the offer was highly suspicious.

The prejudice to defendant is also undeniable. Photographs, as the Supreme Court has recognized, possess a "persuasive representational nature."  See Brenman v. Demello, 191 N.J. 18, 30 (2007); see also State v. Moore, 122 N.J. 420, 466 (1991); State v. Smith, 27 N.J. 433, 449 (1958). Moreover, these photographs – presented in dramatic eleventh hour fashion – constituted the last tangible evidence presented to the jury.

And the prejudice was enhanced by the intervening years and the changes to the property's appearance from the time of the alleged events to the date the photographs were taken.⁷ This undisputed circumstance not only presented a potential for confusing the jury's understanding of the testimony about what may or may not have occurred in the yard years earlier, but also constituted a basis for excluding the photographs as improperly authenticated. In this latter regard, the Supreme Court has held that to authenticate a photograph, the proponent must demonstrate that

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

[State v. Wilson, 135 N.J. 4, 15 (1994); see also State v. Joseph, 426 N.J. Super. 204, 220 (App. Div.), certif. denied, 212 N.J. 462 (2012).]

Although Grace testified the photographs accurately depicted the yard and other fixtures in the yard as they appeared on the date she testified, her direct testimony also demonstrated the many substantial changes to the area that we have already pointed out. The judge made no findings on these questions despite defense counsel's zealous assertions along these lines. Because there was no dispute about the substantial changes to the area between the time of the alleged offenses and the day the photographs were taken, the judge should have sustained defendant's objections.

The fact that the other evidence presented a close case for the jury to decide, the State's dramatic, last-minute and highly suspect presentation of these photographs was clearly capable of producing an unjust result.

II

Although not necessary to our decision in light of the above, in his second point defendant claims his right to a fair trial was prejudiced by the prosecutor's summation, in which he argued that some of defense counsel's arguments were "[b]y and large . . . downright repulsive."⁸ We agree this was an improper comment. As our Supreme Court has held, improper remarks in a summation will not always be deemed prejudicial because in many situations the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made."  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001).

The prosecutor's role in the criminal justice system is not to seek convictions but to ensure justice is done; the prosecutor must, therefore, refrain from employing improper methods calculated to produce wrongful convictions.  Id.at 587; State v. Rivera, 437 N.J. Super. 434, 443 (App. Div. 2014). One such improper method is disparagement because a prosecutor's expression about the bona fides of the accused's arguments may tend, "in the minds of jurors[,] [to] . . . add the weight of the prosecutor's official and personal influence and knowledge to the probative force of the evidence adduced."  State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.2d 1039 (1963). Although prosecutors possess considerable leeway to make vigorous and forceful contentions, they may not "cast[] unjustified aspersions on the defense or defense counsel."  State v. Nelson, 173 N.J. 417, 461 (2002); see alsoState v. Smith, 167 N.J. 158, 177 (2001). The prosecutor exceeded the bounds of proper advocacy when he stated to the jury that defendant's arguments were largely "downright repulsive."

Defense counsel did not object, giving rise to application of the plain-error standard of review. Because we reverse on other grounds, however, we need not decide whether the prosecutor's improper comment was capable of producing an unjust result.

Reversed and remanded for a new trial. We do not retain jurisdiction.

1 It is not clear why the appeal was not commenced until 2012, when defendant was required to seek and obtain leave to file a notice of appeal out of time. It further appears defendant has already served his prison sentence, but because he is not a citizen he remains incarcerated on an immigration detainer.

2 Grace's mother testified that defendant "treated [Grace] like he would treat any other child[,] [and she] didn't see anything wrong with the way they were interacting with each other." She acknowledged that it was "fair to say that [she] did not see any of the events" alleged.

3 Grace testified in general that there were approximately twenty instances – only eight of which were specifically described – in which defendant improperly touched her. She acknowledged defendant never made direct contact with her vagina, he only touched or pinched her there through her clothing.

4 The other witnesses were Grace's mother, a police detective who interviewed Grace, an expert who testified about child abuse sexual accommodation syndrome, and the male and female physicians who met with and examined Grace before the investigation leading to defendant's indictment. These other witnesses provided no independent evidence of the alleged crimes. For example, the prosecutor acknowledged in his opening statement that the physicians would not provide "evidence of any physical injury as a result of the abuse" and Grace's physical complaints were "very likely [] the onset of her menstrual cycle."

5 The argument consists of approximately 100 single-spaced transcript pages. The transcript is not always illuminating; most of the argument consists of the two attorneys interrupting each other as they pressed their positions.

6 In other words, the prejudice factor does not relate to whether "the additional evidence is harmful" to the defendant but whether the defendant has taken action since the prosecution rested that placed the defendant in a disadvantageous position in attempting to respond to the evidence offered in rebuttal, for example, whether "the defendant had excused his witnesses who would have been used to rebut the new evidence offered."  Menke, supra, 25 N.J. at 71.

7 For example, Grace pointed out numerous differences between what the photographs depicted and the appearance of the same area when the alleged events occurred. Those differences included: a new wooden fence; vines that were "usually cut" on earlier occasions had been permitted to grow along the fence; the doghouse, in which one of the alleged events occurred, had changed locations; a truck that factored into another alleged event was not in the same location; a bush along the property line had grown larger; and a swing set on the property of Grace's family was not in the same location.

8 Defendant also complains of the less severe assertion in the summation that the law allows a child victim to take the stand and "to be subjected to a[n] aggressive, at times, and antagonistic cross examination[.]"