STATE OF NEW JERSEY v. JOHN TUCKER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4588-04T44588-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN TUCKER,

Defendant-Appellant.

________________________________

 

Submitted September 13, 2006 - Decided

Before Judges Wefing, Parker and Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, No. 03-06-1155.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jay L. Wilensky,

Assistant Deputy Public Defender, of

counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Karen M. Kazanchy,

Assistant Prosecutor, on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of one count of second-degree sexual assault, N.J.S.A. 2C:14-2b; one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and two counts of fourth-degree child abuse, N.J.S.A. 9:6-1 and 6-3. He was found not guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a and one count of second-degree sexual assault, N.J.S.A. 2C:14-2b. At sentencing, the trial court sentenced defendant to nine years in prison for sexual assault, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. It merged one of defendant's convictions for child abuse into the conviction for endangering the welfare of a child and imposed a sentence of seven years, with no period of parole ineligibility, to be served concurrently with the sentence for sexual assault. It also sentenced defendant to a concurrent twelve months for the remaining child abuse conviction. Appropriate fines and penalties were assessed, and defendant was ordered to comply with the registration requirements of N.J.S.A. 2C:7-2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

In October 2002, defendant took up residence in Jersey City with his sister and her four daughters, three of whom were minors. On March 30, 2003, one of the young girls, A.T., then ten years old, went to her adult sister J. and told her that defendant had been molesting her and her sister, J.T., who was twelve years old. A.T. was crying and upset. When their mother returned, J. told her of A.T.'s accusations. The girls' mother contacted the police, who commenced an investigation.

The girls' mother took A.T. and J.T. to their pediatrician the following day. The doctor performed an examination and found a slight tear on two positions of A.T.'s hymen, together with a clear vaginal discharge. She concluded that A.T. had been sexually assaulted. Her examination of J.T. found no abnormalities. A subsequent examination by a physician to whom the girls were referred by the Hudson County Sexual Assault Victim's Assistance Unit (SAVA) was normal. Both girls were interviewed by SAVA Detective Javier Toro and provided taped statements in which they each said their uncle had assaulted them and digitally penetrated them. These taped statements were played for the jury, and the girls testified as well.

At trial, the girls' mother testified that defendant bought a number of gifts for A.T., more than he purchased for her other children. She also testified that defendant would purchase clothes for A.T. that she considered inappropriate for a ten year old girl, such as miniskirts and tight shirts.

A.T. also testified that defendant purchased many more gifts for her than he did for her sisters. She remembered that one of these was a shirt upon which was printed, "If looks could kill." The record indicates that this shirt had the picture of a female devil printed on it.

Defendant had several tattoos; two of these bore the names of his two children. Another tattoo, however, was of a large-breasted woman; on this picture, A.T.'s name was printed.

On appeal, defendant raises the following issues:

POINT ONE THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S ALLOWANCE OF HIGHLY PREJUDICIAL BUT IRRELEVANT EVIDENCE, INCLUDING EVIDENCE OF HIS PURCHASE OF CLOTHING FOR A PURPORTED VICTIM.

POINT TWO THE DEFENDANT WAS PREJUDICED BY UNSUPPORTED AND IMPROPER TESTIMONY BY PHYSICIANS THAT SEXUAL ABUSE HAD OCCURRED, NECESSITATING REVERSAL. (Not Raised Below)

A. The Medical Testimony Constituted Impermissible Expert Testimony As To Credibility

B. The Expressed Opinion of Dr. Ghattas Was Not Held To The Requisite Degree of Certainty or Probability

C. The Testimony Constitutes Plain Error

POINT THREE A KEY WITNESS MADE A HIGHLY DISPARAGING REMARK CONCERNING THE DEFENDANT THAT WAS NOT CORRECTED BY THE TRIAL COURT, TO DEFENDANT'S GREAT PREJUDICE. (Partially Raised Below)

POINT FOUR THE DEFENDANT WAS PREJUDICED BY THE STATE'S SURPRISE REVELATION AT TRIAL OF HIS TATTOO.

POINT FIVE THE SENTENCE IMPOSED VIOLATES STATE V. NATALE, AND WAS EXCESSIVE, NECESSITATING A REMAND AND A REDUCTION.

A. A Natale Remand is Necessary

B. The Sentence Imposed Was Excessive

I

During the course of the trial, various items of clothing that defendant had purchased for A.T. were marked into evidence. Defendant now complains that this deprived him of a fair trial. We are unable to agree.

Defendant contends that this evidence should have been excluded under N.J.R.E. 403 which states:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Defendant points to that portion of the rule under which evidence which could generate "undue prejudice" should not be admitted.

The decision of the trial court with regard to admission of such evidence is entrusted to its sound discretion and, absent an abuse of that discretion, will generally be affirmed. State v. Swint, 328 N.J. Super. 236, 253 (App. Div. 2000). That evidence may be "shrouded with unsavory implications is no reason for [its] exclusion when it is a significant part of the proof." Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001) (quoting State v. West, 29 N.J. 327, 335 (1959)).

Here, the items of clothing received into evidence served to corroborate the testimony of A.T.'s mother that defendant had purchased inappropriate gifts for her daughter. Absent this evidence, the jury could have rejected her characterization of his gifts and considered her merely an over-protective mother. There was no error on the part of the trial court in this regard.

II

We also reject defendant's argument with regard to the expert testimony that was presented to the jury. The State presented the testimony of two physicians, Nadia Ghattas, M.D., the girls' regular pediatrician, and Frances Pellacia, M.D., the physician to whom they were referred by SAVA. Defendant contends that the testimony of both witnesses violated the well-established principle that it is not the function of an expert witness to express an opinion on the credibility of witnesses. State v. Vanderweaghe, 177 N.J. 229, 239-40 (2003); State v. Frisby, 174 N.J. 583, 595 (2003); State v. Papasavvas, 163 N.J. 565, 612-13 (2000). Defendant made no objection to their testimony at trial and thus must establish that plain error occurred. State. v. Torres, 313 N.J. Super. 129, 157 (App. Div.), certif. denied, 156 N.J. 425 (1998); R. 2:10-2.

Having reviewed the testimony of these witnesses, we do not agree with defendant's characterization. Dr. Ghattas did not testify that it was her opinion that sexual abuse had occurred because she believed A.T. and J.T. Rather, the sum of her testimony was that after receiving a report of sexual abuse, she conducted an examination, the results of which were consistent with sexual abuse. And, contrary to defendant's assertions, Dr. Ghattas did testify with the requisite degree of medical certainty. It was up to the jury whether to accept or reject her testimony.

As to Dr. Pellacia, the testimony of which defendant now complains was elicited by defense counsel on cross-examination in an attempt to demonstrate to the jury that there was not an adequate foundation for her opinion that A.T. and J.T. had been subjected to sexual abuse. By its verdict, the jury clearly rejected that position.

III

At one point during the testimony of A.T.'s and J.T.'s mother, defendant's sister, defendant's attorney wished to use a blackboard to assist his cross-examination. As the board was being wheeled into place, the girls' mother remarked, "Could you turn this this way because I really don't want to look at him?"

Such a remark was, of course, clearly improper, and defendant urges that the trial court's failure to give a corrective instruction to the jury deprived him of a fair trial.

The transcript, however, discloses that no such instruction was requested.

Rather, the assistant prosecutor requested a side bar conference at that point to discuss another matter, and during the course of that conference, defense counsel mentioned that he had heard the witness's statement. He merely requested the trial court to caution the witness, outside the presence of the jury. This the trial court did. In the course of those remarks, the court noted that the witness may have made a remark, that the court had not been able to hear it, but that she should refrain from any comments. We infer from that portion of the record that the jury was similarly unable to hear what the witness said.

IV

Defendant also complains that he was unfairly prejudiced in being made to display to the jury his tattoo that included A.T.'s name. The thrust of defendant's argument in his brief is that he was not advised prior to trial of the State's intent to use this tattoo as evidence and that this violated R. 3:13. Defendant made no such argument to the trial court; indeed, he agreed he was not urging there was a discovery violation. His argument at trial was that none of the witnesses had testified about the tattoo, and thus it had no evidential value. The trial court properly rejected this contention. And, to mitigate any possible prejudice to defendant, he displayed for the jury, in a procedure worked out between counsel, the additional tattoos he had, including two that referred to his children. We perceive no reversible error.

V

Defendant's final argument relates to the sentence imposed by the trial court. The State agrees that in light of the trial court's reliance on aggravating factors 2, 3, 6 and 9, N.J.S.A. 2C:44-1(a)(2), (3), (6), (9), and the Supreme Court's opinion in State v. Natale, 184 N.J. 458 (2005), defendant must be resentenced. Defendant is entitled to invoke Natale because his case was on direct appeal at the time Natale was decided. Natale, supra, 184 N.J. at 494.

Defendant's convictions are affirmed, and the matter is remanded to the trial court for resentencing.

 

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9

A-4588-04T4

RECORD IMPOUNDED

October 16, 2006