STATE OF NEW JERSEY VS. K.M.B. (11-01-0072, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-1318-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
K.M.B.,
Defendant-Appellant.
__________________________
Submitted January 21, 2020 – Decided April 23, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 11-01-0072.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals his September 30, 2016 convictions and sentences for
first-degree aggravated sexual assault through the digital penetration of a child
less than thirteen years old, N.J.S.A. 2C:14-2(a)(1), and third-degree
endangering the welfare of a child through sexual conduct impairing or
debauching the morals of the child, N.J.S.A. 2C:24-4(a). For the aggravated
sexual assault conviction he was sentenced to a sixteen-year prison term subject
to an eighty-five percent parole disqualifier under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, to run concurrently with a four-year prison term
for endangering the welfare of a child.
For the reasons that follow, we affirm the convictions. However, as the
State concedes, we remand for correction of a fourth amended judgment of
conviction (JOC) to reflect defendant's sixteen-year aggravated sexual assault
sentence is not subject to NERA, which was not in effect at the time the offense
was committed, but rather it is subject to an eight-year parole disqualifier.
I.
First Trial
Defendant was indicted on January 13, 2011 for first-degree aggravated
sexual assault and second-degree endangering the welfare of a child through
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sexual conduct impairing or debauching the morals of the child by someone with
a legal duty of care or assumed responsibility of care, N.J.S.A. 2C:24-4(a). The
latter charge was amended to third-degree endangering the welfare of a child
through sexual conduct impairing or debauching the morals of the child. The
victim, Katie,1 is the daughter of defendant's former girlfriend.
In 2011, a jury found defendant guilty of the charges and he was sentenced
to an aggregate prison term of sixteen years with an eight-year period of parole
ineligibility. We reversed his convictions on direct appeal because the trial court
denied defendant's constitutional right to represent himself and remanded the
matter for further proceedings. State v. K.M.B., No. A-5387-11 (App. Div. Dec.
17, 2014) (slip op. at 9-10).
Second Trial and Pretrial Proceedings
On September 28, 2105, following remand, defendant indicated to a
different trial court that he wished to be represented by the Office of the Public
Defender (OPD). An attorney ("OPD counsel") from the OPD was assigned to
1
We use pseudonyms to protect the privacy of the child victim and members of
the family. R. 1:38-3(c)(9).
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represent him.2 However, in the midst of pretrial matters, defendant changed
his mind on October 27, saying he wanted to represent himself. Yet, the next
day, he retracted his request to represent himself, advising the court he wanted
to be represented by OPD counsel.
A week later on November 5, during pretrial motions' argument, the
"merry-go-round" continued; defendant changed his mind again, informing the
court he wanted to represent himself. After the court extensively voir dired
defendant, including an explanation of the charges and the potential sentences
if convicted, OPD counsel was relieved and ordered to be stand-by counsel for
defendant.
Prior to commencement of another pretrial hearing two weeks later,
defendant wanted OPD counsel removed as stand-by counsel. Defendant stated
he did "not feel comfortable with [OPD counsel] as his assistant" because OPD
counsel told him there would be "[twelve] white ladies from Woodcliff Lakes"
as jurors and he would be found guilty. The court responded by detailing all the
equivocal statements defendant made about representing himself, and then
ordered OPD counsel to continue serving as stand-by counsel. After defendant
2
In fact, two attorneys from the OPD were assigned to represent defendant.
Because it appears one attorney was considered the lead counsel, for ease of
reference, we refer to them collectively in the singular.
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again complained about OPD counsel and the OPD generally to justify his
demand to proceed without a stand-by counsel, the court rejected his request,
declaring:
I think you understand or at least have a grasp how – of
your strategy and how you want to try this case. So,
I'm not concerned about your capacity to try this case
on your own with assistance from a public defender.
So, I'm not going to excuse the stand-by counsel
because I think that would be critical and would be
prejudicial to your case.
[]I've observed[;] you have used [OPD counsel]
repeatedly for legal questions. you have turned to him
for legal advice . . . but there are certain legal issues
that you have to understand and I'm going to protect the
process and this trial.
The court reminded defendant the role of stand-by counsel was to advise on
things like how to admit items into evidence but was not to help him strategize
or conduct examinations of witnesses.
On December 8, the first day of trial, the confusion produced by defendant
continued. In the morning, the court declined defendant's request that OPD
counsel be replaced with his "jailhouse lawyers," two fellow inmates, to act as
stand-by counsel. But by the end of the day, OPD counsel informed the court
defendant was having doubts about representing himself, which defendant
confirmed.
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The next day, defendant gave several reasons for not wanting to represent
himself and sought a postponement of the trial. The State objected, arguing
defendant was lying and attempting to manipulate the system, which he had been
doing throughout the prosecution of his charges. Finding both defendant's
representations lacking credibility and the need to protect the integrity of the
proceedings, the court denied defendant's requests.
Defendant, however, eventually got the postponement he wanted when the
court declared a mistrial due to juror misconduct because a juror advised other
jurors she knew a witness from middle school.
Proceeding with an abundance of caution in scheduling a new trial date,
the court asked defendant if he wanted to represent himself. Defendant replied
he wanted OPD counsel to represent him; OPD counsel agreed to do so.
Third Trial and Pretrial Proceedings
Three months later on March 2, 2016, when the new trial was set to
commence, defendant again wanted OPD counsel relieved as his counsel. OPD
counsel was accused of not keeping defendant informed, which OPD counsel
denied. The court rejected the request, viewing it as another delay tactic by
defendant.
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Undeterred, defendant disrupted jury selection when he stood up and
stated in front of the jury panel that he had fired his attorney while pointing to
OPD counsel. The jury panel had to be dismissed. The court strongly
admonished defendant of the possibility of being held in contempt if he
continued to intentionally disrupt the proceedings.
Fourth Trial and Pretrial Proceedings
On March 15, the court questioned defendant about a letter he wrote to
the court alleging OPD counsel harassed and assaulted him on about February
23 or 24, and his renewed request to represent himself. In response to the letter,
OPD counsel and the OPD moved to be completely relieved from defendant's
case. Among the many cited reasons in a responsive letter brief to the court, the
OPD claimed it could no longer represent defendant due to his continued pattern
of pervasive false accusations, refusal to cooperate, and his "abusive,"
"manipulative," and "antagonistic" conduct towards OPD counsel which
"appear[ed] to be part of a larger strategy to – resolution in this case."
Defendant, according to the OPD, thereby forfeited his right to counsel.
After questioning defendant about waiver of his right to counsel, the court
allowed him to represent himself once again. When the court denied him the
right to demand who would serve as his stand-by counsel, defendant stated he
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would proceed without stand-by counsel. At no point, did he ask for the
opportunity to hire private counsel. The court ordered OPD counsel relieved
from representing defendant, who had forfeited his right to counsel at public
expense based upon his conduct. United States v. McLeod, 53 F.3d 322, 325
(11th Cir. 1995). Defendant mentioned he needed the help of an OPD
investigator "to look . . . [for] records," but when the court noted the trial was
about to start, he accepted the fact that none could be provided and stated, "I'm
ready to go to trial."
The State presented the testimony of Katie; Demi, Katie's mother and
defendant's ex-girlfriend and mother of his daughter, Anna; Sergeant Tara
Jennings of the Bergen County Prosecutor's Office who investigated Katie's
allegations; and the State's expert Dr. Anthony D'Urso, a licensed clinical
psychologist.
Katie, twenty-three years old when she testified, stated she was sexually
abused by defendant after she, her mother, and her baby sister had moved to
Teaneck from Maryland in May 2001. She was nine years old when defendant,
who was briefly staying at the house after helping them move, called her from
her second-floor bedroom into the hallway. She recalled two occasions when
defendant kissed her using his tongue inside her mouth while lying on top of her
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as she laid on the hallway floor. On another occasion, she claimed defendant
moved her underwear down her legs, and while kissing her, inserted his fingers
into her vagina. Testifying she was in shock; she did not scream or yell for help.
At the time the assaults occurred, her grandmother, who operated a child day
care on the first floor, was either inside the house or outside with the children
she cared for.
Katie did not report the assaults until she was a high school sophomore.
When asked by the prosecutor why she did not tell her mother about the incidents
right after they happened, Katie responded, "[a]side from the fact that
[defendant] told me not to tell anyone, I was scared to tell anyone because I just
didn't know, like, what was going to happen after that." She did not remember
how it had made her feel during or right after the insertion, but recalled as she
got older, it made her feel "disgusting." She eventually told her mother because
she was:
having issues with a relationship I was in, in high
school. It was my first boyfriend. And things just
seemed to be going completely wrong. And I felt like
a part of the reason was because of me. And what
happened to me. And because I didn't know how to deal
with what happened to me. And I felt like I was just
kind of ruining everything.
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Demi testified that after her family moved to her parents' house in
Teaneck in the spring of 2001, defendant stayed with them for about three
weeks. During the first two weeks, Katie was out of school waiting for her
Maryland school records to arrive so she could be enrolled. She was watched
during the day by her grandmother, while Demi was attending a program to
become eligible for social services. Demi recalled it was not until February
2009, when an extremely sad Katie told her that defendant had "molested her,"
but she gave no details.
Demi did not report Katie's allegations until a few days later because she
had to "find out what process I should go through because of things that
happened in another state." Because this was a reference to defendant's
conviction in Maryland for sexually assaulting Katie there, a side bar occurred.
Ultimately, the court and defendant decided to withdraw the question and strike
the testimony. On defendant's cross-examination, Demi admitted she had no
idea Katie was abused in Teaneck.
The State's next witness, Jennings, testified regarding her approximately
hour-long interview with Katie in March 2009. She also discussed her
interviewed with Demi. Jennings also disclosed her inspection of the house
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where Katie claimed the sexual abuse occurred. Her description of the house
and its layout matched the description Kate gave to the jury.
Dr. D'Urso testified regarding Child Sexual Abuse Accommodation
Syndrome (CSAAS). Explaining the history of CSAAS after child sex abuse
became criminalized in the 1980s, the doctor stated it was intended to be:
[E]ducation for the court, for the jury to see as a
backdrop of information. It's not for diagnosis reasons.
It's not for proof. It's not something where you could
say if there are five elements of this and the child has
four of them there's a probability -- not meant for any
of that. It's simply meant to help juries, triers of fact,
to understand the dynamics of child sexual abuse to be
applied in the way that you might apply them.
He then gave a detailed description of the five elements: secrecy, helplessness,
entrapment, delayed disclosure, and retraction. In doing so, he asserted it was
common for child victims of sex abuse to engage in secrecy and thus delay
disclosing their abuse. Dr. D'Urso, who never met Katie, could not opine that
she was in fact abused. In fact, the court sustained the State's objections to
defendant's pointed cross-examination seeking Dr. D'Urso to state whether Katie
was abused by him.
In admitting the CSAAS testimony, the court issued the standard model
jury instruction about expert witness testimony in addition to giving a special
instruction cautioning about CSAAS testimony based on the Model Jury
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Charges (Criminal), "Child Sexual Abuse Accommodation Syndrome" (rev.
May 16, 2011). The court also instructed:
The law recognizes that stereotypes about sexual
assault complaints may lead some of you to question
[Katie]'s credibility based solely on the fact that she did
not complain about the alleged abuse earlier. You may
or may not conclude that her testimony is untruthful
based only on her delayed disclosure. You may
consider the delayed disclosure along with all other
evidence including [Katie]'s explanation for her
delayed disclosure in deciding how much weight, if
any, to afford her testimony. You may also consider
the expert testimony that explained that delay is one of
the many ways in which a child may respond to sexual
abuse.
[Y]our deliberations in this regard should be informed
by the testimony presented concerning [CSAAS].
You may recall evidence that [Katie] failed to disclose,
or acted or failed to act in a way addressed by
[CSAAS]. In this respect, Dr. D'Urso testified on
behalf of the State, and is qualified as an expert as to
[CSAAS]. You may only consider the testimony of this
expert for a limited purpose. . . .
You may not consider Dr. D'Urso's testimony as
offering proof that child sexual abuse occurred in this
case. [CSAAS] is not a diagnostic device and cannot
determine whether or not abuse occurred. It relates only
to a pattern of behavior of the victim which may be
present in some child sexual abuse cases.
You may not consider expert testimony about [CSAAS]
as proving whether abuse occurred or did not occur.
Similarly, you may not consider that testimony as
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proving, in and of itself, that Katie, the alleged victim
here, was or was not truthful.
Dr. D'Urso's testimony may be considered as
explaining certain behavior of the alleged victim of
child sexual abuse . . . . if proven, may help explain why
a sexually abused child may delay reporting sexual
abuse.
To illustrate, in a burglary or theft case involving an
adult property owner, if the owner did not report the
crime for several years, your common sense might tell
you that the delay reflected a lack of truthfulness on the
part of the owner. In that case, no expert would be
offered to explain the conduct of the victim, because
that conduct is within the common experience and
knowledge of most jurors.
Here, Dr. D'Urso testified that, in child sexual abuse
matters, children respond differently than do adult
victims. This testimony was admitted only to explain
that the behavior of the alleged victim was not
necessarily inconsistent with sexual abuse.
The weight to be given to Dr. D'Urso's testimony is
entirely up to you. You may give it great weight or
slight weight, or any weight in between, or you may, in
your discretion, reject it entirely.
You may not consider the expert testimony as in any
way proving that defendant committed, or did not
commit, any particular act of abuse. Testimony as to
[CSAAS] is offered only to explain certain behavior of
an alleged victim of child sexual abuse.
As mentioned, the jury found defendant guilty of both charges. The court
denied his motion to set aside the verdict. Defendant was subsequently
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sentenced to a sixteen-year prison term subject to an eight-year parole
disqualifier, concurrent to a four-year prison term. However, as noted, a fourth
amended JOC mistakenly provided the sixteen-year term was subject to NERA.
Defendant's sentences were consecutive to his Maryland sentence for sexually
abusing Katie.
In his appeal, defendant agues:
POINT I
THE JURY'S EXPOSURE TO UNRELIABLE
EXPERT TESTIMONY REGARDING [CSAAS],
COUPLED WITH PREJUDICIAL JURY
INSTRUCTIONS REGARDING SUCH
TESTIMONY, REQUIRES REVERSAL. (NOT
RAISED BELOW).
A. As Determined Pursuant to the Supreme
Court's State v. J.L.G.[3] Remand Order,
Evidence Concerning Child Sexual Assault
Accommodation Syndrome Fails the Reliability
Requirement Under N.J.R.E. 702.
B. The Court Improperly Bolstered the CSAAS
Testimony By Issuing Both the CSAAS Model
Jury Charge and the Expert Jury Charge.
C. The Cumulative Impact of These Errors
Warrant[] Reversal of [Defendant's]
Convictions.
3
State v. J.L.G., 234 N.J. 265 (2018).
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POINT II
[DEFENDANT] DID NOT KNOWINGLY WAIVE
HIS RIGHT TO COUNSEL. MOREOVER, THE
COURT'S FAILURE TO APPOINT STAND[-]BY
COUNSEL WAS FUNDAMENTALLY
ERRONEOUS.
A. [Defendant] Did Not Knowingly and
Intelligently Waive His Right to Counsel, Given
that the Court Failed to Advise Him of the
Elements of the Charged Offenses and Possible
Defenses.
B. When [Defendant] Claimed His Attorney
Physically Assaulted Him, the Court Should
Have Ruled that attorney was Conflicted Out of
the Case, Rather than Ruling It Was Grounds for
[Defendant] to Represent Himself.
C. The Court Should Have Appointed Stand[-]by
Counsel.
POINT III
GIVEN THAT THE ENDANGERING THE
WELFARE INSTRUCTION ENCOMPASSED BOTH
DIGITAL PENETRATION AND KISSING ON THE
MOUTH, AND THE JURY WAS NEVER ISSUED A
UNANIMITY CHARGE OR A SPECIAL
INTERROGATORY, THE CONVICTION ON THAT
COUNT IS FATALLY FLAWED, AND MUST BE
REVERSED. (NOT RAISED BELOW).
POINT IV
DURING ITS PRELIMINARY INSTRUCTIONS,
THE COURT ERRONEOUSLY CHARGED THE
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JURY ON REASONABLE DOUBT. (NOT RAISED
BELOW).
POINT V
THE CASE SHOULD BE REMANDED FOR
RESENTENCING, BECAUSE THE SENTENCE IS
MANIFESTLY EXCESSIVE AND UNDULY
PUNITIVE.
A. The 85% Parole Ineligibility Period Must Be
Removed From the Sentence, Because the
Charged Offenses Occurred Before the 'New
NERA' Statute Went into Effect.
B. The Court Ascribed Undue Weight to
Aggravating Factor Three Based on
[Defendant]'s Classification as Repetitive and
Compulsive, Given that He Will Likely Undergo
Rehabilitative Treatment and Will Be Supervised
Upon Release.
C. [Defendant] Is Entitled to Over Two Years of
Prior Service Credit.
Defendant's reply brief argues:
POINT I
WITHOUT CONDUCTING AN ADEQUATE VOIR
DIRE, KNOWLEDGE AND UNDERSTANDING OF
THE ESSENTIAL ELEMENTS AND DEFENSES OF
THE CHARGES CANNOT BE IMPUTED TO A PRO
SE DEFENDANT. THE STATE'S ASSERTION
OTHERWISE IS WITHOUT MERIT.
Defendant filed a supplemental letter brief, presenting the following point:
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STATE V. J.L.G. APPLIES RETROACTIVELY TO
THIS CASE, AND THE IMPROPER ADMISSION OF
EXPERT TESTIMONY ON [CSAAS] REQUIRES
REVERSAL OF DEFENDANT'S CONVICTIONS.
A. J.L.G. Announced A New Rule of Law: Expert
Testimony About CSAAS Is Inadmissible. That
New Rule Should Be Accorded Complete
Retroactivity, Or at The Very Least, Pipeline
Retroactivity. When That New Rule Is Applied to
This Case, It Necessitates Reversal of
Defendant's Convictions.
i. Because the new rule rectifies a problem
in the law that substantially impaired the
jury's truth-finding function, it must be
given full retroactive effect. In the
alternative, pipeline retroactivity is
required.
ii. The improper admission of CSAAS
expert testimony in this case was harmful
error.
II.
A.
We begin by addressing defendant's contention the trial court erred by
allowing Dr. D'Urso to provide CSAAS testimony in light of J.L.G.'s holding
that the testimony is not sufficiently reliable expert testimony, and his claim the
trial court improperly bolstered the testimony by charging the jury on both
CSAAS and expert witness testimony. Because no objection was made at trial,
we review the issue for plain error.
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Under the plain error standard, we disregard any error or omission by the
trial court "unless it is of such a nature as to have been clearly capable of
producing an unjust result . . . ." R. 2:10-2; see also State v. Santamaria, 236
N.J. 390, 404 (2019). "To warrant reversal[,] . . . an error at trial must be
sufficient to raise 'a reasonable doubt . . . as to whether the error led the jury to
a result it otherwise might not have reached.'" State v. Funderburg, 225 N.J. 66,
79 (2016) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
During the pendency of this appeal, our Supreme Court issued its opinion
in J.L.G., where it partially overturned its holding in State v. J.Q., 130 N.J. 554(1993). The Court held:
Based on what is known today, it is no longer possible
to conclude that CSAAS has a sufficiently reliable basis
in science to be the subject of expert testimony. We
find continued scientific support for only one aspect of
the theory — delayed disclosure — because scientists
generally accept that a significant percentage of
children delay reporting sexual abuse.
We therefore hold that expert testimony about CSAAS
in general, and its component behaviors other than
delayed disclosure, may no longer be admitted at
criminal trials. Evidence about delayed disclosure can
be presented if it satisfies all parts of the applicable
evidence rule. In particular, the State must show that
the evidence is beyond the understanding of the average
juror.
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[J.L.G., 234 N.J. at 272 (citing N.J.R.E. 702) (emphasis
added).]
The Court recognized the limited admissibility of CSAAS expert
testimony "will turn on the facts of each case." 234 N.J. at 272. Thus, when a
victim gives "straightforward reasons about why [he or] she delayed reporting
abuse, the jury [does] not need help from an expert to evaluate [his or] her
explanation. However, if a child cannot offer a rational explanation, expert
testimony may help the jury understand the witness's behavior." Ibid. Although
J.L.G. permits expert testimony about delayed disclosure or causes for delayed
disclosure; "[t]he testimony should not stray from explaining that delayed
disclosure commonly occurs among victims of child sexual abuse, and offering
a basis for that conclusion." Id. at 303. For example, we subsequently found it
improper for a CSAAS expert to testify that the five CSAAS categories of
behavior "may be behaviors exhibited by a truthful child sex abuse victim."
State v. G.E.P., 458 N.J. Super. 436, 450-51 (App. Div. 2019). Admissibility of
CSAAS expert testimony, nevertheless, may be harmless "in light of the
overwhelming evidence of [a] defendant's guilt." J.L.G., 234 N.J. at 306.
Because the J.L.G. Court did not opine with respect to whether its holding
applied retroactively, we directly addressed the issue in G.E.P. We held the
J.L.G. holding "should be given at least pipeline retroactivity," rendering it
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applicable to all cases in which the parties have not exhausted all avenues of
direct review when the Court issued its opinion in J.L.G. G.E.P. 458 N.J. Super.
at 448. Since this is the situation here, J.L.G. applies to defendant's appeal.
Guided by the principles of J.L.G., we conclude there was no plain error
in the admission of Dr. D'Urso's CSAAS testimony. The court's jury instructions
on expert testimony, along with the special CSAAS jury instructions that Dr.
D'Urso did not know anything about the specific facts and circumstances of
Katie's allegations, mitigated the negative impact his testimony may have had
on the jury. We find no merit to defendant's contention the issuance of both the
expert testimony and CSAAS testimony jury charges impermissibly created an
impression that Dr. D'Urso rendered an opinion that Katie's allegations were
credible.
Clearly, the jury had to resolve the credibility of Katie's approximately
six-year delay in reporting defendant's assault. Even though a child sex-abuse
victim's delayed response was an element of Dr. D'Urso's CSAAS testimony, he
did not opine – and the jury was directed not to imply from his testimony – that
Katie's delayed disclosure proved she was assaulted by defendant. The jury had
the benefit of evaluating Katie's credibility based upon her testimony that as a
nine-year old sex abuse victim, she felt threatened by her abuser and was
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uncertain what might occur if she told someone, in contrast with her more
mature revelation to her mother as a teenager concerning the sexual confusion
she was struggling with in her first boyfriend relationship, which she harkened
to the disgusting experience of defendant's abuse. Based upon our review of the
record, there was no questioning or evidence undermining Katie's testimony.
The jury had to accept or reject her testimony at face value. Considering her
testimony coupled with the court's expert and CSAAS jury instructions, we
cannot conclude Dr. D'Urso's CSAAS testimony produced the unjust result of a
guilty verdict.
B.
Defendant contends reversible error occurred because he did not
knowingly waive his right to counsel because the court: (1) was deficient in
inquiring if defendant knowingly and intelligently waived away his right to
counsel; (2) omitted options for defendant's representation by private counsel
following his claim of assault by OPD counsel; and (3) failed to appoint stand-
by counsel. Contrary to our prior conclusion in K.M.B. that a remand was in
order because defendant's constitutional right to represent himself was denied,
we find no merit to any of these contentions related to his subsequent self-
representation.
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At the risk of being repetitive from K.M.B., we reiterate defendant's right
to self-representation is well settled. A criminal "[d]efendant possesses both the
right to counsel and the right to proceed to trial without counsel." State v.
DuBois, 189 N.J. 454, 465 (2007). In State v. Crisafi, 128 N.J. 499, 509 (1992),
the Court explained a defendant may "exercise the right to self-representation
only by first knowingly and intelligently waiving the right to counsel."
[W]hen determining whether a waiver of counsel is
knowing and intelligent, trial courts must inform
defendant of: (1) the nature of the charges, statutory
defenses, and possible range of punishment; (2) the
technical problems associated with self-representation
and the risks if the defense is unsuccessful; (3) the
necessity that defendant comply with the rules of
criminal procedure and the rules of evidence; (4) the
fact that lack of knowledge of the law may impair
defendant's ability to defend himself; (5) the impact
that the dual role of counsel and defendant may have;
and (6) the reality that it would be unwise not to accept
the assistance of counsel.
[DuBois, 189 N.J. at 467 (citing Crisafi, 128 N.J. at
511-12).]
In State v. Reddish, 181 N.J. 553 (2004), the Court added additional
requirements to the process, specifically that:
(1) the discussions should be open-ended for
defendants to express their understanding in their own
words; (2) defendants should be informed that if they
proceed pro se, they will be unable to claim they
provided ineffective assistance of counsel; and (3)
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defendants should be advised of the effect that self-
representation may have on the right to remain silent
and the privilege against self-incrimination.
[DuBois,189 N.J. at 468 (citing Reddish, 181 N.J. at
594-95).]
"A defendant's right of self-representation is not absolute, however, and it
cannot be used to jeopardize the State's equally strong interest in ensuring the
fairness of judicial proceedings and the integrity of trial verdicts." State v. King,
210 N.J. 2, 18 (2012) (citing State v. McNeil, 405 N.J. Super. 39, 51 (App. Div.
2009)). "There may be times . . . when the defendant will be required to cede
control of his defense to protect the integrity of the State's interest in fair trials
. . . ." Reddish, 181 N.J. at 587.
When making inquiry, however, the judge's "goal is not to explore a
defendant's familiarity with 'technical legal knowledge[,]' for that is not
required." King, 210 N.J. at 19 (alteration in original) (quoting Reddish, 181
N.J. at 595). "Rather 'the trial court must question [the] defendant to ascertain
whether he actually understands the nature and consequences of his waiver.'"
Ibid. (quoting Reddish, 181 N.J. at 594). Finally, if the appropriate colloquy is
conducted and it is determined the defendant's waiver of counsel is knowing and
voluntary, that choice "must be honored" even if the court feels it is a "poor" or
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"unwise" one. State v. Gallagher, 274 N.J. Super. 285, 296 (App. Div. 1994);
State v. Thomas, 362 N.J. Super. 229, 242-43 (App. Div. 2003).
Based on our review of the record, we are convinced that throughout the
entirety of the numerous proceedings where the court interacted with defendant
following our remand, these principles were followed, and defendant's right to
counsel was not denied. Specifically, the State correctly points to: (1) the
October 27, 2015 voir dire of defendant and his decision to retain OPD counsel;
(2) the November 5, 2015 self-representation request and voir dire; (3)
defendant's complaints about OPD counsel as stand-by counsel; (4) defendant's
request to be relieved of OPD counsel as stand-by counsel November, 18, 2015;
(5) his request to have OPD counsel, as stand-by counsel, step in to represent
him on the second day of trial December 9, 2015; (6) the request for
representation by OPD counsel following the mistrial; (7) defendant's March 2,
2016 accusations that OPD counsel was keeping him in the dark, and his request
to fire OPD counsel was denied; (8) defendant's outburst during the jury voir
dire stating he was firing OPD counsel; (9) defendant's letter accusing OPD
counsel of assaulting him and his subsequent pro se request; (10) defendant's
March 10, 2016 voir dire; and (11) the motion by OPD counsel to be relived as
counsel and the letter from the OPD read into the record.
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While the court never explained to defendant on the record in "colloquial
terms" the language of his indictment to ensure he understood the charges, it is
apparent from the November 5, 2015 voir dire that defendant was fully aware of
the charges against him and that he understood them. In fact, he was astute
enough to correct the court that his first-degree conviction was not subject to
NERA. And even though his summation left a lot to be desired, his argument
that there was no proof of assault was a logical theory given there was no
corroborative evidence of Katie's accusations.
We also find no merit to defendant's claim the court erred in not providing
him stand-by counsel. The appointment of stand-by counsel for a self-
represented defendant is mandatory only in capital cases. Reddish, 181 N.J. at
603-04. Nevertheless, it is "long recognized by our case law" that the courts
should "assign 'stand-by' counsel to aid and advise a pro se litigant." State v.
Slattery, 239 N.J. Super. 534, 549 (1990); see also State v. Sinclair, 49 N.J. 525,
552 (1967). The trial court did not abuse its discretion in not assigning stand-
by counsel to defendant. Defendant had already represented himself with stand-
by counsel during the second trial that ended in a mistrial due to juror
misconduct. After the court granted the motion by OPD counsel to be
discharged and the OPD was relieved as counsel due to defendant's belated
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assault allegations against OPD counsel and defendant's "manipulative" and
"antagonistic" behavior, defendant neither requested stand-by counsel nor the
opportunity to retain private counsel. And considering, defendant was
continually represented by the OPD until the court relived it from representing
defendant, there is no indication in the record that defendant's ability to retain
private counsel was realistic, or just another attempt to avoid a fair and just
adjudication of Katie's accusations. Considering defendant's apparent strategy
to repeatedly abuse the criminal justice system regarding his right to legal
representation, we discern no reason why the court had to sua sponte appoint an
attorney to serve as stand-by counsel or afford him time to retain private counsel.
C.
Defendant raises another plain error contention that the court should have
issued a special unanimity instruction or a verdict sheet requiring the jury to
express a unanimous verdict as to either the open-mouthed kissing or digital
insertion theories because the State proffered to prove the charge of endangering
a minor. We see no unjust result.
To be sure, a jury verdict must be unanimous to convict a defendant of a
crime. State v. Parker, 124 N.J. 628, 633 (1991); see also R. 1:8-9. "[T]he
unanimous jury requirement impresses on the trier of fact the necessity of
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reaching a subjective state of certitude on the facts in issue." Parker, 124 N.J.
at 633 (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).
The consensus of a jury requires "substantial agreement as to just what a
defendant did." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting Gipson, 553
F.2d at 457). In most instances, a general unanimity instruction will suffice
without any special additional instructions. Id. at 597. Such a special
instruction may only be necessary in situations where:
(1) a single crime could be proven by different theories
supported by different evidence, and there is a
reasonable likelihood that all jurors will not
unanimously agree that the defendant's guilt was
proven by the same theory; (2) the underlying facts are
very complex; (3) the allegations of one count are either
contradictory or marginally related to each other; (4)
the indictment and proof at trial varies; or (5) there is
strong evidence of jury confusion.
[State v. Cagno, 211 N.J. 488, 517 (2012) (citing
Frisby, 174 N.J. at 597).]
As the Court explained in Parker, when a series of alleged criminal acts
committed by a defendant involves acts that are "conceptually similar," no
special jury instruction on unanimity is required to segregate those acts. 124
N.J. at 639.
The State's theory that defendant endangered a minor through kissing or
digital penetration are conceptually similar. The theories are not completely
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distinct sets of events leading to the outcome; the kissing and insertion are
alleged to have taken place as a single set of acts, not as separate theories of
events. There is no genuine possibility of jury confusion about its responsibility
to unanimously find defendant's conduct endangered the morals of Katie. The
allegations are not confusing, nor contradictory. Consequently, the lack of a
unanimity charge did not cause an unjust result, let alone mere error by the court.
D.
As for the remaining arguments raised by defendant, including those
raised in his self-represented supplemental brief, they are without sufficient
merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed and remanded. We do not retain jurisdiction.
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