PER CURIAM.
Defendant Brett Barden was indicted by a Mercer County Grand Jury and charged with five counts of first degree aggravated sexual assault against a child less than thirteen years old,
After merging the convictions of third degree endangering the welfare of a child with the convictions of first degree aggravated sexual assault, the court sentenced defendant to an aggregate term of seventeen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act,
We gather the following facts from the record developed in the course of the trial.
As with most child sexual abuse cases, the State's principal witness was the alleged victim, "Patty"
At all times relevant to this case, "Patty" and "Cary"
On June 8 or 9, 2004, defendant went to Patty's house when she was home from school. After defendant confirmed that Patty was alone, the following occurred:
Defendant told Patty that that was her "first lesson"; Patty did not tell anyone about the encounter because defendant told her that "whatever was done was between us three," meaning defendant, Patty, and Cary.
A similar incident occurred the following month. On that occasion, Patty was in defendant's house in connection with a sleepover with Cary. Sometime during the middle of the night, defendant beckoned Patty from Cary's bedroom to meet him downstairs where he had sexual intercourse with her. Patty again did not tell anyone about this incident because "he said it was kept between [them]."
Patty testified that over the next several months these interactions happened "a lot"; "[s]ometimes it was in [defendant's] room, sometimes it was upstairs on the couch. Sometimes he would give me oral sex and sometimes he wouldn't. And sometimes he would use a condom and sometimes he wouldn't." The last incident took place on January 14, 2005, when defendant physically forced Patty to perform fellatio on him. As Patty described it, "[he] asked me to give him oral sex and I said I didn't want to. And then he grabbed the back of my head and put his penis in my mouth."
In August 2004, Patty told her sixteen-year-old cousin "Tammy"
Patty finally disclosed the abuse to her mother on March 8, 2005. According to the mother, after finding a note in Patty's room "talking about boys," she asked her daughter if she had ever had sex, willingly or unwillingly. This prompted Patty to tell her mother about her sexual encounters with defendant. The mother reported the abuse to the Lawrence Township Police the following day. Lawrence Township police officers took statements from Patty and her cousin Tammy. No physical evidence was collected because of the time delay between the last sexual incident and the time it was reported. Lawrence Township officers also contacted the Trenton Police Department because some of the sexual encounters occurred in that jurisdiction. Trenton officers also interviewed Patty, who identified a photograph of defendant as the person who had sexually abused her. The State also called an expert in the field of child sexual abuse who testified about Child Sexual Abuse Accommodation Syndrome.
Defendant called as witnesses Gladys Santiago, the mother of one of his children, and Maria Barden, his current wife and Cary's mother. Santiago testified that defendant was living with her during a brief period of reconciliation from December 2004 through January 2005. According to Santiago, defendant was residing in her house in Camden the weekend of January 14, 2005, the date of the last alleged sexual encounter with Patty. On cross-examination Santiago conceded, however, that "even when the defendant would tell [her] where he was or who he was with, [she] wouldn't really necessarily know for certain." Maria Barden made a similar concession with respect to defendant's whereabouts.
Against these facts, defendant now appeals raising the following arguments.
We reject these arguments and affirm. We will start our analysis by reviewing the State's exercise of its peremptory challenges.
In the course of jury selection, the prosecutor used three of her first seven peremptory challenges to excuse three African-American jurors. This left the panel as constituted at the time without any African-American jurors. Defendant argued that the jury thus "[did] not reflect the makeup of Mercer County."
In response, the trial judge directed the prosecutor to place on the record her reasons for challenging these jurors. According to the prosecutor, the first juror challenged had a sister who was incarcerated and a brother-in-law and a cousin who have been "in trouble" with the law. This juror was also single and did not have any children. In the prosecutor's view, this juror's lack of direct experience with children made him less capable of evaluating the testimony of the complaining witness. The prosecutor was also concerned with this juror's demeanor. At the times other jurors "were intently watching," she observed him looking around and appearing seemingly distracted. As to the second excused juror, the prosecutor was again concerned about her not having children, as well as her uncle's incarceration. The prosecutor also saw this juror looking at her with a "glare." As to the third juror, the prosecutor doubted her impartiality towards the State because the juror's son had been accused of a similar crime; the juror believed in her son's innocence despite his decision to plead guilty.
Later on in the jury selection process the prosecutor supplemented the record by noting that only three of the seven challenges exercised by the State were used to excuse AfricanA-mericans. She further emphasized that the complaining witness was also African-American. With respect to the first AfricanA-merican juror she excused, the prosecutor indicated she observed his hands over his eyes and that "a couple times he was closing his eyes, looking down, seem[ed] disinterested." This observation was corroborated by the sheriff's officers in the courtroom who "had even gone over to try and get [the juror's] attention [because t]here was concern that he might be sleeping or resting even." The trial judge accepted the prosecutor's race-neutral explanations and denied defense counsel's motion for a mistrial.
Defendant renewed his motion for a mistrial when the prosecutor excused a fourth African-American juror. The prosecutor justified her challenge based on the juror's demeanor. The prosecutor noted that the juror had "a lot of direct eye contact with the defendant."
The trial judge also noted that when she excused the jurors for recess, the juror "pushed his way forward and was the second person to leave the courtroom rather than the eighth person, which I thought was unusual because usually jurors wait for instructions and are willing to proceed in an orderly fashion." This attracted the judge's attention, who described the juror's conduct as "somewhat aggressive[]." Based on this record, the judge was "satisfied that this juror was excused for reasons that are specific to this case and not because of his membership to any particular group."
The trial judge denied defendant's second mistrial motion at the conclusion of the selection of the jury. Analytically, the judge found that defendant had met his burden of establishing a prima facie case that the State had used its peremptory challenges "on constitutionally-impermissible grounds."
With respect to the third juror excused by the State, the trial judge found the reasons proffered by the State were not race related. The juror believed in her son's innocence in a similar crime despite his guilty plea. The court noted that the first excused juror would have been foreperson of the jury. Under such circumstances, the court found that the State was justified in its concern over his waning attention during the proceedings. The judge also found acceptable the prosecutor's concerns over his lack of direct experience with children and his having family members charged with crimes.
The judge also found proper the prosecutor's explanation for excusing the second juror. The judge noted that this juror also lacked direct experience with children and had a family member incarcerated. There was thus a rational, race-neutral justification for the prosecutor to doubt the juror's ability to remain impartial. Ultimately, the judge found the prosecutor had acted in good faith in the exercise of the State's peremptory challenges. We agree.
Our State constitution provides that "the right to trial by an impartial jury drawn from [a] representative cross-section of the community is of `exceptional significance' and `goes to the very essence of a fair trial.'"
Nevertheless, while a prosecutor may not impermissibly exercise his "peremptory challenges to remove potential jurors on the basis of presumed `group bias' or mere `group affiliation,'" a prosecutor may still permissibly exclude "members of a cognizable group for valid, articulated, trial-related reasons."
When the trial court finds that the defendant established a prima facie case of discrimination, the burden then shifts to the prosecution to rebut the "presumption of unconstitutional action" that is triggered.
The trial court must then decide if the articulated justifications for the juror's removal were "genuine and reasonable grounds for believing that potential jurors might have situation-specific biases that would make excusing them reasonable and desirable . . . or, on the other hand, sham excuses belatedly contrived to avoid admitting acts of group discrimination."
Finally, the trial judge must evaluate the defendant's prima facie showing against the prosecution's proffered justifications "to determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias."
Here, the prosecutor stated her case-specific, race-neutral reasons for excusing the jurors involved before the trial judge had the opportunity to determine whether defendant had established a prima facie case as required under
We next consider defendant's argument concerning the prosecutor's summation to the jury.
Defendant argues that, in her summation, the prosecutor improperly attempted to bolster the credibility of the complaining witness. Specifically, the prosecutor emphasized that Patty's trial testimony was consistent with the account of events she initially gave to police investigators at the Lawrence Township police station. Defendant asserts that the prosecutor's remarks were improper because, although the jury knew that Patty gave two separate statements to the police, the contents of those statements were not revealed to the jury.
According to defendant, the prosecutor's assertion that the statements were consistent with her trial testimony thus impermissibly referred to matters that were not in evidence and accomplished what
The State argues the prosecutor's attempts to convince the jury of the credibility of the State's main witness did not rise to the level of improper bolstering. While acknowledging that the victim's out-of-court statements would have been inadmissible substantive evidence, the State maintains that the complaining witness' statements were referenced repeatedly throughout the trial. Indeed, the first reference to the statements was made by defense counsel during his opening statements.
The State also asserts that defense counsel's failure to object and to request a limiting instruction is indicative that any alleged impropriety was inconsequential. The State also emphasizes that defendant's failure to object also requires that we evaluate his argument under the plain error standard. We should thus reject this argument because the alleged error is insufficient to impeach the reliability of the jury verdict.
Our standard of review is well-settled. Although prosecutors are "expected to make vigorous and forceful closing arguments to juries" and are "afforded considerable leeway in closing arguments," they are nevertheless confined to making comments that "are reasonably related to the scope of the evidence presented."
To determine whether a prosecutor's remarks during summation exceeded the bounds of proper comment, thus warranting a reversal, we must ask whether the conduct "was so egregious that it deprived the defendant of a fair trial."
Accordingly, "an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them."
Here, the prosecutor focused her summation on Patty's credibility, specifically that she did not have any motive to falsely accuse defendant and that her testimony was credible. In making this point, the prosecutor mentioned that Patty made three separate statements to the police. The prosecutor then stated the following: "Consider that overall [Patty] was consistent, because you heard that there were statements, lengthy statements that she did at the police station. And don't you think if there were wild inconsistencies, that that would have been pointed out to you?"
The prosecutor then remarked on Patty's demeanor while testifying, the credibility and potential biases of the other witnesses, and defense counsel's emphasis in his opening statement on potentially false accusations. At the conclusion of the State's summation, the trial judge dismissed the jury and asked counsel if they had any matters that needed to be addressed before taking a recess. Defense counsel did not object to any statements made by the prosecutor during her summation at that time, nor did he object prior to the jury charge the next morning.
Given this record, we discern no basis to reverse. Although the prosecutor should not have referred to statements given by the complaining witness that were not admitted as evidence at trial, these comments can be fairly characterized as fleeting. Defense counsel's failure to object at the time, despite having at least two separate opportunities for doing so, is also indicative that he did not consider the remarks as particularly prejudicial. When considered as a whole, there is no basis to conclude that the prosecutor's summation had the capacity of depriving defendant of his right to a fair trial.
Defendant's arguments as stated in Points III and IV lack sufficient merit to warrant discussion in a written opinion.
Finally, the sentence imposed by the court was based upon competent, reasonable, and credible evidence.
Affirmed.