State v. Smith

• Decision Date: 19 April 2022
• Docket Number: DOCKET NO. A-5557-17
• Citation: 471 N.J.Super. 548,274 A.3d 652
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Karl SMITH, a/k/a Carl Smith, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

471 N.J.Super. 548

274 A.3d 652

STATE of New Jersey, Plaintiff-Respondent,

v.Karl SMITH, a/k/a Carl Smith, Defendant-Appellant.

DOCKET NO. A-5557-17

Superior Court of New Jersey, Appellate Division.

Submitted November 8, 2021

Decided April 19, 2022

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Messano, Rose and Enright.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

A Camden County grand jury returned a twenty-count indictment against defendant Karl Smith. The judge granted the State's pretrial motion to dismiss six of the first eighteen counts alleging defendant committed sexual offenses against his daughter, K.W. (Karen), born August 2003; the last two counts alleged he committed sexual offenses against S.E. (Sara), the daughter of defendant's girlfriend, born June 2008.¹

The remaining twelve counts involving Karen charged defendant with two counts of first-degree aggravated sexual assault committed between November 2015 and August 2016, N.J.S.A. 2C:14-2(a)(1) (counts one and two); two counts of second-degree sexual assault committed during the same dates, N.J.S.A. 2C:14-2(b) (renumbered counts three and four); two counts of first-degree aggravated sexual assault committed between August 2016 and January 2017, N.J.S.A. 2C:14-2(a)(2)(a) (renumbered counts five and six); two counts of third-degree aggravated sexual contact committed during the same dates, N.J.S.A. 2C:14-3(a) (renumbered counts seven and eight); and four counts of second-degree endangering the welfare of a child committed between November 2015 and January 2017, N.J.S.A. 2C:24-4(a)(1) (renumbered counts nine, ten, eleven and twelve). The two counts involving Sara alleged defendant committed second-degree sexual assault between October 2015 and August 2016, N.J.S.A. 2C:14-2(b) (renumbered count thirteen); and second-degree endangering the welfare of a child between the same dates, N.J.S.A. 2C:24-4(a)(1) (renumbered count fourteen).

Prior to trial, defendant moved to sever the two counts involving Sara for a separate trial. He also sought a ruling that admission of evidence regarding Sara's precocious sexual knowledge did not violate the Rape Shield Law, N.J.S.A. 2C:14-7. The judge denied both motions. At trial, the jury acquitted defendant of counts one through four, could not reach a verdict on the remaining eight counts as to Karen, and found defendant guilty of counts thirteen and fourteen alleging offenses against Sara.

After granting the State's motion to impose an extended term of imprisonment on defendant as a persistent offender, N.J.S.A. 2C:44-3(a), the judge sentenced defendant to eighteen years' imprisonment on the sexual assault conviction with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent ten-year term on the child endangerment conviction.²

Before us, defendant raises the following points for our consideration:

POINT I — DEFENDANT'S MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED, AND AS A RESULT OF IMPROPER JOINDER OF OFFENSES HE WAS DENIED THE RIGHT TO A FAIR TRIAL.

POINT II — DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S ERROR IN PRECLUDING DEFENDANT FROM INTRODUCING EVIDENCE OF THE VICTIM'S PREVIOUS FAMILIARITY WITH SEXUALITY.

POINT III — DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO MULTIPLE HEARSAY STATEMENTS OF THE VICTIM ALLOWED INTO EVIDENCE. (Not raised below.)

POINT IV — THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS, WHERE THE STATE SUGGESTED THAT THE DEFENDANT HAD THE PROPENSITY TO COMMIT CRIMES. (Not raised below.)

POINT V — THE SENTENCE OF EIGHTEEN YEARS [IN] NEW JERSEY PRISON WAS EXCESSIVE.^[3]

I.

The State contended defendant's sexual abuse of the two children first came to light on August 20, 2016. At that time, defendant lived in a two-bedroom apartment in Camden with Sara, her mother and defendant's girlfriend, K.D. (Kate), Kate's twelve-year old son, A.E. (Anthony), and defendant's and Kate's infant daughter, D.S. (Donna). The charges involving Karen surfaced in early 2017 when doctors examined Karen and discovered she had gonorrhea. During further questioning, Karen said defendant had sexually assaulted her on several occasions beginning in 2015 and continuing until two months before her exam.

A.The Pre-trial Severance Motion

Defendant moved to sever the two counts charging him with crimes committed against Sara from trial of all other counts in the indictment. He asserted that trying the two sets of charges together would be unduly prejudicial. In her brief opposing the motion, the prosecutor extensively summarized Sara's statement to Detective Daniel Choe on August 21, 2016.⁴ She also summarized Kate's statement to the detective, in which Kate said she confronted defendant after Sara's disclosure, and "defendant denied touching [Sara] inappropriately." The prosecutor wrote: "[Kate] stated the defendant said, ‘Maybe she might [have] thought I grabbed her when I picked the blanket off of her and put it on [Donna].’ " In her brief, the prosecutor summarized defendant's statement to the detective, also given on August 21, noting defendant "denied intentionally touching [Sara] in a sexual manner and claimed he only touched her to move her over on the bed." The prosecutor then summarized the case regarding Karen's allegations in detail, extensively quoting portions of Karen's statement to Detective Choe.

The State argued a single trial was appropriate, because defendant's assaults were against "female children to whom ... defendant [wa]s a father figure," and the crimes "occurred when the children were staying at ... defendant's home." Citing State v. Covell, 157 N.J. 554, 725 A.2d 675 (1999), the prosecutor contended a wider range of Rule 404(b) evidence is admissible when "motive or intent of the accused ... is material." Regarding the two counts of the indictment charging offenses against Sara, the prosecutor said,

The State is required to prove defendant's intent and knowledge in touching [Sara's] vagina. The defendant's state of mind is a material issue in dispute. The significance of this material issue is magnified by the fact that the defendant provided a statement to police, and [Sara's] mother provided a statement to police, claiming that [Sara] may have been confused regarding the sexual assault ... by ... defendant mistakenly touching her while he was trying to move the blanket covering her. Thus, it is abundantly clear that absence of mistake and defendant's intent are material issues in dispute at trial.

[(Emphasis added).]

At oral argument, the judge indicated he had read the briefs.⁵ Defense counsel began by arguing defendant's "intent or motive" was not material. The judge asked if "intent [was] a question based upon what [defendant] said in his statement," to which counsel responded, "it may very well be." In the colloquy that followed, the judge acknowledged he had not read defendant's statement, but said,

Going on what's in the briefs, [defendant] indicated that ... he was moving the blanket ... and there was an inadvertent touching if you will —

Defense counsel: Correct.

Judge: — versus a purposeful act. And that seems to me goes directly to intent.

[(Emphasis added).]

Defense counsel changed tack, arguing that trying the counts charging offenses against Karen and those charging crimes against Sara in the same trial would "create an overwhelming ... prejudice ... with regard to the other two counts."

The prosecutor argued the State had to prove "defendant's intent in touching [Sara]." She said, "Obviously, the fact that he was doing this to his other child during the same time frame and that those behaviors began exactly the same way ... would obviously go to intent ...." The judge asked: "[W]ith reference to [Sara], apparently because she complained immediately[,] ... it got no further ... than the first touching incidents. Is that a fair statement ... [?]" The prosecutor replied, "That is a fair statement."⁶

Reviewing the State's proffer, the judge noted that in his statement to Detective Choe, defendant "suggested that [Sara] may have mistakenly thought he grabbed her when he picked the blanket off her and put it on her sister." Applying the Cofield ⁷ analysis, the judge denied the severance motion, concluding as to the first prong, "there [wa]s relevance in the testimony regarding these two incidents." Considering the fourth prong, and quoting State v. Garrison, 228 N.J. 182, 197–98, 155 A.3d 996 (2017), the judge concluded, "Some types of evidence ... require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent." The judge said "intent is the issue" in this case, and he denied the motion for severance.

The Rape Shield Motion

Defendant sought to introduce evidence that when Sara was four years old, her teacher notified the Division of Child Protection and Permanency (the Division) that she observed the child on several occasions lying on her back with her legs spread and her hands down the front of her pants. The Division discovered from Kate that Sara had a urinary tract infection and her physician prescribed vaginal cream for relief.

Additionally, Sara told a Division caseworker that she and her three-year-old male cousin would play a game wherein whenever she said "ice cream vanilla," her cousin touched her vaginal area with a pen. The Division referred the family to CARES Institute (CARES), described later during trial as "a medical clinic that sees children when there are concerns for abuse or neglect of those children." Dr. Stephanie Lanese examined Sara during the referral and also four years later, when the August 2016...