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STATE OF NEW JERSEY v. DAJON G. LESTER
Date: 02-18-2017
Case Number: A-2397-14T1
Judge: Greta Gooden Brown
Court: SUPERIOR COURT OF NEW JERSEY
Plaintiff's Attorney:
Christopher S. Porrino, Attorney General, Lila B. Leonard, Deputy Attorney General
Defendant's Attorney: Jennifer Gottschalk
Description:
Tried by a jury, defendant Dajon G. Lester was convicted of
second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count One),
and fourth-degree criminal trespass, N.J.S.A. 2C:18-3, as a
lesser-included offense of second-degree burglary, N.J.S.A. 2C:18
2a(1) (Count Two). On December 22, 2014, defendant was sentenced
on Count One to a five-year prison term with an eighty-five percent
parole ineligibility period pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. Defendant was placed on parole supervision
for life and ordered to comply with the restrictions and
supervision of Megan's Law. A concurrent eighteen-month prison
term was imposed on Count Two. The present appeal followed.
On appeal, defendant raises the following issues for our
consideration:
POINT ONE
THE TRIAL COURT ERRED BY ADMITTING EVIDENCE EXTRACTED FROM THE VICTIM'S CELL PHONE.
A. The chain of custody for the victim's cell phone was not sufficiently established to warrant the admissibility of the text messages downloaded from it.
B. The State failed to qualify Perticari as an expert before eliciting his testimony as an expert and failed to provide defendant with adequate and timely information of the methodology and equipment he used to extract data from the victim's cell phone (Raised in part below).
C. The court's erroneous decision to admit the text messages from S.G.'s cell phone was unduly prejudicial to defendant.
POINT TWO
THE TRIAL COURT'S CUMULATIVE ERRORS CAUSED DEFENDANT'S UNJUST CONVICTIONS FOR SECONDDEGREE SEXUAL ASSAULT AND FOURTH-DEGREE CRIMINAL TRESPASS.
A. The trial court erred when it questioned S.G. then allowed the State further direct examination before permitting crossexamination by defendant.
B. The trial court erroneously permitted the State to elicit hearsay testimony from the S.A.N.E. nurse.
C. The trial court erred when it determined to include "attempt to inflict bodily injury" in its charge to the jury on "burglary."
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PROPERLY WEIGHING THE HARDSHIP TO DEFENDANT'S FAMILY AND GIVING INSUFFICIENT WEIGHT TO THE UNLIKELIHOOD OF RECURRENCE OF THE CIRCUMSTANCES WHEN IT SENTENCED HIM TO THE FIVE-YEAR N.E.R.A. TERM.
We have considered these arguments in light of the record and
applicable legal principles. We reject each of the points raised
and affirm.
I.
We recount the most pertinent portions of the evidence adduced
at the October 2014 trial. Defendant and S.G. began a dating
relationship around February 2009, when S.G. was a high school
sophomore. Several times during the course of their relationship
they broke up but later reconciled. During the week prior to the
February 7, 2011 incident that led to the criminal charges,
defendant broke up with S.G., and she did not wish to reunite with
him.
On February 7, 2011, at approximately 7:10 a.m., S.G. was
leaving her house to go to the bus stop for school when she
encountered defendant standing at her door. Defendant asked S.G.
why she was not responding or speaking to him, and she told him
she did not want to talk to him. Defendant walked toward S.G.,
forcing her to step backwards into her house. S.G. told defendant
to leave because she needed to go to school and was going to miss
the bus, but defendant continued to step toward her and ask why
she was ignoring him.
When they reached S.G.'s living room, defendant physically
pushed S.G. onto the couch and removed her boots and jeans. S.G.
told defendant she did not "want to do this" and to "please get
out of my house." Defendant nonetheless attempted to perform oral
sex on S.G., but she pushed his head away. S.G. cried and told
defendant she "did not want to do this, over and over again."
Next, defendant climbed on S.G., who attempted to push him off
while she cried and "made it very clear to him that [she] did not
want to have sex." Defendant then put his hand over S.G's mouth
and pushed his penis into her vagina. This continued for
approximately two minutes, with defendant's hand over S.G.'s mouth
the entire time. S.G. could not recall whether defendant
ejaculated.
When defendant finally stopped, S.G. picked up her clothes
and ran to the bathroom. Defendant followed her and apologized.
He then called one of his friends to pick S.G. up and drive her
to school since she had missed the bus.
At school, S.G. attended her first two classes. During her
second class, she reported the incident to her best friend, who
in turn reported it to the Guidance Department. The guidance
counselor contacted S.G.'s mother, who transported her to the
hospital to undergo a gynecological examination and to take samples
for a rape kit.
Gretchen Raimondo, RN, a forensic nurse certified in sexual
assault, examined S.G. Raimondo identified a "five-day window"
within which a forensic physical examination should be performed
before evidence begins to deteriorate. Thus, "hypothetically, if
a victim has had intercourse, sexual intercourse with another
individual, let's say, [thirty-six] to [forty] hours before
[examination]," evidence of that intercourse would likely still
be present. Raimondo specifically explained what S.G.'s
examination entailed. Additionally, over defense counsel's
objection, Raimondo was permitted to testify about what S.G. told
her regarding the February 7, 2011 incident. She further testified
that S.G. had no physical injuries.
The samples Raimondo collected were sent to a DNA laboratory
for testing. At trial, a forensic scientist employed by the New
Jersey State Police identified defendant as the source of the DNA
in the sperm specimens.
S.G. testified that defendant sent her a series of text
messages following the sexual assault. Among other things,
defendant stated in the messages, "I know wha[t] I did was wrong;"
"I'm sorry that was wrong;" "[d]on't tell anybody [S.G.] please;"
and "[i]f you [going to] tell anybody tell me now I'll turn myself
in now no sense [in] waiting." S.G. gave her cell phone to
Westville Patrolman Daniel Rice at the hospital on February 7,
2011. Rice accidently wrote that he logged the evidence in on
February 8, but testified this was a "typo." In conjunction with
preparing the evidence log, he prepared a handwritten record of
what he did with the evidence that was correctly dated February
7. He further testified he did not manipulate the cell phone or
look through it.
S.G. left the hospital at approximately 3:30 p.m. on February
7, 2011. She went to the Westville Police Department where she
met with Detective Eric Hibbs, articulated what happened, and gave
the police consent to keep and search her cell phone. During her
7 A-2397-14T1
interview with Hibbs, S.G. cried and "appeared to be upset" as she
recounted what had occurred. S.G. also signed a Consent to Search
form allowing the police to search "any and all messages, pictures,
phone numbers and any other data contained on the phone that may
assist in the investigation."
Hibbs "took the phone [from the evidence locker] to the
Gloucester County Prosecutor's Office . . . and turned it over to
Detective Brian Perticari, to extract possible information
relating to this investigation." After Perticari finished
retrieving the information, Hibbs returned the phone to S.G. on
February 9, 2011. Hibbs testified he merely transported the phone
to Perticari and did not manipulate the phone or view its contents.
Perticari testified he was contacted by Hibbs to examine
S.G.'s cell phone on February 9, 2011. He detailed the process
he used to extract data from the phone, which took approximately
ten minutes. He was only able to conduct a logical extraction,
which, he explained, allowed him to retrieve anything that was
active on the phone, but not deleted information. Perticari did
not sign an evidence log or prepare a report detailing the
methodology he used to extract the information from the cell phone.
Defendant testified he broke up with S.G. on February 4,
2011. They had an altercation that day, which defendant described
in part as follows:
8 A-2397-14T1
So it really was like a back-and-forth argument. I mean, it didn't really get anywhere. And as we got closer to her house, it kind of got physical, the fight. . . . .
She — I don't remember what I said to strike it off. But she like she had a hand wallet and she like hit me a couple times in the side of the ear with the wallet. . . . .
And, I don't know, my reaction, I just pulled — like I turned around and I pulled her hair. And I had gripped her up by her shoulders and like had her on the tree. But, I mean, I was more so just trying to make a point. I wasn't trying to hurt her at all. I just — it was my reaction when she was hitting me with the wallet.
He further testified that later that evening, they texted all
night and "ended up making up" and made plans to see each other
on Saturday evening at his father's house in National Park.
According to defendant, they spent Saturday night together and
engaged in consensual vaginal sex.
The next day, defendant received a text message from S.G.
terminating their relationship. Defendant attempted to win S.G.
back, but she refused and did not answer any of his text messages
or calls. Because this was not typical, he went to S.G.'s home
around 7:00 a.m. on February 7, 2011, to find out why she was
ignoring him. Upon arriving, he saw S.G. coming out the front
9 A-2397-14T1
door. S.G. told defendant she did not wish to talk to him.
Defendant testified that, although they argued for about ten
minutes, he did not put his hands on S.G., enter her house, or
have sex with her that morning. After he left, defendant attempted
to contact S.G. via a series of text messages on February 7 and
8, 2011. According to defendant, in these text messages he was
apologizing to S.G. for the physical altercation that occurred the
previous Friday.
II.
Defendant argues that the trial court erred in admitting the
text messages extracted from S.G.'s cell phone. Specifically, he
contends that the chain of custody for S.G.'s cell phone was not
sufficiently established, and that the State failed to qualify
Perticari as an expert witness. We find no merit to these
contentions.
"The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter is what its
proponent claims." N.J.R.E. 901; see also State v. Brunson, 132
N.J. 377, 393-94 (1993). "The determination of whether the State
sufficiently established the chain of custody is within the
discretion of the trial court." State v. Mosner, 407 N.J. Super.
40, 62 (App. Div. 2009). Such evidence will usually be admitted
10 A-2397-14T1
"if the court finds in reasonable probability that the evidence
has not been changed in important respects or is in substantially
the same condition as when the crime was committed." Ibid.
(citations omitted). Defects in the chain do not negate
admissibility, but go instead to the weight of the evidence. State
v. Morton, 155 N.J. 383, 446 (1998), cert. denied, 532 U.S. 931,
121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); Mosner, supra, 407 N.J.
Super. at 62.
Here, through the testimony of each officer who possessed the
cell phone, the State established an unbroken chain of custody.
The fact that the dates in the evidence log may be inconsistent
with the officers' testimony goes to the weight to be accorded the
text messages rather than their admissibility. Morton, supra, 155
N.J. at 446. Each officer who possessed the cell phone testified
who he gave it to or retrieved it from. Further, everyone who
possessed the cell phone testified it was not tampered with. Id.
at 447. Thus, the trial court properly found there was a
"reasonable probability that the evidence has not been changed in
important respects or is in substantially the same condition as
when the crime was committed." Brunson, supra, 132 N.J. at 393
94 (citations omitted).
Additionally, S.G. testified as to the general content of the
text messages she received on February 7, 2011. She noted that
11 A-2397-14T1
defendant apologized, stating: "I'm sorry. Please don't tell
anybody. I promise if you don't tell anybody, I'll leave you
alone for good." Her testimony corroborates the police testimony
that the messages were not tampered with. More importantly, on
cross-examination defendant admitted sending S.G. the text
messages on the dates and times shown. His own admission clearly
proves the reliability of the text messages. Accordingly, the
evidence was properly admitted and defendant was not unduly
prejudiced by its admission.
Defendant also argues that the State failed to qualify
Detective Perticari as an expert witness. As defense counsel did
not object when Perticari's testimony was presented, we review
defendant's argument pursuant to the plain error standard. R.
2:10-2. Under that standard, a conviction will be reversed only
if the error was "clearly capable of producing an unjust result[,]"
that is, if it was "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. Taffaro, 195 N.J. 442, 454 (2008).
Defendant must prove that a plain error was clear and obvious and
that it affected his substantial rights. State v. Chew, 150 N.J.
30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145
L. Ed. 2d 493 (1999), overruled in part on other grounds, State
v. Boretsky, 186 N.J. 271, 284 (2006). A defendant's failure to
12 A-2397-14T1
object leads to the reasonable inference that the issue was not
significant in the context of the trial. State v. Macon, 57 N.J.
325, 333 (1971).
Witnesses, including police officers, testify in a variety
of roles. A fact witness is one who testifies as to what "he or
she perceived through one or more of the senses." State v. McLean,
205 N.J. 438, 460 (2011). "Fact testimony has always consisted
of a description of what the officer did and saw[.]" Ibid.
"Testimony of that type includes no opinion, lay or expert, and
does not convey information about what the officer 'believed,'
'thought' or 'suspected,' but instead is an ordinary fact-based
recitation by a witness with first-hand knowledge." Ibid.
(citations omitted).
Expert witnesses, however, "explain the implications of
observed behaviors that would otherwise fall outside the
understanding of ordinary people on the jury." Ibid. "Expert
testimony is admissible '[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.'" State v. Simms,
224 N.J. 393, 403 (2016) (quoting N.J.R.E. 702); State v. Cain,
224 N.J. 410, 420 (2016) (quoting same). "In other words, to be
admissible, expert testimony should 'relate[] to a relevant
subject that is beyond the understanding of the average person of
13 A-2397-14T1
ordinary experience, education, and knowledge.'" State v. Sowell,
213 N.J. 89, 99 (2013) (quoting State v. Odom, 116 N.J. 65, 71
(1989)). If the matter is "within the competence of the jury,
expert testimony is not needed." Ibid.
Lay opinion testimony is governed by N.J.R.E. 701, which
permits a witness not testifying as an expert, to provide
"testimony in the form of opinions or inferences . . . if it (a)
is rationally based on the perception of the witness and (b) will
assist in understanding the witness' testimony or in determining
a fact in issue." Mclean, supra, 205 N.J. at 456 (quoting N.J.R.E.
701). Courts in New Jersey "have permitted police officers to
testify as lay witnesses, based on their personal observations and
their long experience in areas where expert testimony might
otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187,
198 (1989).
Here, Perticari was presented as a fact, not expert, witness.
He testified as to the procedure he used in retrieving the text
messages from S.G.'s cellphone. His testimony lacked opinion, lay
or expert, and did not convey what the detective believed, thought,
or suspected the text messages meant. Instead, his testimony was
a simple recitation of what he did to retrieve the information
from the cell phone.
14 A-2397-14T1
Even if Perticari's testimony fell within the scope of the
expert opinion rule because it was specialized knowledge based on
his training and experience, we find any error in its admission
to be harmless. R. 2:10-2. First, it is clear from Perticari's
testimony during the N.J.R.E. 104 hearing that he possessed
sufficient education, training, and experience to qualify as an
expert in the field of cell phone data extraction. Where a witness
possesses sufficient qualifications to have testified as an
expert, any error in allowing the lay opinion may be deemed
harmless. State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div.
1995). Second, as we have previously emphasized, defendant
admitted to sending the very same text messages that Perticari's
extraction produced.
III.
Defendant argues that the trial court's cumulative errors
deprived him of a fair trial. Specifically, he argues that the
court erred when: (1) it admitted the text messages; (2) it
questioned S.G. and then allowed the State further direct
examination before permitting cross-examination by defendant; (3)
it permitted the State to elicit hearsay testimony from the nurse;
and (4) when it included "attempt to inflict bodily injury" in its
burglary charge. The State counters that there were no errors,
let alone cumulative errors.
15 A-2397-14T1
Our case law recognizes that a "defendant is entitled to a
fair trial, but not a perfect one." State v. Wakefield, 190 N.J.
397, 537 (2007) (quoting State v. R.B., 183 N.J. 308, 333-34
(2005)). Nonetheless, when legal errors cumulatively render a
trial unfair, the Constitution requires a new trial. State v.
Orecchio, 16 N.J. 125, 129 (1954). "[W]here any one of several
errors assigned would not in itself be sufficient to warrant a
reversal, yet if all of them taken together justify the conclusion
that defendant was not accorded a fair trial, it becomes the duty
of this court to reverse." Id. at 134 (citations omitted).
Having reviewed the record, we find no evidence of error,
either standing alone or cumulatively, which would warrant
reversal of defendant's convictions. First, for the reasons
previously stated, the court did not err in admitting the text
messages. Second, we discern no error in the three short questions
the trial judge posed to S.G. at the end of her initial direct
examination. N.J.R.E. 614 specifically allows judges to call or
question witnesses "in accordance with law and subject to the
right of a party to make timely objection." "Under our case law,
it is entirely proper for judges to ask witnesses questions to
clarify their testimony." Taffaro, supra, 195 N.J. at 450-51.
Here, contrary to defendant's argument, the judge's questions did
not suggest he was taking the State's side. The questions were
16 A-2397-14T1
intended to clarify S.G.'s testimony on direct examination, which
is permissible. Ibid.
Third, the court did not err in charging defendant with
"attempt to inflict bodily injury" in its burglary charge, even
though attempt was not specifically referenced in the language of
the indictment. Defendant was on notice that he was being charged
with second-degree burglary. See N.J.S.A. 2C:18-2 (providing
that: "Burglary is a crime of the second degree if in the course
of committing the offense, the actor: (1) Purposely, knowingly or
recklessly inflicts, attempts to inflict or threatens to inflict
bodily injury on anyone[.]"). Equally important, defendant's
acquittal on the burglary charge moots his contention that he was
prejudiced by the inclusion of this language in the jury charge.
Finally, defendant contends the court erred in permitting the
nurse to testify as to specific facts S.G. shared with her about
the sexual assault. The State in turn argues that the challenged
evidence falls within the scope of N.J.R.E. 803(c)(4), which
excludes from the hearsay rule:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
17 A-2397-14T1
The N.J.R.E. 803(c)(4) hearsay exception does not apply in
cases where the purpose of the examination is to gather evidence.
State in the Interest of C.A., 201 N.J. Super. 28, 33 (App. Div.
1985). Defendant contends that S.G. was transported to the
hospital to undergo gynecological exams and take samples for a
rape kit. Thus, the purpose of her visit was to gather evidence,
rendering any hearsay statements inadmissible. The State responds
that the primary purpose of the examination was to provide medical
treatment to S.G., and that any evidence gathering was ancillary.
Even if we accept defendant's interpretation, we conclude that any
error in the admission of the nurse's testimony was harmless
because S.G. testified to the events leading up to and during the
sexual assault. The nurse's testimony was only a recitation of
S.G.'s earlier testimony, and did not deprive defendant of a fair
trial.
IV.
Defendant argues that the court's failure to find mitigating
factor eleven resulted in an excessive sentence. Defendant
contends that he should have been sentenced as a third-degree
offender to a three-year prison sentence.
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence imposed which is not manifestly excessive or
18 A-2397-14T1
unduly punitive, does not constitute an abuse of discretion, and
does not shock the judicial conscience. State v. O'Donnell, 117
N.J. 210, 215-16, 220 (1989). In sentencing, the trial court
"first must identify any relevant aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the
case." State v. Case, 220 N.J. 49, 64 (2014). The court must
then "determine which factors are supported by a preponderance of
[the] evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." O'Donnell, supra, 117 N.J.
at 215. We are "bound to affirm a sentence, even if [we] would
have arrived at a different result, as long as the trial court
properly identifie[d] and balance[d] aggravating and mitigating
factors that [were] supported by competent credible evidence in
the record." Ibid.
Here, the judge provided an adequate factual basis for finding
aggravating factors three, six, and nine, and mitigating factor
eight. See Case, supra, 220 N.J. at 66 (citing State v. Fuentes,
217 N.J. 57, 73 (2014) (noting that a sentencing court must state
a factual basis supporting a finding of particular aggravating or
mitigating factors affecting the sentence)). The judge expressly
considered mitigating factor eleven, but declined to apply it.
Although the judge "underst[ood] for sure a hardship upon []
defendant being away from his family," he also noted that defendant
19 A-2397-14T1
had been unemployed for a year and there was no indication he was
supporting his one-year-old child. Accordingly, the judge found
defendant failed to establish an "excessive hardship."
Mitigating factor eleven applies where "imprisonment of the
defendant would entail excessive hardship to himself or his
dependents." N.J.S.A. 2C:44-1(b)(11). However, our Supreme Court
has made clear that the mere fact that a defendant has children
does not require a trial court to find mitigating factor eleven.
State v. Dalziel, 182 N.J. 494, 505 (2005). Instead, a defendant
must demonstrate that the children are dependents who will suffer
an excessive hardship if the defendant is incarcerated. Ibid.
Defendant failed to do so here, as the trial judge correctly
concluded.
second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count One),
and fourth-degree criminal trespass, N.J.S.A. 2C:18-3, as a
lesser-included offense of second-degree burglary, N.J.S.A. 2C:18
2a(1) (Count Two). On December 22, 2014, defendant was sentenced
on Count One to a five-year prison term with an eighty-five percent
parole ineligibility period pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. Defendant was placed on parole supervision
for life and ordered to comply with the restrictions and
supervision of Megan's Law. A concurrent eighteen-month prison
term was imposed on Count Two. The present appeal followed.
On appeal, defendant raises the following issues for our
consideration:
POINT ONE
THE TRIAL COURT ERRED BY ADMITTING EVIDENCE EXTRACTED FROM THE VICTIM'S CELL PHONE.
A. The chain of custody for the victim's cell phone was not sufficiently established to warrant the admissibility of the text messages downloaded from it.
B. The State failed to qualify Perticari as an expert before eliciting his testimony as an expert and failed to provide defendant with adequate and timely information of the methodology and equipment he used to extract data from the victim's cell phone (Raised in part below).
C. The court's erroneous decision to admit the text messages from S.G.'s cell phone was unduly prejudicial to defendant.
POINT TWO
THE TRIAL COURT'S CUMULATIVE ERRORS CAUSED DEFENDANT'S UNJUST CONVICTIONS FOR SECONDDEGREE SEXUAL ASSAULT AND FOURTH-DEGREE CRIMINAL TRESPASS.
A. The trial court erred when it questioned S.G. then allowed the State further direct examination before permitting crossexamination by defendant.
B. The trial court erroneously permitted the State to elicit hearsay testimony from the S.A.N.E. nurse.
C. The trial court erred when it determined to include "attempt to inflict bodily injury" in its charge to the jury on "burglary."
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PROPERLY WEIGHING THE HARDSHIP TO DEFENDANT'S FAMILY AND GIVING INSUFFICIENT WEIGHT TO THE UNLIKELIHOOD OF RECURRENCE OF THE CIRCUMSTANCES WHEN IT SENTENCED HIM TO THE FIVE-YEAR N.E.R.A. TERM.
We have considered these arguments in light of the record and
applicable legal principles. We reject each of the points raised
and affirm.
I.
We recount the most pertinent portions of the evidence adduced
at the October 2014 trial. Defendant and S.G. began a dating
relationship around February 2009, when S.G. was a high school
sophomore. Several times during the course of their relationship
they broke up but later reconciled. During the week prior to the
February 7, 2011 incident that led to the criminal charges,
defendant broke up with S.G., and she did not wish to reunite with
him.
On February 7, 2011, at approximately 7:10 a.m., S.G. was
leaving her house to go to the bus stop for school when she
encountered defendant standing at her door. Defendant asked S.G.
why she was not responding or speaking to him, and she told him
she did not want to talk to him. Defendant walked toward S.G.,
forcing her to step backwards into her house. S.G. told defendant
to leave because she needed to go to school and was going to miss
the bus, but defendant continued to step toward her and ask why
she was ignoring him.
When they reached S.G.'s living room, defendant physically
pushed S.G. onto the couch and removed her boots and jeans. S.G.
told defendant she did not "want to do this" and to "please get
out of my house." Defendant nonetheless attempted to perform oral
sex on S.G., but she pushed his head away. S.G. cried and told
defendant she "did not want to do this, over and over again."
Next, defendant climbed on S.G., who attempted to push him off
while she cried and "made it very clear to him that [she] did not
want to have sex." Defendant then put his hand over S.G's mouth
and pushed his penis into her vagina. This continued for
approximately two minutes, with defendant's hand over S.G.'s mouth
the entire time. S.G. could not recall whether defendant
ejaculated.
When defendant finally stopped, S.G. picked up her clothes
and ran to the bathroom. Defendant followed her and apologized.
He then called one of his friends to pick S.G. up and drive her
to school since she had missed the bus.
At school, S.G. attended her first two classes. During her
second class, she reported the incident to her best friend, who
in turn reported it to the Guidance Department. The guidance
counselor contacted S.G.'s mother, who transported her to the
hospital to undergo a gynecological examination and to take samples
for a rape kit.
Gretchen Raimondo, RN, a forensic nurse certified in sexual
assault, examined S.G. Raimondo identified a "five-day window"
within which a forensic physical examination should be performed
before evidence begins to deteriorate. Thus, "hypothetically, if
a victim has had intercourse, sexual intercourse with another
individual, let's say, [thirty-six] to [forty] hours before
[examination]," evidence of that intercourse would likely still
be present. Raimondo specifically explained what S.G.'s
examination entailed. Additionally, over defense counsel's
objection, Raimondo was permitted to testify about what S.G. told
her regarding the February 7, 2011 incident. She further testified
that S.G. had no physical injuries.
The samples Raimondo collected were sent to a DNA laboratory
for testing. At trial, a forensic scientist employed by the New
Jersey State Police identified defendant as the source of the DNA
in the sperm specimens.
S.G. testified that defendant sent her a series of text
messages following the sexual assault. Among other things,
defendant stated in the messages, "I know wha[t] I did was wrong;"
"I'm sorry that was wrong;" "[d]on't tell anybody [S.G.] please;"
and "[i]f you [going to] tell anybody tell me now I'll turn myself
in now no sense [in] waiting." S.G. gave her cell phone to
Westville Patrolman Daniel Rice at the hospital on February 7,
2011. Rice accidently wrote that he logged the evidence in on
February 8, but testified this was a "typo." In conjunction with
preparing the evidence log, he prepared a handwritten record of
what he did with the evidence that was correctly dated February
7. He further testified he did not manipulate the cell phone or
look through it.
S.G. left the hospital at approximately 3:30 p.m. on February
7, 2011. She went to the Westville Police Department where she
met with Detective Eric Hibbs, articulated what happened, and gave
the police consent to keep and search her cell phone. During her
7 A-2397-14T1
interview with Hibbs, S.G. cried and "appeared to be upset" as she
recounted what had occurred. S.G. also signed a Consent to Search
form allowing the police to search "any and all messages, pictures,
phone numbers and any other data contained on the phone that may
assist in the investigation."
Hibbs "took the phone [from the evidence locker] to the
Gloucester County Prosecutor's Office . . . and turned it over to
Detective Brian Perticari, to extract possible information
relating to this investigation." After Perticari finished
retrieving the information, Hibbs returned the phone to S.G. on
February 9, 2011. Hibbs testified he merely transported the phone
to Perticari and did not manipulate the phone or view its contents.
Perticari testified he was contacted by Hibbs to examine
S.G.'s cell phone on February 9, 2011. He detailed the process
he used to extract data from the phone, which took approximately
ten minutes. He was only able to conduct a logical extraction,
which, he explained, allowed him to retrieve anything that was
active on the phone, but not deleted information. Perticari did
not sign an evidence log or prepare a report detailing the
methodology he used to extract the information from the cell phone.
Defendant testified he broke up with S.G. on February 4,
2011. They had an altercation that day, which defendant described
in part as follows:
8 A-2397-14T1
So it really was like a back-and-forth argument. I mean, it didn't really get anywhere. And as we got closer to her house, it kind of got physical, the fight. . . . .
She — I don't remember what I said to strike it off. But she like she had a hand wallet and she like hit me a couple times in the side of the ear with the wallet. . . . .
And, I don't know, my reaction, I just pulled — like I turned around and I pulled her hair. And I had gripped her up by her shoulders and like had her on the tree. But, I mean, I was more so just trying to make a point. I wasn't trying to hurt her at all. I just — it was my reaction when she was hitting me with the wallet.
He further testified that later that evening, they texted all
night and "ended up making up" and made plans to see each other
on Saturday evening at his father's house in National Park.
According to defendant, they spent Saturday night together and
engaged in consensual vaginal sex.
The next day, defendant received a text message from S.G.
terminating their relationship. Defendant attempted to win S.G.
back, but she refused and did not answer any of his text messages
or calls. Because this was not typical, he went to S.G.'s home
around 7:00 a.m. on February 7, 2011, to find out why she was
ignoring him. Upon arriving, he saw S.G. coming out the front
9 A-2397-14T1
door. S.G. told defendant she did not wish to talk to him.
Defendant testified that, although they argued for about ten
minutes, he did not put his hands on S.G., enter her house, or
have sex with her that morning. After he left, defendant attempted
to contact S.G. via a series of text messages on February 7 and
8, 2011. According to defendant, in these text messages he was
apologizing to S.G. for the physical altercation that occurred the
previous Friday.
II.
Defendant argues that the trial court erred in admitting the
text messages extracted from S.G.'s cell phone. Specifically, he
contends that the chain of custody for S.G.'s cell phone was not
sufficiently established, and that the State failed to qualify
Perticari as an expert witness. We find no merit to these
contentions.
"The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter is what its
proponent claims." N.J.R.E. 901; see also State v. Brunson, 132
N.J. 377, 393-94 (1993). "The determination of whether the State
sufficiently established the chain of custody is within the
discretion of the trial court." State v. Mosner, 407 N.J. Super.
40, 62 (App. Div. 2009). Such evidence will usually be admitted
10 A-2397-14T1
"if the court finds in reasonable probability that the evidence
has not been changed in important respects or is in substantially
the same condition as when the crime was committed." Ibid.
(citations omitted). Defects in the chain do not negate
admissibility, but go instead to the weight of the evidence. State
v. Morton, 155 N.J. 383, 446 (1998), cert. denied, 532 U.S. 931,
121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); Mosner, supra, 407 N.J.
Super. at 62.
Here, through the testimony of each officer who possessed the
cell phone, the State established an unbroken chain of custody.
The fact that the dates in the evidence log may be inconsistent
with the officers' testimony goes to the weight to be accorded the
text messages rather than their admissibility. Morton, supra, 155
N.J. at 446. Each officer who possessed the cell phone testified
who he gave it to or retrieved it from. Further, everyone who
possessed the cell phone testified it was not tampered with. Id.
at 447. Thus, the trial court properly found there was a
"reasonable probability that the evidence has not been changed in
important respects or is in substantially the same condition as
when the crime was committed." Brunson, supra, 132 N.J. at 393
94 (citations omitted).
Additionally, S.G. testified as to the general content of the
text messages she received on February 7, 2011. She noted that
11 A-2397-14T1
defendant apologized, stating: "I'm sorry. Please don't tell
anybody. I promise if you don't tell anybody, I'll leave you
alone for good." Her testimony corroborates the police testimony
that the messages were not tampered with. More importantly, on
cross-examination defendant admitted sending S.G. the text
messages on the dates and times shown. His own admission clearly
proves the reliability of the text messages. Accordingly, the
evidence was properly admitted and defendant was not unduly
prejudiced by its admission.
Defendant also argues that the State failed to qualify
Detective Perticari as an expert witness. As defense counsel did
not object when Perticari's testimony was presented, we review
defendant's argument pursuant to the plain error standard. R.
2:10-2. Under that standard, a conviction will be reversed only
if the error was "clearly capable of producing an unjust result[,]"
that is, if it was "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. Taffaro, 195 N.J. 442, 454 (2008).
Defendant must prove that a plain error was clear and obvious and
that it affected his substantial rights. State v. Chew, 150 N.J.
30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145
L. Ed. 2d 493 (1999), overruled in part on other grounds, State
v. Boretsky, 186 N.J. 271, 284 (2006). A defendant's failure to
12 A-2397-14T1
object leads to the reasonable inference that the issue was not
significant in the context of the trial. State v. Macon, 57 N.J.
325, 333 (1971).
Witnesses, including police officers, testify in a variety
of roles. A fact witness is one who testifies as to what "he or
she perceived through one or more of the senses." State v. McLean,
205 N.J. 438, 460 (2011). "Fact testimony has always consisted
of a description of what the officer did and saw[.]" Ibid.
"Testimony of that type includes no opinion, lay or expert, and
does not convey information about what the officer 'believed,'
'thought' or 'suspected,' but instead is an ordinary fact-based
recitation by a witness with first-hand knowledge." Ibid.
(citations omitted).
Expert witnesses, however, "explain the implications of
observed behaviors that would otherwise fall outside the
understanding of ordinary people on the jury." Ibid. "Expert
testimony is admissible '[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.'" State v. Simms,
224 N.J. 393, 403 (2016) (quoting N.J.R.E. 702); State v. Cain,
224 N.J. 410, 420 (2016) (quoting same). "In other words, to be
admissible, expert testimony should 'relate[] to a relevant
subject that is beyond the understanding of the average person of
13 A-2397-14T1
ordinary experience, education, and knowledge.'" State v. Sowell,
213 N.J. 89, 99 (2013) (quoting State v. Odom, 116 N.J. 65, 71
(1989)). If the matter is "within the competence of the jury,
expert testimony is not needed." Ibid.
Lay opinion testimony is governed by N.J.R.E. 701, which
permits a witness not testifying as an expert, to provide
"testimony in the form of opinions or inferences . . . if it (a)
is rationally based on the perception of the witness and (b) will
assist in understanding the witness' testimony or in determining
a fact in issue." Mclean, supra, 205 N.J. at 456 (quoting N.J.R.E.
701). Courts in New Jersey "have permitted police officers to
testify as lay witnesses, based on their personal observations and
their long experience in areas where expert testimony might
otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187,
198 (1989).
Here, Perticari was presented as a fact, not expert, witness.
He testified as to the procedure he used in retrieving the text
messages from S.G.'s cellphone. His testimony lacked opinion, lay
or expert, and did not convey what the detective believed, thought,
or suspected the text messages meant. Instead, his testimony was
a simple recitation of what he did to retrieve the information
from the cell phone.
14 A-2397-14T1
Even if Perticari's testimony fell within the scope of the
expert opinion rule because it was specialized knowledge based on
his training and experience, we find any error in its admission
to be harmless. R. 2:10-2. First, it is clear from Perticari's
testimony during the N.J.R.E. 104 hearing that he possessed
sufficient education, training, and experience to qualify as an
expert in the field of cell phone data extraction. Where a witness
possesses sufficient qualifications to have testified as an
expert, any error in allowing the lay opinion may be deemed
harmless. State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div.
1995). Second, as we have previously emphasized, defendant
admitted to sending the very same text messages that Perticari's
extraction produced.
III.
Defendant argues that the trial court's cumulative errors
deprived him of a fair trial. Specifically, he argues that the
court erred when: (1) it admitted the text messages; (2) it
questioned S.G. and then allowed the State further direct
examination before permitting cross-examination by defendant; (3)
it permitted the State to elicit hearsay testimony from the nurse;
and (4) when it included "attempt to inflict bodily injury" in its
burglary charge. The State counters that there were no errors,
let alone cumulative errors.
15 A-2397-14T1
Our case law recognizes that a "defendant is entitled to a
fair trial, but not a perfect one." State v. Wakefield, 190 N.J.
397, 537 (2007) (quoting State v. R.B., 183 N.J. 308, 333-34
(2005)). Nonetheless, when legal errors cumulatively render a
trial unfair, the Constitution requires a new trial. State v.
Orecchio, 16 N.J. 125, 129 (1954). "[W]here any one of several
errors assigned would not in itself be sufficient to warrant a
reversal, yet if all of them taken together justify the conclusion
that defendant was not accorded a fair trial, it becomes the duty
of this court to reverse." Id. at 134 (citations omitted).
Having reviewed the record, we find no evidence of error,
either standing alone or cumulatively, which would warrant
reversal of defendant's convictions. First, for the reasons
previously stated, the court did not err in admitting the text
messages. Second, we discern no error in the three short questions
the trial judge posed to S.G. at the end of her initial direct
examination. N.J.R.E. 614 specifically allows judges to call or
question witnesses "in accordance with law and subject to the
right of a party to make timely objection." "Under our case law,
it is entirely proper for judges to ask witnesses questions to
clarify their testimony." Taffaro, supra, 195 N.J. at 450-51.
Here, contrary to defendant's argument, the judge's questions did
not suggest he was taking the State's side. The questions were
16 A-2397-14T1
intended to clarify S.G.'s testimony on direct examination, which
is permissible. Ibid.
Third, the court did not err in charging defendant with
"attempt to inflict bodily injury" in its burglary charge, even
though attempt was not specifically referenced in the language of
the indictment. Defendant was on notice that he was being charged
with second-degree burglary. See N.J.S.A. 2C:18-2 (providing
that: "Burglary is a crime of the second degree if in the course
of committing the offense, the actor: (1) Purposely, knowingly or
recklessly inflicts, attempts to inflict or threatens to inflict
bodily injury on anyone[.]"). Equally important, defendant's
acquittal on the burglary charge moots his contention that he was
prejudiced by the inclusion of this language in the jury charge.
Finally, defendant contends the court erred in permitting the
nurse to testify as to specific facts S.G. shared with her about
the sexual assault. The State in turn argues that the challenged
evidence falls within the scope of N.J.R.E. 803(c)(4), which
excludes from the hearsay rule:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
17 A-2397-14T1
The N.J.R.E. 803(c)(4) hearsay exception does not apply in
cases where the purpose of the examination is to gather evidence.
State in the Interest of C.A., 201 N.J. Super. 28, 33 (App. Div.
1985). Defendant contends that S.G. was transported to the
hospital to undergo gynecological exams and take samples for a
rape kit. Thus, the purpose of her visit was to gather evidence,
rendering any hearsay statements inadmissible. The State responds
that the primary purpose of the examination was to provide medical
treatment to S.G., and that any evidence gathering was ancillary.
Even if we accept defendant's interpretation, we conclude that any
error in the admission of the nurse's testimony was harmless
because S.G. testified to the events leading up to and during the
sexual assault. The nurse's testimony was only a recitation of
S.G.'s earlier testimony, and did not deprive defendant of a fair
trial.
IV.
Defendant argues that the court's failure to find mitigating
factor eleven resulted in an excessive sentence. Defendant
contends that he should have been sentenced as a third-degree
offender to a three-year prison sentence.
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence imposed which is not manifestly excessive or
18 A-2397-14T1
unduly punitive, does not constitute an abuse of discretion, and
does not shock the judicial conscience. State v. O'Donnell, 117
N.J. 210, 215-16, 220 (1989). In sentencing, the trial court
"first must identify any relevant aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the
case." State v. Case, 220 N.J. 49, 64 (2014). The court must
then "determine which factors are supported by a preponderance of
[the] evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." O'Donnell, supra, 117 N.J.
at 215. We are "bound to affirm a sentence, even if [we] would
have arrived at a different result, as long as the trial court
properly identifie[d] and balance[d] aggravating and mitigating
factors that [were] supported by competent credible evidence in
the record." Ibid.
Here, the judge provided an adequate factual basis for finding
aggravating factors three, six, and nine, and mitigating factor
eight. See Case, supra, 220 N.J. at 66 (citing State v. Fuentes,
217 N.J. 57, 73 (2014) (noting that a sentencing court must state
a factual basis supporting a finding of particular aggravating or
mitigating factors affecting the sentence)). The judge expressly
considered mitigating factor eleven, but declined to apply it.
Although the judge "underst[ood] for sure a hardship upon []
defendant being away from his family," he also noted that defendant
19 A-2397-14T1
had been unemployed for a year and there was no indication he was
supporting his one-year-old child. Accordingly, the judge found
defendant failed to establish an "excessive hardship."
Mitigating factor eleven applies where "imprisonment of the
defendant would entail excessive hardship to himself or his
dependents." N.J.S.A. 2C:44-1(b)(11). However, our Supreme Court
has made clear that the mere fact that a defendant has children
does not require a trial court to find mitigating factor eleven.
State v. Dalziel, 182 N.J. 494, 505 (2005). Instead, a defendant
must demonstrate that the children are dependents who will suffer
an excessive hardship if the defendant is incarcerated. Ibid.
Defendant failed to do so here, as the trial judge correctly
concluded.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of STATE OF NEW JERSEY v. DAJON G. LESTER?
The outcome was: We thus find no reason to second-guess the trial court'sapplication of the sentencing factors. Defendant's five-year prison term is at the lowest end of the second-degree sentencing range. In sum, the sentence imposed was manifestly appropriate and by no means shocks our judicial conscience. Affirmed.
Which court heard STATE OF NEW JERSEY v. DAJON G. LESTER?
This case was heard in SUPERIOR COURT OF NEW JERSEY, NJ. The presiding judge was Greta Gooden Brown.
Who were the attorneys in STATE OF NEW JERSEY v. DAJON G. LESTER?
Plaintiff's attorney: Christopher S. Porrino, Attorney General, Lila B. Leonard, Deputy Attorney General. Defendant's attorney: Jennifer Gottschalk.
When was STATE OF NEW JERSEY v. DAJON G. LESTER decided?
This case was decided on February 18, 2017.