STATE OF NEW JERSEY VS. EDWARD A. GAJDEROWICZÂ (14-03-0163, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-0482-15T4
| N.J. Super. Ct. App. Div. | Aug 15, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0482-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD A. GAJDEROWICZ,
Defendant-Appellant.
________________________________________________________________
Submitted April 4, 2017 – Decided August 15, 2017
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 14-03-0163.
Joseph E. Krakora, Public Defender, attorney
for appellant (Tamar Y. Lerer, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Alexis R.
Agre, Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant appeals from his conviction for second-degree
attempted luring, N.J.S.A. 2C:13-6, of fourteen-year-old S.D. We
affirm.
I.
The facts underlying the offense begin in February 2013, when
defendant, then twenty-one-years old, had contact with fourteen-
year-old S.D. through a web game called Ruzzle. This was not the
first interaction between defendant and S.D. They became friends
on Facebook approximately two months earlier. S.D.1 did not know
defendant personally but knew his brother, a fellow freshman in
her high school class. S.D.'s mother, A.R., testified she sent
defendant a message from her own Facebook account in December
2012, instructing him to delete her daughter as a friend and not
to communicate with S.D. again or she would go to the police.
Ruzzle has a chat function that permits players to chat while
playing the game. In February 2013, she began to chat with
defendant through this chat function. At her mother's request,
S.D. asked defendant how old he was. This exchange followed:
Defendant: I'm 21. U
S.D.: 14
Defendant: Oh. You don’t look 14
1
S.D. was called as a witness for the defense and added little
to the evidence.
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S.D.: LOL. Do you know Paul [E].
Defendant: I don’t think so. You wanna
just text, LOL
S.D.: What's your number
Defendant: 856-535-XXXX, just make sure
you put your name so [I know]
who it is
S.D.: LOL again, I'm only 14, you
don’t care?
Defendant responded, "Not unless you try to get me in trouble and
you don’t care that I'm 21." After this exchange, S.D. had no
further contact with defendant. She did not play Ruzzle with him
again and did not text him.
A.R., S.D.'s mother, testified that S.D. came to her on the
evening of February 5, 2013, and told her that a man was trying
to contact her through Ruzzle. S.D. said, "I don’t want to deal
with it. I told him I'm 14 years old and he still wants me to
contact him."
A.R. reviewed the chat exchanges and then used her cell phone
to text defendant at the number he had provided. She did not
identify herself, only opening the exchange with "Hey." A.R.
testified defendant believed she was S.D. and began "communicating
as a friendly chat at first." The issue of age came up again,
with defendant stating he was twenty-one and "S.D." (A.R.) stating
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she was fourteen. Defendant did not give his name but sent her
three or four pictures of himself.
Defendant started texting A.R.'s phone the following morning.
There was an exchange of text messages that day that included
defendant's question, "Do you have a problem with my age." Posing
as S.D., A.R. replied, "no, but my mom would. LOL." In text
messages that followed, defendant cautioned, "Like never say to
anyone how old I am . . . and . . . make sure nobody would find
out who would tell," "people who can get me in trouble." A.R.
responded, "Told you I was 14. You're 21. Why would you get in
trouble." Defendant answered, "under age," and then, "never mind.
Just don’t let your mom or hardly anyone know, LOL."
The continuing text messages include:
Defendant: What's the oldest guy you
dated?
A.R.: 16
Defendant: How many guys have you slept
with?
A.R.: One, Y?
Defendant: Just asking questions.
A.R.: How many younger girls have you
been with?
Defendant: Send me some pix
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Defendant eventually answered, "two" younger girls and gave
their ages as 16 and 17. He asked again for pictures and A.R.
responded, "You know what I look like," referring to the fact that
defendant had "friended" S.D. on Facebook two months earlier.
Later in the afternoon, at a time when S.D. would be home
from school, defendant sent a text suggesting, "maybe we can meet
up or something." At that point, A.R. decided to go to the police.
She was concerned because she had told defendant several times
that she was underage. She texted to defendant, "I have to wait
till my mom leaves." He asked, "where's a good spot," and when
A.R. asked him to pick, he selected a restaurant within walking
distance of her house. He followed that with texts, "how long we
have to hang out," and "or should I say how long can you stay
out."
On the following day, A.R. kept S.D. home from school and
returned to the police department. She continued to exchange text
messages with defendant.
In the text exchanges, defendant asked why "S.D." had cut
school. A.R. replied, "you wanted to meet up and I couldn’t last
night. I thought we were gonna have fun." When defendant asked,
"what kind of fun do you want," she said, "you asked me how many
people I slept with, I thought that's what you meant by fun-ness."
Defendant asked, "well do you want to?" "S.D." suggested meeting
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at the benches across from the library and that they could go to
her house because her mother was at work. Defendant asked her,
"prove to me that you want it." When she asked how she could
prove it, he said, "send me a pic." She asked what he wanted to
see. He replied, "everything." When she replied "LOL, in person,"
he asked for "Pic of your pussy then." She answered that he would
"see it soon enough."
Defendant was arrested at the designated meeting spot and
returned to the Medford Police Department. After receiving
Miranda2 warnings from Detective William Knecht, he agreed to speak
with police. Defendant maintained he intended to meet with S.D.
to warn her of the dangers of communicating and meeting with
persons she met online and that he had no intention to have sex
with her. He stated he brought his dog to the meeting, knowing
she was allergic to dogs, because he did not plan to be alone with
her. The videotaped interview was played for the jurors.
Defendant elected not to testify at trial. His girlfriend,
with whom he has a child, testified and gave her opinion that he
is a truthful person.
2
Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966).
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Defendant presents the following arguments for our
consideration in his appeal:
POINT I
THE TRIAL COURT'S FAILURE TO ISSUE
ANY PRELIMINARY CHARGE TO THE JURY
ON FUNDAMENTAL LEGAL PRINCIPLES,
COMBINED WITH THE STATE'S
MISSTATEMENT OF THE LAW LESSENING
ITS OWN BURDEN OF PROOF, DEPRIVED
DEFENDANT OF DUE PROCESS AND A FAIR
TRIAL AND NECESSITATES REVERSAL OF
HIS CONVICTION. (NOT RAISED BELOW).
POINT II
THE POLICE OFFICER'S LAY OPINION
TESTIMONY THAT HE BELIEVED THAT THE
DEFENDANT HAD THE INTENT NECESSARY
TO COMMIT THE CHARGED OFFENSE AND
HAD IN FACT COMMITTED THE OFFENSE
WAS INADMISSIBLE AND NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTION.
(NOT RAISED BELOW).
"The jurisdiction of appellate courts rightly is bounded by
the proofs and objections critically explored on the record before
the trial court by the parties themselves." State v. Robinson,
200 N.J. 1, 19 (2009). Because both arguments are raised for the first time on appeal, our review is limited to "a search for plain error," State v. Nesbitt,185 N.J. 504
, 516 (2006), that is, an
error that is "clearly capable of producing an unjust result," R.
2:10-2. After reviewing defendant's arguments in light of the
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record and applicable legal principles, we conclude neither
alleged error was clearly capable of producing an unjust result.
II.
After the jury was sworn, the trial judge provided them with
preliminary instructions that did not cover all the topics included
in the Model Criminal Jury Charge, "Instructions After Jury is
Sworn" (2012). Defendant argues the trial judge committed plain
error in failing to instruct the jury on the presumption of
innocence and the burden of proof and that this error was
exacerbated by alleged misstatements by the State in its opening
statement.
In his opening statement, the prosecutor discussed the
presumption of innocence, describing it as "vital to our system"
and that he expected the jurors to adhere to their oath. He also
said there was a "flip side," that the jurors had "promised to
give the State a fair shake" and were required to give "a fair
shake" to both the defendant and the State. There was no objection
to this statement and no argument is presented on appeal that
defendant was prejudiced by this comment. Still, defendant
contends the prosecutor's comment left the erroneous impression
that the jury had to apply the same burden to both the State and
the defendant.
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There was no objection to the preliminary instructions given
and defendant concedes the trial court's final charge included
appropriate instructions regarding the presumption of innocence
and the State's burden to prove guilt beyond a reasonable doubt.
[M]odel jury charges should be followed and
read in their entirety to the jury. The
process by which model jury charges are
adopted in this State is comprehensive and
thorough; our model jury charges are reviewed
and refined by experienced jurists and
lawyers.
[State v. R.B., 183 N.J. 308, 325 (2005).]
We do not condone the trial court's failure to give the jury
the entire preliminary instruction before commencing the trial.
But, we note the failures to object to either the preliminary
charge or the prosecutor's opening statement strongly suggest that
defense counsel did not perceive any prejudice at the time. State
v. Docaj, 407 N.J. Super. 352, 370 (App. Div.), certif. denied,200 N.J. 370
(2009).
When a jury instruction is challenged on appeal, we do not
look at the challenged portion in isolation; rather, we examine
the charge "as a whole to determine its overall effect," and
"whether the challenged language was misleading or ambiguous."
State v. McKinney, 223 N.J. 475, 494 (2015) (citations omitted).
When, as here, there has been no objection, the error must be
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"clearly capable of producing an unjust result," R. 2:10-2, to
warrant reversal.
In the context of jury instructions, plain
error is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant and sufficiently
grievous to justify notice by the reviewing
court and to convince the court that of itself
the error possessed a clear capacity to bring
about an unjust result."
[State v. Camacho, 218 N.J. 533, 554 (2014)
(quoting State v. Adams, 194 N.J. 186, 207
(2008)).]
In light of the fact that appropriate instructions were given
to the jury before they began their deliberations and the
compelling evidence of defendant's guilt, the omissions in the
preliminary charge were not clearly capable of producing an unjust
result. R. 2:10-2.
III.
Defendant next argues his conviction must be reversed because
Detective Knecht gave impermissible opinion testimony regarding
defendant's state of mind and guilt. We disagree.
Knecht testified about his role in the investigation and,
during the course of his testimony, read the text messages
exchanged between defendant and "S.D." As we have described,
those messages included statements that S.D. was fourteen-years-
old; that they were meeting to have "fun" at her mother's house;
10 A-0482-15T4
that "fun" was having sex and defendant's request that "S.D."
prove she intended to do so by sending him a photo of her, naked,
or of her genital area.
The prosecutor questioned Knecht about the "plan" that
culminated in defendant's arrest in relevant part as follows:
Q. Okay. You start talking about this, about
a potential meeting, right. Why don’t
you explain . . . what your plan is, how
this is going to be set up and what steps
you and the other officers take.
A. Yes, sir. Basically he believes he's
meeting with a 14 year old girl in a park
to then go back to her house for the
purpose of engaging in sexual activity
based on the text messages.
Knecht then proceeded to explain why the location was chosen
and where the officers were located to conduct surveillance and
effect the arrest. There was no objection to this testimony.
The second portion of Knecht's testimony challenged on appeal
relates to questioning about defendant's repeated offers to
"partner up" with the police to assist them in investigating
matters like the one he was charged with. When asked on re-direct
examination if defendant had ever reached out to the police to
report suspicious activity, Knecht said he had never done so.
Defense counsel followed up on this on re-cross-examination,
asking Knecht about defendant's offer to partner up with the
police: "That was a very simple-minded childlike account of a view
11 A-0482-15T4
of life on his part, don’t you think?" The assistant prosecutor
objected to the question as an effort to ask the detective "to
give an opinion about the defendant's either mental state or
understanding or learning." Defense counsel stated,
I'm just asking him how he felt. He was the
one who conducted the interview for two hours
and spoke with [defendant] for two hours.
The trial judge overruled the objection and re-cross-
examination continued:
A. My opinion of [defendant] in that
interview is that he was articulate. He
was, you know, he was able to understand
the questions and come up with some form
of answer. I believe that partnering –
Q. Excuse me one minute. My question as
very specific. Do you believe in your
opinion in that two hour conversation the
account about what [the assistant
prosecutor] calls partnering up with your
police force was a simple-minded
childlike account of life?
A. No, I do not believe that.
[(Emphasis added).]
This colloquy was immediately followed by further direct
examination:
Q. What do you believe when we talk about
or the defendant talked about this
partnering up? What do you believe that
to be?
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A. What I believe that to be was a person
who was caught committing a crime, failed
attempt to explain it away.
[(Emphasis added).]
There was no objection to this testimony, either.
It is a well-established principle that a witness, whether
expert or lay, may not offer an opinion as to the defendant's
guilt or state of mind. See, e.g., State v. Sowell, 213 N.J. 89, 103-104 (2013); State v. McLean,205 N.J. 438
, 443, 463 (2011) (reversing the defendant's possession-with-intent-to-distribute convictions because a police officer, based on his surveillance observations of the defendant handing an item to an individual in exchange for money, gave opinion testimony that a narcotics transaction had occurred); cf. State v. Cain,224 N.J. 410
, 429
(2016) ("[A]n expert witness may not opine on the defendant's
state of mind.") However, even if improper expert testimony is
elicited, a reversal of defendant's conviction is warranted only
if that testimony was sufficiently prejudicial to have the capacity
to bring about an unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006); State v. Thompson,405 N.J. Super. 76
, 81 (App.
Div. 2009).
Although both challenged sections of Detective Knecht's
testimony include his opinion of what defendant believed, we find
no grounds for reversal. The first segment of challenged testimony
13 A-0482-15T4
followed a review of the incriminating statements defendant
admitted making in his text messages. It is certainly true that
the detective should not have prefaced his description of the
police plan with the remark, "Basically he believes he's meeting
with a 14 year old girl . . . ." But the damage from this is
negligible since defendant's admitted statements in the text
messages so strongly support that conclusion and there is no
suggestion that the detective had superior knowledge based on his
employment to decipher the import of those statements.
Turning to the second challenged segment of testimony, again,
we agree the prosecutor should not have asked the detective what
he believed regarding the defendant's proffers of assistance. The
prosecutor was well aware, based on his own objection, that it was
improper to delve into opinion testimony about defendant's state
of mind.
But, we must add, this is a case for application of the
invited error doctrine. "Under that settled principle of law,
trial errors that 'were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for
reversal on appeal. . . .'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro,107 N.J. 339
, 345 (1987)
(alteration in original)). "In other words, if a party has
'invited' the error, he is barred from raising an objection for
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the first time on appeal." Ibid. (citing N.J. Div. of Youth & Family Servs. v. M.C. III,201 N.J. 328
, 342 (2010)).
Defendant explicitly asked Detective Knecht for his opinion
regarding defendant's offer to partner up with the police, asking
him to affirm her characterization that it was a simple-minded,
childlike statement. When the prosecutor objected, she explained
that she was "asking him how he felt" because Knecht "was the one
who conducted the interview for two hours and spoke with
[defendant] for two hours." The trial judge then ruled in her
favor, overruling the objection. The challenged testimony was
elicited immediately thereafter, an error that was plainly
"invited" by defense counsel's successful effort to elicit the
detective's opinion about defendant's state of mind.
In addition, as we have noted, the evidence of defendant's
guilt, most of which emanated from his own admitted statements,
was compelling. We discern no reason to disturb his conviction.
Affirmed.
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