STATE OF NEW JERSEY VS. AQUIL MALIK (15-04-0289, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2683-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AQUIL MALIK, a/k/a MALIK
AQUIL,
Defendant-Appellant.
_____________________________
Submitted September 26, 2018 – Decided December 10, 2018
Before Judges Fuentes and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 15-04-0289.
Cynthia H. Hardaway, attorney for appellant.
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Erin Smith Wisloff, Supervising
Assistant Prosecutor, and Paula C. Jordao, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Aquil Malik appeals from his conviction by jury of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count two) for which he was
sentenced to a ten-year term subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2; convictions for first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(5) (count one) and second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1) (count four) were merged into count two.1 Defendant argues:
POINT I
THE STATE'S TREATMENT OF DEFENDANT
WITH RESPECT TO HIS PLEA OFFER WAS
ARBITRARY AND ABUSIVE.
POINT II
THE TRIAL PROSECUTOR'S REMARKS IN
OPENING AND ON SUMMATION WERE
IMPROPER.
POINT III
THE COURT ERRED IN NOT ALLOWING
DEFENDANT HIS RIGHT TO CONFRONT THE
[WITNESS (A.E.)] WITH RESPECT TO HER PRIOR
INCONSISTENT TESTIMONY.
1
Count three charging second-degree conspiracy to commit aggravated sexual
assault, N.J.S.A. 2C:5-2; N.J.S.A. 14-2(a)(5), was dismissed at the State's
request.
A-2683-16T2
2
POINT IV
THE COURT'S DENIAL OF DEFENDANT'S
REQUEST FOR A NEW TRIAL DUE TO THE
STATE'S FAILURE TO PRESERVE AND TURN
OVER EXCULPATORY EVIDENCE WAS IN
ERROR.
POINT V
THE JURY INSTRUCTIONS WERE MISLEADING
AND INCOMPLETE.
POINT VI
THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE.
POINT VII
DEFENDANT'S SENTENCE SHOULD BE
VACATED.
We are unpersuaded by any of these arguments and affirm.
Defendant and his codefendants, Tyrec D. Phillips and DeQuan McDaniel,
were charged in a single indictment 2 with sexually assaulting seventeen-year-
old A.E. in McDaniel's car on September 4, 2011. In the counts charging
aggravated sexual assault, the State alleged defendants, while aided or abetted
by one or more other persons, used physical force or coercion to sexually
2
The indictment superseded an indictment that was not included in the record
on appeal.
A-2683-16T2
3
penetrate A.E. (count one) and committed acts of penetration upon A.E., whom
they "knew or should have known was physically helpless" because she was
highly intoxicated (count two). In the sexual assault count (count three) the
State alleged all three defendants committed sexual penetration by using
physical force or coercion without severe personal injury having been sustained
by A.E.
In a pre-indictment plea offer, extended in December 2013 under the first
indictment, the State agreed to recommend a third-degree prison sentence
ranging from three to five years if defendant pleaded guilty to second-degree
sexual assault.3 Status conference orders for Phillips and McDaniel set forth the
same plea offer, although specific sentencing ranges were not set forth in either
document.4
3
The plea agreement also required the imposition of Megan's Law, N.J.S.A.
2C:7-1 to -23, conditions, parole supervision for life and parole ineligibility
pursuant to NERA.
4
The State included in its appendix the trial assistant prosecutor's certification
providing that: (1) the same pre-indictment offer was extended to all three
codefendants; (2) on August 4, 2016, defendant's prior counsel counter-offered
– and the State accepted – that defendant would agree to a three-to-five-year
sentence on a plea to second-degree conspiracy to commit aggravated sexual
assault which would not include the imposition of Megan's Law conditions. The
assistant prosecutor continued, prior to entering a plea defendant hired his
present counsel who counter-offered that defendant would plead guilty to an
A-2683-16T2
4
Phillips pleaded guilty in May 2016 to count three of the superseding
indictment, amended to charge third-degree conspiracy to commit criminal
sexual contact, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:14-3(b), admitting he
planned with his codefendants to purposely supply alcohol to A.E. "in order to
get her drunk to sexually assault her." He also admitted to taking A.E. to "a
remote location" and, knowing that she was "drunk and helpless," acted as a
lookout while his codefendants had vaginal intercourse with the victim without
her consent. He was sentenced in accordance with the plea agreement to a one-
year probationary term with nineteen days of jail credit.
McDaniel pleaded guilty in June 2016 to count two of the superseding
indictment amended to charge third-degree conspiracy to commit aggravated
sexual contact, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:14-3(a). He admitted that he
agreed with his codefendants to commit an act of aggravated sexual contact upon
A.E., and knowing she was helpless and incapacitated by alcohol consumption
and unable to consent to anyone touching her breasts, he drove her to a location
unspecified charge in return for a probationary sentence. This certification,
dated December 13, 2017, was not part of the trial record. Defendant did not
file a reply brief acknowledging the contents of the certification. The State did
not move to supplement the appellate record under Rule 2:5-5. We will not
consider same in our review. Pressler & Verniero, Current N.J. Court Rules,
cmt. 1 on R. 2:5-4 (2018).
A-2683-16T2
5
so that he could commit that act for his own sexual gratification. He was also
sentenced to a one-year probationary term with 171 days of jail credit and
ordered to complete fifty hours of community service.
Defendant argues "the State unfairly and unjustifiabl[y] singled [him] out
for harsher punishment for offenses arising out of the exact same conduct and
proofs as his codefendants." In other sentencing-related arguments, he contends
the trial court erred by failing to apply mitigating factors two, five, seven, nine,
twelve and thirteen and by failing to find "that imprisonment under the facts of
this case would be a serious injustice overriding any . . . need to deter conduct
by others," citing N.J.S.A. 2C:44-1(d).
We review sentencing determinations with a deferential standard, see
State v. O'Donnell, 117 N.J. 210, 215 (1989), and will disturb a trial court's
sentence only in instances where the sentencing guidelines were not followed,
the aggravating and mitigating factors found by the trial judge were unsupported
by the evidence, or the judge's application of the sentencing guidelines rendered
the sentence clearly unreasonable, State v. Roth, 95 N.J. 334, 364-65 (1984).
Under that deferential standard, only when the facts and law show "such a clear
error of judgment that it shocks the judicial conscience" will we modify a
sentence on appeal. Id. at 363-64.
A-2683-16T2
6
Our analysis of a sentence is heightened, however, when a defendant
claims sentencing disparity. Our Supreme Court observed in State v. Roach,
146 N.J. 208, 231-32 (1996) (citations omitted) (quotation marks omitted),
uniformity [is] one of the major sentencing goals . . .
[as] there can be no justice without a predictable degree
of uniformity in sentencing. . . . The central theme of
our sentencing jurisprudence is the exercise by the
courts of a structured discretion designed to foster less
arbitrary and more equal sentences.
The Court recognized the legislative basis for that structure:
To minimize disparity, a sentencing court exercises its
discretion in the structured setting prescribed by the
[Criminal] Code. Our statutes provide a "'general
framework to guide judicial discretion in imposing
sentences' to ensure that similarly situated defendants
[do] not receive dissimilar sentences." State v. Natale,
184 N.J. 458, 485 (2005). When an ordinary term of
incarceration is warranted, N.J.S.A. 2C:43-6(a)
prescribes statutory ranges for that term based upon the
degree of the offense: ten to twenty years for a first-
degree crime, five to ten years for a second-degree
crime, three to five years for a third-degree crime, and
up to eighteen months for a fourth-degree crime.
N.J.S.A. 2C:43-6(a)(1) to (4).
[State v. Fuentes, 217 N.J. 57, 72 (2014) (second
alteration in original).]
The purpose of the statutory guidelines is to promote fairness and public
confidence in the "even handed justice of our system." Roach, 146 N.J at 232-
A-2683-16T2
7
33 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The ultimate determination
"is whether the disparity is justifiable or unjustifiable." Id. at 233.
Although we look to the Court's decision in Roach for guidance in
analyzing this disparity claim, we are mindful its facts and those in this case are
dissimilar. In Roach, all defendants were sentenced after trials; none of the
defendants accepted plea offers. Phillips and McDaniel forwent trial and
pleaded guilty.
The trial court here found defendant and his codefendants were similarly
situated in that each had unwanted sexual intercourse with the helpless victim
and were "equally culpable," for the assaults. When the State explained the
reasons for extending the codefendants' plea agreements and for declining to
offer similar plea terms to defendant, the trial court took umbrage that the State
re-indicted all defendants with full knowledge of the strengths and weaknesses
of its cases against all three.
Though the State may have had sufficient evidence justifying its decision
to obtain the superseding indictment against all three defendants, it was also
entitled to discretely assess the proofs necessary to obtain a conviction of each
defendant in formulating plea offers. "The decision whether to offer a plea
bargain is a matter of prosecutorial authority and discretion." State v. Gruber,
A-2683-16T2
8
362 N.J. Super. 519, 537 (App. Div. 2003). "[A] defendant has no legal
entitlement to compel a plea offer or a plea bargain; the decision whether to
engage in such bargaining rests with the prosecutor." State v. Williams, 277
N.J. Super. 40, 46 (1994).
The record supports the State's assertion that the proofs against defendant
were stronger than those against the codefendants. A.E.'s first perception when
she regained consciousness in the back seat of the vehicle was defendant atop
her, vaginally penetrating her. Defendant was the only one of the three with
whom the victim had a Facebook exchange and two consensual-telephonic
intercepts. Defendant's statement to the police was more self-inculpatory than
those given by the codefendants.
Although the trial court felt all three codefendants were equally culpable,
the State was entitled to gauge its plea offer on the relative strength of the proofs
in each case. Under the circumstances, we do not perceive that the State abused
its discretion in declining to lower the three-to-five-year offer initially tendered
to defendant, but lowering that same offer to each of the codefendants, even if
it resulted in a greater sentence imposed on defendant after trial – a sentence at
the very bottom of the range for a first-degree crime. "[A] sentence of one
defendant not otherwise excessive is not erroneous merely because a co-
A-2683-16T2
9
defendant's sentence is lighter." Hicks, 54 N.J. at 391; see also Roach, 146 N.J.
at 232. As the trial court observed at the sentencing proceeding, "[i]t's not that
[defendant's] offense deserves less, it's that the co[] defendants deserved more
. . . ." The sentencing disparity here was justified.
We give no credence to defendant's contention that the court erred in
determining the sentence. The court carefully reviewed and set forth its findings
for all proposed aggravating and mitigating factors. Defendant argues
mitigating factors seven and twelve applied because he had no prior criminal
history and led a law-abiding life for a substantial period of time, and because
he implicated his codefendants in his statements, respectively; he offers no
explanation for his averment that mitigating factors two, five, nine and thirteen
should have been applied.5
5
The mitigating factors at issue, set forth in N.J.S.A. 2C:44-1(b), are:
(2) The defendant did not contemplate that his conduct
would cause or threaten serious harm;
....
(5) The victim of the defendant’s conduct induced or
facilitated its commission;
....
A-2683-16T2
10
The court, which also presided over the trial, found that under the
circumstances of the case defendant "should have contemplated something"
when he sexually assaulted the victim. The court could not find on the record
before it that the victim facilitated the crime. And, because it found a risk that
defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3) (aggravating
factor three), based on defendant's arrest and conditional discharge for a
shoplifting offense he committed while released on bail for the sexual assault
charges, the court did not find that the defendant's character and attitude
indicated he was likely to commit another offense.
(7) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the
present offense;
....
(9) The character and attitude of the defendant indicate
that he is unlikely to commit another offense;
....
(12) The willingness of the defendant to cooperate with
law enforcement authorities;
(13) The conduct of a youthful defendant was
substantially influenced by another person more mature
than the defendant.
A-2683-16T2
11
That conditional discharge also buttressed the court's "find[ing] that
there's no prior criminal activity." See State v. Rice, 425 N.J. Super. 375, 382
(App. Div. 2012) (holding a sentencing court did "not abuse its discretion by
refusing to find mitigating factor seven based on charges that did not result in
convictions"). We also note the court's description of this factor as "a toss-up,"
indicating the factor was of little weight. The court also rejected defendant's
contention that he cooperated with law enforcement, finding defendant's
statement to the police during the investigation of the crime did not warrant that
mitigating factor. See State v. Read, 397 N.J. Super. 598, 613 (App. Div. 2008)
(questioning whether a confession qualifies as a mitigating factor, and holding
that a defendant's confession that provided a limited benefit to the State was not
entitled to any substantial weight in determining a sentence). The lenient plea
offers to the codefendants make obvious that defendant's statement provided no
benefit to the State.
Defendant did not propose mitigating factor thirteen during the sentencing
proceedings. The court's findings in rejecting mitigating factor three, however,
also warrant rejection of this mitigating factor: "[Defendant] may have been
urged on by his buddies to join in [the sexual assault], it's your turn, but that's
A-2683-16T2
12
not strong provocation . . . ." All of the court's findings were supported by the
evidence.
After a thorough analysis, the court found the risk that defendant would
commit another offense and the need to deter defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9), as aggravating factors; and that
defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A.
2C:44-1(b)(8), as a mitigating factor. In light of the balance of the aggravating
and mitigating factors, the judge concluded the mitigating factor did not
substantially outweigh the aggravating factors.
The court also concluded that it could not find "that imprisonment would
constitute a serious injustice overriding the need for deterrence" after
"consider[ing] everything in light of the trial that the [c]ourt presided over"; it
declined to find the presumption of imprisonment was overcome. N.J.S.A.
2C:44-1(d).6 The record reflects the court's careful consideration of this issue.
6
Subsection (d) provides in part:
The court shall deal with a person who has been
convicted of a crime of the first or second degree . . .
by imposing a sentence of imprisonment unless, having
regard to the character and condition of the defendant,
it is of the opinion that his imprisonment would be a
A-2683-16T2
13
The tenor of the court's lengthy sentencing remarks reflect that it was inclined
to reduce the disparity between defendant's sentence and those of his
codefendants. The court, however, adhered to the sentencing guidelines and its
decision was clearly reasonable. Defendant was not so "idiosyncratic," and the
record does not reflect circumstances that were "truly extraordinary and
unanticipated," that imprisonment amounted to a serious injustice. State v.
Jabbour, 118 N.J. 1, 7 (1990) (first citing State v. Jarbath, 114 N.J. 394, 408
(1989), and then quoting Roth, 95 N.J. at 358).
The ten-year sentence imposed was the minimum for a first-degree crime,
N.J.S.A. 2C:43-6(a)(1), so the court's decision not to accept a mitigating factor,
even if applicable, does not render the sentence unreasonable. The sentence
conforms to the statutory framework and does not constitute an abuse of
discretion; it does not shock the judicial conscience and will not be disturbed.
State v. Cassady, 198 N.J. 165, 184 (2009) (affirming a sentence because it did
not shock the judicial conscience).
In Point II, defendant argues for the first time on appeal that two
comments in the assistant prosecutor's opening and closing statements – that
serious injustice which overrides the need to deter such
conduct by others.
A-2683-16T2
14
A.E. was sexually assaulted by defendant and the codefendants – deprived him
of a fair trial and warrant reversal.
In her opening statement, the assistant prosecutor told the jury that the
night A.E. was assaulted "was the worst night of her life" because she was
assaulted by three males who "took turns penetrating her vagina and her mouth
while she was highly intoxicated, in and out of consciousness, and unabl e to
consent to such actions." We quote that portion of the assistant prosecutor's
summation that defendant set forth in his merits brief:
On September [fourth, A.E.] was sexually assaulted by
this defendant and two other individuals . . . [A.E.] that
night was driven to an isolated area. She was stripped
of her clothing. Her mouth was wiped out by baby
wipes, and then there three individuals continued to
strip her [of] her dignity by continuing to sexually
assault her . . . .
Defendant contends the statements were "inaccurate legal assertion[s]"
because the assistant prosecutor knew the codefendants pleaded guilty to
conspiracy charges – not sexual assault. He also argues the comments "grouped
the three defendants together in [one] concerted effort" and "could have unfairly
led the jurors to conclude[] that if [the codefendants], who were not at the trial,
had already been convicted of sexual assault then defendant as part of that group
must also be guilty of that same offense."
A-2683-16T2
15
We review arguments raised for the first time on appeal under a "plain
error" standard which requires reversal only if the error was "clearly capable of
producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325,
337-38 (1971). A conviction will be reversed under this standard only if the
error is "sufficient to raise a reasonable doubt as to whether [it] l ed the jury to a
result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95
(2004) (alteration in original) (quoting Macon, 57 N.J. at 336). "The mere
possibility of an unjust result is not enough." State v. Funderburg, 225 N.J. 66,
79 (2016) (citing State v. Jordan, 147 N.J. 409, 422 (1997)).
Prosecutorial misconduct does not warrant reversal unless it was "clearly
and unmistakably improper" and was "so egregious that it deprived the
defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (first
quoting State v. Papasavvas, 163 N.J. 565, 625 (2000) and then quoting State v.
Smith, 167 N.J. 158, 181-82 (2001)). In determining whether a prosecutor
exceeded these bounds, we must "consider the tenor of the trial and the
responsiveness of counsel and the court to the improprieties when they
occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v.
Scherzer, 301 N.J. Super. 363, 433 (App. Div. 1997)). When a defendant does
not object to any of the prosecutors' opening and closing remarks, the remarks
A-2683-16T2
16
generally "will not be deemed prejudicial." Id. at 576 (citing State v. Ramseur,
106 N.J. 123, 323 (1987)). "The failure to make a timely objection not only
indicates the defense did not believe the remarks were prejudicial at the time
they were made, but also deprives the judge of the opportunity to take the
appropriate curative action." State v. Murray, 338 N.J. Super. 80, 87-88 (App.
Div. 2001) (citing Timmendequas, 161 N.J. at 576).
"Prosecutors 'are afforded considerable leeway in making opening
statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009)
(quoting State v. Williams, 113 N.J. 393, 447 (1988)). "A prosecutor's opening
statement 'should provide an outline or roadmap of the State's case' and 'should
be limited to a general recital of what the State expects, in good faith, to prove
by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div.
2014) (emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 558
(App. Div. 2004)). With regard to their summations, prosecutors "are expected
to make vigorous and forceful closing arguments to juries." State v. Frost, 158
N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). Still, a
prosecutor's summation "is limited to commenting upon the evidence and the
reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super.
236, 261 (App. Div. 2000) (citing State v. Feaster, 156 N.J. 1, 58-59 (1998)).
A-2683-16T2
17
Applying these standards, we discern no impropriety in the prosecutor's
comments. Nothing in the prosecutor's summation was outside of the evidence
presented and she directly addressed defense counsel's summation which
repeatedly referenced the actions of all three males. During her summation,
defense counsel recounted the evidence adduced at trial: "We heard about group
sex. We heard about training, three guys, one girl. Menage a trois, orgies, trains,
group sex . . . ." She graphically described the codefendants' sex acts in arguing
that A.E. was not physically helpless and consented to sex. She distanced
defendant from the codefendants' actions, describing him as a bystander "outside
of the car watching" the codefendants, simultaneously arguing that A.E.'s
protestations to the codefendants about their actions showed she was "awake
and she's making decisions about what it is that she wants to do and what she
doesn't want to do."
The prosecutor's comments did not imply that the codefendants had
already been convicted of sexual assault. The issues considered at the trial
warranted mention of the codefendants' acts. The codefendants were alleged to
have aided and abetted defendant in committing sexual penetration by using
physical force or coercion in connection with the charges in the first count of
the indictment. The codefendants' actions were also relevant to the State's
A-2683-16T2
18
contention that A.E. was physically helpless at the time of the assaults, and that
she refused to engage in sex with each one of them, especially in light of defense
counsel's summation regarding those issues. Although we see no reason for the
assistant prosecutor to have commented about the victim being stripped of her
dignity, her fleeting comments were not so egregious as to deprive defendant of
a fair trial. See Wakefield, 190 N.J. at 437-38.
Furthermore, the court twice instructed the jury that counsel's comments
were not controlling. At the outset of the trial, the court instructed the jury that
"whatever is said in the opening statements" and summations is "not evidence
and you can't consider it as such." It reiterated that instruction after summations,
telling the jury they had to "rely solely on [their] understanding and [their]
recollection of the evidence." Given the considerable leeway afforded
prosecutors in making opening and closing statements, and the court's repeated
instruction to the jury that the attorneys' remarks were not evidence, the
comments – to which no objection was raised – do not provide grounds for
reversal. See Echols, 199 N.J. at 361 (citing Ramseur, 106 N.J. at 323). The
balance of defendant's arguments – regarding the variance between the charges
to which the codefendants pleaded guilty and their actions as stated during the
trial – lack sufficient merit to warrant discussion here. R. 2:11-3(e)(2).
A-2683-16T2
19
Another trial error alleged by defendant in Point III is the court's denial of
his request to impeach A.E.'s credibility with a prior inconsistent statement. The
State adduced A.E.'s testimony that, during a police-arranged consensual
intercept between her and defendant eight months after the assault, she lied
pursuant to police instruction when she told defendant she had a sexually
transmitted disease (STD). Defense counsel confirmed on cross-examination
that A.E. lied during the intercept about the STD. Counsel then attempted to
cross-examine A.E. about her testimony during defendant's juvenile waiver
hearing.7 At that 2013 hearing, A.E. was asked, "i[n] the consensual intercept
you mentioned that you had an STD[.] Did you have an STD?" A.E. answered
affirmatively. The State objected to that question, arguing defendant was
prohibited from presenting evidence of the victim's sexual conduct pursuant to
the Rape Shield Law. N.J.S.A. 2C:14-7. At a mid-trial hearing,8 A.E. confirmed
the accuracy of the pertinent question and answer at the waiver hearing. When
asked, "[p]rior to September 4[], 2011, when this incident occurred, did you
7
The record on appeal does not include the juvenile-waiver transcript, but the
trial court read the transcript into the record.
8
The trial court noted the defense did not follow the dictates of the statute and
seek a pre-trial court order. N.J.S.A. 2C:14-7(a). The court held a hearing mid-
trial out of the presence of the jury after hearing initial arguments at sidebar.
A-2683-16T2
20
have the STD prior to this incident or after the incident?" A.E. answered,
"After."
Following our Supreme Court's directive, we will defer to and uphold a
trial court's evidentiary ruling "absent a showing of an abuse of discretion, i.e.,
there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233
(2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An appellate court
applying this standard should not substitute its own judgment for that of the trial
court, unless 'the trial court's ruling was so wide of the mark that a manifest
denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). That standard governs our analysis of the trial court's denial of
defendant's attempt to cross-examine A.E. about her statement at the waiver
hearing about she had an STD.
Although the trial court did not determine that the evidence sought to be
introduced involved the victim's sexual conduct, there can be no argument that
issue – the contraction of a sexually transmitted disease – involved "conduct or
behavior relating to the sexual activities of the victim." N.J.S.A. 2C:14-7(f).
The introduction of sexual-conduct evidence is allowed pursuant to the Rape
Shield Law
only if it is "relevant and highly material, meets the
requirements of subsections (c) and (d) of [the statute],"
A-2683-16T2
21
and its probative value "substantially outweighs its
collateral nature or the probability that its admission
will create undue prejudice, confusion of the issues, or
unwarranted invasion of the privacy of the victim."
N.J.S.A. 2C:14-7(a). Under N.J.S.A. 2C:14-7(c) and
(d), evidence of past sexual conduct is only relevant if
"it is material to proving the source of semen,
pregnancy or disease[,]" N.J.S.A. 2C:14-7(c), or "if it
is probative of whether a reasonable person, knowing
what the defendant knew at the time of the alleged
offense, would have believed that the alleged victim
freely and affirmatively" consented. N.J.S.A. 2C:14-
7(d).
[Perry, 225 N.J. at 234-35 (alterations in original)
(footnotes omitted).]
The trial court, in determining the admissibility of sexual-conduct
evidence, was required to follow a two-step analysis, first ascertaining if the
evidence was "relevant and necessary to resolve a material issue in light of the
other evidence that is available to address that issue." Id. at 236-37 (citing State
v. Garron, 177 N.J. 147, 172-73 (2003)). If the court deemed the evidence
relevant and necessary, it had to decide if the probative value of the evidence
"outweigh[ed] the prejudicial effect of the victim in the context of the Rape
Shield Law." Id. at 237 (citing State v. Budis, 125 N.J. 519, 532-34 (1991)).
The trial court ruled that although the evidence was marginally relevant,
its probative value did not outweigh its prejudicial effect because there was no
evidence in the record from which the court could conclude that the victim was
A-2683-16T2
22
lying at the prior hearing when she said she had an STD. We see no abuse of
discretion in the court's decision.
"The probative value of sexual conduct covered by N.J.S.A. 2C:14-7
'depends on clear proof that [the conduct] occurred, that [it is] relevant to a
material issue in the case, and that [it is] necessary to a defense.'" State v. J.A.C.,
210 N.J. 281, 300 (2012) (alterations in original) (quoting Budis, 125 N.J. at
533). The trial court's finding that A.E. had an STD is supported by competent
evidence. The court pointed to A.E.'s testimony during the mid-trial hearing
that she had the STD after the September 2011 incident. The court concluded
there was insufficient evidence that, when she testified at the waiver hearing in
2013, A.E. lied when she said she had an STD, and reasoned that she may not
have had an STD in 2012 during the intercept but contracted one before her 2013
testimony. In other words, although she admitted during the waiver hearing that
she had an STD, that testimony did not establish that she had an STD when the
intercept occurred.
In determining the prejudicial impact of sexual-conduct evidence, courts
may consider "the trauma to the victim, the degree to which the evidence sought
to be admitted would invade the victim's privacy, the 'impact of a given ruling
on a victim reporting sexual abuse,' as well as the need to guard victims from
A-2683-16T2
23
excessive cross-examination and prevent undue jury confusion." Perry, 225 N.J.
at 237 (quoting J.A.C., 210 N.J. at 300). Even if A.E. had an STD, that evidence
did nothing to prove the central defense theories: the victim's awareness and
consent.9 As defense counsel admitted during the mid-trial hearing, the only
purpose in asking A.E. about her statement at the waiver hearing was "just to
put out an inconsistency to attack [A.E.'s] credibility." A.E. had already
admitted that she lied to defendant when she told him during the intercept, at the
detective's behest, that she had an STD. Moreover, as the Perry Court observed,
questioning a sexual assault victim about sexual-conduct evidence contravenes
the Legislature's intent in enacting the rape Shield Law – to protecting a sexual
assault victim's privacy. 10 See Perry, 225 N.J at 244-46. Allowing the cross-
9
Although the trial court found that the evidence was relevant, the basis for the
court's finding is not clear. We gather from the colloquy during the hearing on
this matter that the relevance found pertained to the victim's credibility. The
State did not file a cross-appeal so we leave that ruling undisturbed.
10
The Court cited to several authorities:
See Assemb. Judciary, Law and Pub. Safety Comm.,
Statement to Assemb. Bill No. 677, at 1 (Jan. 20, 1994),
as reprinted in N.J.S.A. 2C:12-7 (2013) ("It is in the
public interest to protect the privacy of the victim, as
opposed to allowing the defendant to freely examine the
victim's past when the examination serves no material
or relevant evidentiary or constitutional purpose."); see
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24
examination would have left the jury to speculate about the source of the STD,
and would have called into question A.E.'s sexual activities with others – an
unwarranted privacy invasion, especially considering the lack of clear proof that
she had an STD and the dubious value of that evidence to the defense. The court
properly proscribed defendant's cross-examination of A.E. regarding her
statement during the waiver hearing.
In Point IV, defendant argues the trial court's jury instruction regarding
the physical force or coercion portion of aggravated sexual assault as charged in
count one of the indictment; and the court's failure to add an instruction
regarding the mental incapacity of the victim when it charged the jury on
aggravated sexual assault as alleged in count two. Defendant states in his merits
also J.A.C., 210 N.J. at 297 ("It is clear from this series
of amendments progressively strengthening N.J.S.A.
2C:14-7, that the Legislature's policy is to direct the
focus of sexual assault trials toward the alleged crime,
and away from the lifestyle of the victim."); see also
Garron, 177 N.J. at 165 ("The [Rape] Shield [Law] is
intended to deter the unwarranted and unscrupulous
foraging for character-assassination information about
the victim. The Statute does not permit introduction of
evidence of the victim's past sexual conduct to cast the
victim as promiscuous or of low moral character.").
[Perry, 225 N.J at 244-46.]
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25
brief that he requested the trial court to charge "the jury with the mentally
incapacitated definition" and withdrew the request "after the [c]ourt indicated
its unwillingness to honor said request because it did not see how it would assist
defendant and the State had not charged mentally incapacitated in the
indictment." He does not, however, cite to any portion of the record that
establishes his request, the court's declination or his withdrawal. See Spinks v.
Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008) (imposing a duty
on parties to refer to "specific parts of the record to support their argument" so
this court did not have to scour the record to find same (citing State v. Hild, 148
N.J. Super. 294, 296 (App. Div. 1977))). Indeed, at the charge conference on
November 3, 2016 defense counsel said she had no objection to the model jury
instructions for both counts.
Inasmuch as defendant did not comply with Rule 1:7-2,11 our review is
plain error. R. 2:10-2. "A claim of deficiency in a jury charge to which no
11
The Rule provides:
For the purpose of reserving questions for review or
appeal relating to rulings or orders of the court or
instructions to the jury, a party, at the time the ruling or
order is made or sought, shall make known to the court
specifically the action which the party desires the court
to take or the party's objection to the action taken and
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26
objection is interposed 'will not be considered unless it qualifies as plain error
. . . .'" State v. R.B., 183 N.J. 308, 321 (2005) (quoting State v. Hock, 54 N.J.
526, 538 (1969)). In this context, "plain error requires demonstration of '[l]egal
impropriety . . . prejudicially affecting the substantial rights of the defendant
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting
Jordan, 147 N.J. at 422). Defendant's failure to pose an objection to the jury
instructions "constitutes strong evidence that the error belatedly raised . . . was
actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div.
1999).
Defendant argues that the instruction – which included the phrase, "[y]ou
should not speculate as to what the alleged victim thought or desired, or why
the grounds therefor. Except as otherwise provided by
[Rule] 1:7-5 and [Rule] 2:10-2 (plain error), no party
may urge as error any portion of the charge to the jury
or omissions therefrom unless objections are made
thereto before the jury retires to consider its verdict, but
opportunity shall be given to make the objection in
open court, in the absence of the jury. A party shall only
be prejudiced by the absence of an objection if there
was an opportunity to object to a ruling, order or
charge.
A-2683-16T2
27
she did not resist or protest," – "unfairly led the jury to believe that it could not
consider evidence that [A.E.] affirmatively said yes in consenting to sexual
activity with defendant." We decline to simply consider the abbreviated portion
of the charge set forth in defendant's merits brief. Our Supreme Court "has
repeatedly held that portions of a charge alleged to be erroneous cannot be dealt
with in isolation but the charge should be examined as a whole to determine its
overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "The test is to
examine the charge in its entirety, to ascertain whether it is either ambiguous
and misleading or fairly sets forth the controlling legal principles relevant to the
facts of the case." State v. Labrutto, 114 N.J. 187, 204 (1989).
When instructing the jury on the first count, the trial court did not deviate
from the model charge. That charge, particularly the portion omitted from
defendant's merits brief, instructed the jury on how a victim may express consent
to a sexual act. The jury was not precluded from considering whether the victim
consented to sexual penetration by defendant; in fact, it was instructed to
consider whether she consented. The charge on the first count accurately set
forth the law that was applicable to the facts of this case.
A-2683-16T2
28
Whether defense counsel made or withdrew a request for the judge to add
the definition of "mentally incapacitated," there was no rational basis to include
that instruction. The applicable statute, N.J.S.A. 2C:14-2(a)(7), provides:
An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person . . . whom
the actor knew or should have known was
physically helpless . . . or mentally
incapacitated, or had a mental disease or
defect which rendered the victim
temporarily or permanently incapable of
understanding the nature of his conduct,
including, but not limited to, being
incapable of providing consent.
The indictment alleged only that defendant sexually penetrated the victim
who he knew or should have known was physically helpless. The proofs of
A.E.'s voluntary consumption of alcohol and her intoxicated state were offered
to prove that she met the definition of physically helpless: a "condition in which
a person is unconscious or is physically unable to flee or is physically unable to
communicate unwillingness to act." N.J.S.A. 2C:14-1(g). It would have been
inappropriate for defendant to face an aggravated sexual assault charge alleging
he penetrated a victim who he knew or should have known was mentally
incapacitated in that the State offered no proof that A.E. met that definition:
"Mentally incapacitated" means that condition in which
a person is rendered temporarily incapable of
A-2683-16T2
29
understanding or controlling his conduct due to the
influence of a narcotic, anesthetic, intoxicant, or other
substance administered to that person without his prior
knowledge or consent, or due to any other act
committed upon that person which rendered that person
incapable of appraising or controlling his conduct.
[N.J.S.A. 2C:14-1(i).]
There was no evidence that A.E. ingested any substance without her knowledge
or consent, or under any situation of which she did not have knowledge and
control. Even if requested by defendant, a jury instruction on that element, of
which there was no proof, would have been improper and confusing to the jury.
Defendant argues the trial court erred in denying his motion for a new trial
which was based on the State's failure to preserve text messages between A.E.
and defendant on the day of the consensual intercept and its failure to provide
defendant with discovery of text messages it did record.
A.E. made two consensual-intercept calls to defendant. When A.E.
attempted to elicit from defendant what occurred during the assault, he told her
that he would prefer to text her because he was in a car with other people and
did not "want to put all [her] business out" by talking in front of them. After the
two exchanged texts, a second call was completed. Although both calls were
recorded and turned over to defense counsel, photographs taken by police of text
A-2683-16T2
30
messages sent by defendant between the first and second calls were not. The
photographed texts read:
"we trained you"
"um but you ain't like tyrec you was off me and dequan"
"me tyrec dequan"
"I though you was up honestly bcuz you was talking 2
me but idk they ain't think you was passed out either
tho I think"
"Nah I ain't do that maybe dequan or tyrec did"
"what's sup"
Defendant claims the Morristown Police Department and Morris County
Prosecutor's Office copied text messages from A.E.'s phone and "purposely and
inexplicably selected only portions of the text messages to preserve as evidence .
The missing unrecorded text messages by defendant may have contained
potentially exculpatory statements," and the State's bad-faith failure to preserve
that evidence violated his due process rights, citing Illinois v. Fisher, 540 U.S.
544 (2004) (per curiam) and Arizona v. Youngblood, 488 U.S. 1 (1988) (per
curiam).12
12
In Fisher, the United States Supreme Court held that the failure to preserve
potentially useful evidence – as opposed to exculpatory evidence – which might
A-2683-16T2
31
Defendant also contends the State's failure to provide the recorded text
messages in discovery was a Brady violation,13 inasmuch as defendant's text –
in which he told A.E. he "thought [she] was up honestly bcuz [she] was talking
2 [him,]" and that he did not think she was passed out – could have been used to
buttress his trial testimony on direct examination after the assistant prosecutor
cross-examined him on portions of his intercepted statement in which he
ostensibly admitted he thought A.E. was passed out.
A motion for a new trial is addressed to the sound discretion of the trial
court, and we do not lightly interfere with the exercise of that discretion. State
v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). We will not reverse the
decision "unless it clearly appears that there was a miscarriage of justice under
the law." State v. Afanador, 134 N.J. 162, 178 (1993) (quoting R. 2:10-1).
First addressing the texts defendant alleges were not preserved, the record
does not support that they were potentially useful or exculpatory. Indeed, there
is no proof of the contents of any non-preserved texts. Defendant contends only
exonerate a defendant does not violate due process unless the defendant "can
show bad faith on the part of the police." Fisher, 540 U.S. 547-48 (emphasis
omitted) (quoting Youngblood, 488 U.S. at 58).
13
Brady v. Maryland, 373 U.S. 83 (1963) (holding the prosecution's suppression
of material, exculpatory evidence violates a defendant's due process rights).
A-2683-16T2
32
that the "missing unrecorded text messages by defendant may have contained
potentially exculpatory statements." (emphasis added). Further, defendant
posits only that the State's failure to preserve all of defendant's texts deprived
him of the opportunity to "enhanc[e] and rehabilitat[e] his credibility," which he
says was sullied by his use of "obscenities and detailed graphic sexually charged
language" during the second intercepted call, in contrast to his "clean, concise
and unequivocal" language in the text responses the police did record. He
continues, "it can easily be inferred" A.E. or the police "implored him via text
to tell them everything that occurred in graphic detail without regard for
niceties," and that the police prompted his use of the language used during the
second call. By failing to preserve all of the text messages, he argues, "the State
deprived defendant of the fair chance to present a complete and meaningful
defense thereby, unfairly slanting the case in their favor in violation of
defendant's constitutional rights."
First, defendant offers no proof from which an inference can be drawn that
the language he used in the intercept was not his. His argument that the
unpreserved texts were free from salacious language is based on a bald assertion.
Further, defendant could have made his point using the six texts that were
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33
provided, although the significance of such a ploy is of dubious materiality to
his defense.
Nor has defendant met his burden of proving the State failed in bad faith
to preserve the texts. See State v. Mustaro, 411 N.J. Super. 91, 103 (App. Div.
2009) (holding if a defendant can show only that lost evidence was potentially
useful or exculpatory, a due process violation can be shown by "establishing that
the evidence was destroyed in bad faith"). Defendant argues there was "no
plausible reason why law enforcement preserved some, but neglected to preserve
other portions of defendant's text messages other than that it sought to deprive
defendant of their exculpatory value." Defendant neither offers nor points to
any evidence that establishes a bad faith reason why the police photographed
only six text messages. The detective who photographed those texts did not
memorialize his actions in a report. The messages were not used by the State;
the assistant prosecutor denied knowledge of them. Moreover, defendant had
knowledge of the contents of the texts he sent and received. As the trial court
found, defendant was "best equipped to indicate what they contained" and
defendant did not submit a certification regarding the contents of the
unpreserved texts.
A-2683-16T2
34
Turning next to the State's failure to turn over the six texts, we recognize
the Due Process Clause obligates prosecutors to disclose evidence favorable to
the defense of which they have actual or constructive knowledge. State v.
Nelson, 155 N.J. 487, 498 (1998) (citing Calley v. Callaway, 519 F.2d 184, 223
(5th Cir.1975)). The obligation extends to evidence relevant to guilt or to
punishment, Brady, 373 U.S. at 87, and to evidence that can be used to impeach
the State's witnesses, United States v. Bagley, 473 U.S. 667, 676 (1985); see
also State v. Knight, 145 N.J. 233, 245-46 (1996) (discussing both types of
evidence). Where such evidence is withheld, a defendant is entitled to relief "if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." State v.
Marshall, 148 N.J. 89, 156 (1997) (quoting Knight, 145 N.J. at 246). "A
'reasonable probability' is one that is 'sufficient to undermine confidence in the
outcome.'" State v. Martini, 160 N.J. 248, 269 (1999) (quoting Bagley, 473 U.S.
at 682). It is not necessary for the defendant to prove that the trial prosecutor
acted in bad faith. Brady, 373 U.S. at 87. Even when that prosecutor is ignorant
of the facts, if they are known to the police, then knowledge is imputed to the
prosecutor. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); see also Nelson,
155 N.J. at 498 (holding the Brady discovery rule applies to information of
A-2683-16T2
35
which the State is actually or constructively aware, and agreeing with the
Whitley Court's ruling that "[t]he individual prosecutor has a duty to learn of
any favorable evidence known to others acting on the government's behalf,
including the police" (quoting Whitley, 514 U.S. at 437)).
Notwithstanding that the assistant prosecutor may not have been aware
that the photographs of the six texts were in the State's file, they were. They
should have been turned over with the other discovery to defendant's criminal -
trial counsel. But we again recognize that defendant had knowledge of his own
texts and could have supplied that information, or at least disclosed their
existence, to his trial counsel.
We agree, nonetheless, with the trial court that disclosure and admission
of the texts would not have impacted the trial result. The trial court found the
evidence cumulative. Defendant's text about his belief that the victim was not
passed out echoed defendant's trial testimony and defense that A.E. consented
and was not physically helpless. Even if defendant established that the text was
admissible as a prior consistent statement used to rebut the assistant prosecutor's
charge of recent fabrication, see Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 3 on N.J.R.E. 607 (2018), defendant has not met his burden
of showing a reasonable probability that that single text would have changed the
A-2683-16T2
36
trial result, Mustaro, 411 N.J. Super. at 101. We also note that the judge gave
an adverse inference charge regarding the State's failure to preserve the text.
We determine defendant's argument that, but for the Brady violation, he
would not have testified to be without sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(2). He offers no legal basis to justify admission of
the text if he did not testify.
In denying defendant's new trial motion, the trial court applied the
prescriptions of Rule 3:20-1 which provides in part:
The trial judge on defendant's motion may grant the
defendant a new trial if required in the interest of
justice. . . . The trial judge shall not . . . set aside the
verdict of the jury as against the weight of the evidence
unless, having given due regard to the opportunity of
the jury to pass upon the credibility of the witnesses, it
clearly and convincingly appears that there was a
manifest denial of justice under the law.
We see no reason to disturb that ruling.
We see no merit in defendant's argument that a new trial was required
because the verdict was against the weight of the evidence. An appellate court
will not reverse the trial court's ruling on whether a jury verdict was against the
weight of the evidence "unless it clearly appears that there was a miscarriage of
justice under the law." R. 2:10-1; Afanador, 134 N.J. at 178. We will not disturb
a jury verdict "[u]nless no reasonable jury could have reached [that] verdict
A-2683-16T2
37
. . . ." Afanador, 134 N.J. at 178; see also State v. Jackson, 211 N.J. 394, 413-
14 (2012) (noting that if "any trier of fact could rationally have found beyond a
reasonable doubt that the essential elements of the crime were present[,]" there
is no "miscarriage of justice" (quoting Afanador, 134 N.J. at 178)). The jury's
verdict on all counts could have rested on A.E.'s testimony alone if they fou nd
her credible.
Affirmed.
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38