NJ Supreme Court Decision State v. Santamaria Procedural Issue: Standard of review for a trial error when the defense fails to make an objection at the time of trial but raises the issue on appeal

State v. Santamaria NJ Supreme Court Decision January 28, 2019

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

Facts: Former middle school teacher Guillermo Santamaria was tried and convicted of aggravated sexual assault and official misconduct for his sexual relationship with a student at his school from the time she was fourteen. In this appeal we consider whether the trial court’s admission of some sixty-five photographs — approximately fourteen of which were sexually graphic — amounted to plain error. Additionally, we examine whether the State committed reversible error in its summation by commenting on defendant’s silence when the victim, H.B., accused him of having had sexual relations with her while she was a minor on multiple occasions over many years.

The Appellate Division reversed defendant’s convictions and remanded the matter for a new trial. The panel found that, although defendant did not object to the admission of the photographs, the trial court should have excluded them sua sponte as cumulative and unduly prejudicial under N.J.R.E. 403 and as other-crime evidence or bad acts under N.J.R.E. 404(b). The panel also offered guidance for retrial, demonstrating support for defendant’s argument that the State improperly commented on his silence during a recorded conversation with H.B.

We now reverse the Appellate Division’s judgment ordering a new trial. We find neither error in the admission of the photographs under N.J.R.E. 403 nor reversible error concerning the prosecutor’s closing comments regarding the defendant’s silence when H.B. made her recorded accusations. We nevertheless remind trial courts to be attentive to their gatekeeping function as they curate the admission of evidence.

  1. FACTS

We elicit the facts from the record, including the trial testimony. In 1997, thirteen-year-old eighth grader H.B. met forty-three-year-old defendant at the McGinnis Middle School in Perth Amboy, where he was employed as a science teacher. Defendant introduced himself as “the neighboring science teacher.” They spoke several times a week by telephone and later added instant messaging. H.B. confessed to having problems with her parents at home. In the spring of 1998, defendant encouraged H.B. to enroll in his twice- weekly Greek and Latin course. The class met regularly at the school and once at defendant’s home in Perth Amboy. When H.B. graduated from middle school in June 1998, their communications continued, becoming more intimate. She viewed it as the equivalent of a dating relationship. They met often at a local park and in June or July 1998, they kissed “passionately” for the first time.

Shortly after her fourteenth birthday, H.B. met the defendant in the park. Defendant told her to lift up her skirt and warned that “this is going to hurt a little bit, but this is good for you.” He then engaged in vaginal intercourse with her. The pattern continued as H.B. entered high school. She described the relationship as dominant-submissive, with the defendant in the dominant role.

At the same time, defendant was in a sexual relationship with a fellow teacher. In H.B.’s senior year, the teacher discovered in defendant’s email account a photo of H.B. wearing what appeared to be a bikini top sitting in defendant’s car. She reported it to the then-named Division of Youth and Family Services (DYFS). Both defendant and H.B. denied any impropriety, causing DYFS to send a letter to H.B.’s mother indicating that they had done an investigation and found no basis for allegations of illicit sexual contact.

H.B. started college in the fall of 2002. Her liaisons with the defendant continued while she was in college. Their relationship became tense. He quizzed her on whether she was dating anyone and what she was doing in her free time. He occasionally visited her at her college. While on break, H.B. returned home and visited her old middle school to see her former teachers. She found defendant in his classroom and ultimately performed oral sex on him in an adjoining room. During winter break from college, H.B.’s mother saw an email from the defendant asking H.B. if she was prepared to submit to him in the ways he wanted and whether she was open to a future with him. At that time, H.B. did not confide in her parents the nature and extent of her relationship with defendant.

In 2009, H.B. called a family meeting with her parents and her siblings. She told them about her relationship with defendant but did not want to bring charges against him at that time. Approximately one year later, H.B. contacted a detective at the Middlesex County Prosecutor’s Office with her information about the defendant. In addition to conducting numerous interviews, the detective obtained authorization to record conversations between defendant and H.B.

With the detective’s help, H.B. scheduled a dinner with the defendant. She wore a hidden recording device to capture their conversation. At dinner, she questioned defendant about why he started the relationship with her when she was fourteen instead of when she was nineteen. She pointedly asked him, “How could you rape a fourteen-year-old?” Defendant made no admissions or denials; instead he steered the conversation away from the accusations.

In addition to the recorded evidence, defendant’s ex-wife turned over a CD of approximately sixty-five photos that she had found in her yard in 2002. The CD’s contents ranged from hardcore photos of sexual acts between defendant and H.B. to suggestive pictures of H.B. in various states of undress. The detective also interviewed H.B.’s parents, defendant’s co-workers, defendant’s former girlfriends, defendant’s ex-wife, and several other parties.

Defendant was arrested three days after the recorded dinner with H.B. On October 1, 2010, a Middlesex County grand jury indicted defendant on one count of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14- 2(a); two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14- 2(c); and two counts of official misconduct, contrary to N.J.S.A. 2C:30-2.

  1.  The Photos

Before trial began, the prosecution, defense counsel, and the court collaborated on a questionnaire for potential jurors, including a question about the photographs: “During the trial there may be sexually graphic images displayed. Would that affect your ability to be fair and impartial? Why or why not?” Only those jurors who stated they would be impartial remained part of the jury selection process.

The trial judge offered to hold an N.J.R.E. 104 hearing without the jury to determine the admissibility of the photos on the CD found in the grass outside of defendant’s home. Neither side took the judge up on his offer. While marking the photos, the judge again asked if there were any objections. And again, defense counsel did not object to admitting the photos into evidence, embracing their admission. The parties agreed that the photos were all taken shortly after H.B. turned eighteen.

The prosecution and defense each referenced the photos during the trial to support their respective theories of the case. Defendant argued primarily that he and eighteen-year-old H.B. had a consensual adult relationship. Defense counsel opened and closed on the photos. He urged the jury to view them as exhibiting nothing more than the actions of two consenting adults. He attempted to undercut H.B.’s testimony, saying defendant had been “ambushed about a past that never happened.”

The State argued that it is not credible that H.B. would have consented to pose for such a broad array of photos in so new of a relationship. Instead, according to the State, the photos were evidence of a long sexual relationship that substantially predated H.B.’s eighteenth birthday.

To underscore this argument, the prosecutor reviewed during summation before the jury the conversation recorded at the restaurant. She highlighted H.B.’s accusation that defendant had raped her when she was fourteen, noting that defendant did not respond to the accusation. We never hear from [defendant], “What are you talking about?” Yes, that’s what you should expect. That’s exactly what you should expect. But what you got was this: What you got was every time [H.B.] brought up high school, he told — he tried to distract her, “Oh, you’re gorgeous. Let’s talk about something else.” Controlling the conversation away from — because he doesn’t know why she’s there and, in fact, he said, “We’ll talk about this when I have some trust in you.” This is not a stupid man, ladies and gentlemen.


He can’t deny it, ladies and gentlemen, that’s why he doesn’t deny it in that taped statement.


He said, . . . after she confronted him, “why did you have sex with me when I was fourteen?”

“Oh, your memory is much better than mine.” Now, all of a sudden, he doesn’t remember. That’s convenient.


But what you should expect there . . . that’s what you should expect, him saying, “What are you talking about?” No. Instead you got a whole bunch, “Don’t look at that, let’s talk about this.”

The jury found defendant guilty of all counts. C.

Defendant appealed from his convictions, challenging, among other things, the admission of the photographs and the prosecutor’s references to his silence during summation. After reversing as to one count of official misconduct that it found beyond the statute of limitations, the panel reversed defendant’s other convictions because it found the admission of the photographs to be reversible error.

The Appellate Division found the photographs to be of marginal probative value and relevance under N.J.R.E. 401 because they were taken after H.B. had turned eighteen years old. Although it noted that the photos “were logically connected to whether [defendant and H.B.] previously had a sexual relationship when H.B. was underage,” the panel concluded that the photos’ minimal probative value was substantially outweighed by the risk of undue prejudice and constituted the needless presentation of cumulative inflammatory evidence. The panel also determined the photos were too attenuated from the allegations of underage sex because they were taken “at least several weeks, if not years, after the alleged crimes occurred.”

The Appellate Division concluded the photos of a nude eighteen-year- old engaged in various sexual acts with the defendant, a man thirty years her senior, were potentially inflammatory and stressed that H.B. was asked to identify herself and defendant in the pictures and to identify the defendant’s penis and her vagina. Applying N.J.R.E. 403, the panel expressed concern about the likelihood that the photos could divert the jurors from a proper evaluation of guilt or innocence. The panel also made findings under N.J.R.E. 404(b) and concluded that the photos were not “intrinsically relevant” because they did not prove that defendant had sex with H.B. while she was underage. The panel concluded the photos should have been excluded from evidence under N.J.R.E. 404(b) “because they were not admissible as intrinsic evidence.”

Because the panel reversed defendant’s convictions, it did not need to reach the comments made by the prosecutor during her summation. The panel nonetheless admonished that prosecutors should “avoid comments that invade the rights bestowed on defendants, including the right to remain silent.” (citing State v. Muhammad, 182 N.J. 551, 568-69 (2005)).

After the Appellate Division rendered its decision, the State filed a motion for reconsideration, contending that the panel may not have had copies of the photographs challenged on appeal and, therefore, found prejudice from the graphic nature of the photos “without having seen them.” The Appellate Division denied the motion.

On the heels of the denial of the reconsideration motion, the State filed a petition for certification which we granted. 232 N.J. 153 (2018). Defendant cross-petitioned. We granted defendant’s petition as well, limited to the two issues outlined above. 232 N.J. 295 (2018).

Procedural Issues:

III.   Trial Strategy

If a defendant, as here, does not object or otherwise preserve an issue for appeal at the trial court level, we review the issue for plain error. R. 2:10-2. We must disregard any unchallenged errors or omissions unless they are “clearly capable of producing an unjust result.” Ibid.

Plain error is a high bar and constitutes “error not properly preserved for appeal but of a magnitude dictating appellate consideration.” State v. Bueso, 225 N.J. 193, 202 (2016) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 2:10-2 (2016)). The “high standard” used in plain error analysis “provides a strong incentive for counsel to interpose a timely objection, enabling the trial court to forestall or correct a potential error.” Id. at 203.

The key ruling here regarding the defendant’s failure to raise the objection to the photos at trial can be boiled down to this key point: “A defendant who does not raise an issue before a trial court bears the burden of establishing that the trial court’s actions constituted plain error” because “‘to rerun a trial when the error could easily have been cured on request[] would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.’” State v. Ross, 229 N.J. 389, 407 (2017) (quoting State v. Weston, 222 N.J. 277, 294-95 (2015)).

The admission of all the photographs was raised for the first time on appeal by defendant. We reverse only if any error was “clearly capable of producing an unjust result.” R. 2:10-2. The same standard applies to our review of the prosecutor’s remarks during summation, to which defense counsel did not object.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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