APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASEEM ABDUL MUHAMMED,
Defendant-Appellant.
___________________________________
Submitted January 5, 2004 - Decided January 30, 2004
Before Judges Havey, Fall and Parrillo.
On appeal before the Superior Court of
New Jersey, Law Division, Passaic County,
Indictment No. 00-03-0314I.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Gregory R. Mueller,
Designated Counsel, and on the brief).
James F. Avigliano, Passaic County Prosecutor,
attorney for respondent (Terry Bogorad, Senior
Assistant Prosecutor, of counsel, and on the
brief).
The opinion of the court was delivered by
PARRILLO, J.A.D.
Defendant Naseem Abdul Muhammed was charged in a Passaic County indictment with first-degree
kidnapping, N.J.S.A. 2C:13-1(b)(1) (count 1); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count 2);
and third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count 3). Tried to a jury,
defendant was acquitted of all three charges but found guilty of the lesser-included
offense of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The jury deadlocked on the
lesser-included charge of second-degree kidnapping, N.J.S.A.
2C:13-1(c), which was ultimately dismissed by the trial judge. On the criminal sexual
contact conviction, defendant was sentenced to an eighteen-month term. Appropriate fees and penalties
were also imposed.
There were differing versions of the encounter between defendant and M.M. from which
the criminal charges against defendant arose. According to the State's proofs, on December
22, 1999, at approximately 11:30 p.m., M.M. was walking near the corner of
Ellison Place and East 22nd Street in Paterson, an area known for being
frequented by prostitutes. M.M. was walking home from a cousin's house when she
noticed a vehicle slowly approaching from behind. The vehicle pulled in front of
M.M. and defendant exited. He showed M.M. a badge and identification card, claimed
to be a Paterson police officer, and informed her that she was under
arrest for prostitution. Actually, defendant had been a police officer for the City
of Passaic for about fifteen years but was terminated from service one month
prior to this incident and at the time was challenging his termination. In
any event, M.M. denied being a prostitute and explained that she was just
walking to her home a few blocks away. Nevertheless, M.M. complied with defendant's
command to get into the back seat of his unmarked Nissan Maxima because
she was "taught to trust the police" and believed that she had no
other choice.
Defendant, who was drinking beer, drove to a secluded, dead-end street in the
area of East 25th Street and 17th Avenue in Paterson, where he parked.
Defendant asked M.M. if she had a condom and told her that if
she would "do [him] right" he would let her go. Defendant then climbed
into the back seat, put on a condom, and forced M.M. to perform
fellatio on him. Five minutes later, defendant told M.M. to remove her clothes.
When she refused, he pulled them off of her himself, turned her over
onto her stomach and had vaginal sex with her for approximately fifteen to
twenty minutes.
When he was finished, defendant took the condom off and wrapped it in
a napkin and threw it on the floor. He then dressed and returned
to the front seat of the car, while M.M. picked up the condom
and placed it in her pocket. M.M. refused the $4 defendant offered to
pay her, and declined to move into the front seat as defendant requested
because she was afraid that he would drive away and leave her "standing
there looking stupid."
Rather than get out of the car and run away, M.M. instead insisted
that defendant drive her to the Paterson police station as he had originally
threatened. Even when defendant told her she could get out, M.M. refused to
leave and again insisted that defendant take her to the police station. Defendant
drove away and while he and M.M. traveled through Paterson, he repeatedly pulled
to the side of the road and asked M.M. to move up to
the car's front seat, but each time she declined. Finally, at approximately 1:15
a.m. they arrived at the Paterson police headquarters.
Defendant identified himself to the officer at the desk, Sergeant Alexander DeLuccia, as
a Passaic police officer and displayed a badge that DeLuccia recognized as similar
to those carried by Passaic police officers. Defendant began to speak to Sergeant
DeLuccia when M.M. interrupted and said that defendant had forced her to have
sex with him. Defendant then explained that he had ordered M.M. into his
car in order to confront her about her harassment of his brother and
sister and to convince her to stop. After hearing defendant's version, Sergeant DeLuccia
asked M.M. for her account and she repeated that defendant had ordered her
into his car after identifying himself as a police officer, took her to
a secluded location, and forced her to have sex with him. Following the
assault, she refused to exit the vehicle and insisted that defendant take her
to the police station. M.M. then produced a paper towel containing the condom
that she claimed defendant had worn during the sexual assault.
According to Sergeant DeLuccia, defendant became nervous and upset at that point and
stated that he wanted to go home, that he was married and lived
in Passaic with his wife. Sergeant DeLuccia responded that defendant was not free
to leave and that the incident had to be investigated, at which time
another Paterson police officer moved into position near defendant. Defendant and M.M. were
then separated. Defendant was read the Miranda
See footnote 1 warnings, and was subsequently arrested.
Despite his initial account of the incident to the police, defendant did not
testify at trial but suggested, through counsel, that M.M. was a prostitute and
that any sexual relations between the two were consensual. As noted, the jury
acquitted defendant of all charges in the indictment but convicted him of the
lesser-included offense of criminal sexual contact.
On appeal, defendant raises the following issues for our consideration:
I. THE PROSECUTOR'S REPEATED COMMENTS ON SILENCE WERE INAPPROPRIATE AND INFRINGED ON DEFENDANT'S RIGHT
AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND STATE LAW.
II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE COURT ADMITTED NUMEROUS STATEMENTS FROM THE
DEFENDANT WITHOUT CONDUCTING A RULE 104 HEARING, AND FAILED TO PROVIED REQUIRED INSTRUCTIONS
TO THE JURY.
III. DEFENDANT'S CONVICTION FOR FOURTH DEGREE CRIMINAL SEXUAL CONTACT SHOULD BE REVERSED BECAUSE THAT
CHARGE SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED
OFFENSE UNDER THE FACTS OF THIS CASE.
IV. THE SENTENCE IMPOSED WAS EXCESSIVE AND THE SENTENCING JUDGE USED IMPROPER FACTORS TO
OVERCOME THE PRESUMPTION AGAINST IMPRISONMENT.
V. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
We conclude that the issues raised in Points I and III are meritorious
and warrant reversal of defendant's conviction.
Defendant's principal contention is that the prosecutor's repeated references over defense objections to defendant's failure to offer the version of events suggested at trial - namely that M.M. was a prostitute with whom he engaged in consensual sex - at the time of his original account to the police and while in custody infringed on his Fifth Amendment right against self-incrimination and New Jersey's common law and statutory counterpart of that privilege. We agree and also find, as a matter of basic evidence law, that such comments were not relevant and unduly prejudicial.
The prosecutor's comments on opening, on examination of Sergeant DeLuccia, and on summation, which were the subject of defense objection below and are now challenged on this appeal, are as follows. In his opening statement, the prosecutor stated:
When [defendant is at the police department] he explains how it is that he and [M.M.] came together that night and he doesn't say that she was a prostitute…
Later, in his opening, the prosecutor reiterated the point about defendant's omission:
He did not say he picked her up to have sex with her. He did not say she was a prostitute.
Defense counsel objected to these comments and moved for a mistrial, but the trial judge denied the motion as well as the request for a curative instruction.
In his case-in-chief, during the direct examination of Sergeant DeLuccia, the prosecutor continued this theme in the following exchange:
Q. In addition to telling you that he picked up [M.M.] in order to scare her because she had been bothering his brother and sister, did [defendant] say anything to you about having sex with [M.M.]?
A. No. Nothing.
Q. Did the subject of her being a prostitute ever come up?
A. No, sir.
Later, the prosecutor asked Sergeant DeLuccia:
Q. All right. From the moment that you first saw [defendant] [] to the time you went off duty that morning, did the subject ever come up concerning prostitution?
Although the trial judge sustained defense objection on the ground that the question was overbroad, he permitted the following colloquy to take place:
Q. Sergeant, from the moment that you first laid eyes on [defendant and M.M.], from the time that you saw them come in that clear door, to the time that [M.M.] was taken to the front of the police department and [defendant] was escorted to another room and you lost sight of the two, from point A to point B as I've just outlined it, did [defendant] ever say anything with regard to prostitution or allege that [M.M.] was a prostitute?
A. No, sir.
Q. Did the subject of prostitution ever come up during that period of time?
A. No, sir.
In direct examination of another witness, Officer Louis DeLucca, the prosecutor asked:
Q. Now, at some point after you, in the company of the Captain, meet with [defendant], after you get his name, after he produces a police badge -- Passaic police badge, after he produces the Passaic housing officer ID card, and after he identifies himself as a Passaic police officer, he was actually formally placed under arrest, correct?
A. Correct.
Q. Before that happened, from the time you first met him to the time that he was placed under arrest, did the subject of prostitution ever come up between you, the Captain or the Defendant?
A. No.
During his summation, the prosecutor made further references to defendant's omission, stating:
[M]inutes after this incident occurs, [defendant] goes into the Paterson Police Department with [M.M.] and stakes out his position. In effect he says[,] here I stand, this is my position, and he never said, in staking out his position, that [M.M.] was a prostitute.
Later in closing, the prosecutor highlighted the same notion:
[Defendant] said he found [M.M.] around 27th Street, and he said not that he picked her up as a prostitute, not that he had sex with her. He didn't say that ....
Not so that he could have sex with her, not so that he
could hire her as a prostitute, but that so he could scare her
so she wouldn't bother his brother or sister on 27th Street ....
He didn't say that she was a prostitute. He didn't say he hired
a prostitute. He didn't say he had sex with her during an act
of, an act of prostitution. He didn't say any of that.
And still later, as if the jury needed reminding, the prosecutor once again
emphasized defendant's failure to disclose:
And don’t you think that if [defendant] were engaged in prostitution, that would
be the time to say it? But he didn't. You know why? Because
he wasn't....
Defendant's counsel objected to the prosecutor's closing and again moved for a mistrial,
which was denied by the trial judge who also failed to provide either
a curative or a limiting instruction.
At issue is not the volunteered statement defendant initially made to police as
to why he picked up M.M., but rather the State's repeated references to
the omission from that exculpatory account, both before and after M.M.'s accusation of
sexual assault, of the version suggested at trial that M.M. was a prostitute
soliciting sex. Defendant contends such comments and questions were designed to improperly draw
meaning from silence rather than elicit an inconsistency. Defendant further complains that these
comments were made as part of the State's case-in-chief even though ostensibly offered
only for the limited purpose of impeaching the credibility of a defendant who
elected not to testify,
State v. Marshall,
260 N.J. Super. 591, 597 (App.
Div. 1992), and not as substantive proof of guilt, for which they lacked
any real relevance in any event. Finally, defendant argues that the challenged remarks
relate to the entire police encounter, both pre-arrest, and custodial when it was
clear defendant was not free to leave after M.M. presented physical corroboration of
her rape accusation, and as such constitute impermissible comment on his post-arrest silence.
The State counters that it did not comment on defendant's silence but rather,
just the opposite, on his prior statement to the police to demonstrate its
inconsistency with the version intimated by the defense at trial.
In New Jersey, although the privilege against self-incrimination is not part of our
Constitution, it is enshrined in the common law, and codified in statute and
as part of our evidence rules. See N.J.S.A. 2A:84A-19 and N.J.R.E. 503. See
also State v. Dreher,
302 N.J. Super. 408, 474 (App. Div. 1997). In
fact, New Jersey's privilege against self-incrimination is generally regarded as offering broader protection
than its federal constitutional counterpart. See State v. Strong,
110 N.J. 583, 595
(1988).
The right of an accused or a suspect to remain silent when in
police custody or under interrogation has always been a fundamental aspect of the
privilege in this State. State v. Deatore,
70 N.J. 100, 114 (1976). As
such, the State may not use a defendant's post-arrest silence to establish guilt.
Id. at 108-09; State v. Lyle,
73 N.J. 403, 410 (1977); State v.
Ruscingo,
217 N.J. Super. 467, 470 (App. Div. 1987). See also Doyle v.
Ohio,
426 U.S. 610,
96 S. Ct. 2240,
49 L. Ed.2d 91
(1976).
In Deatore, supra, our Supreme Court held that a defendant who remains silent,
or who fails to volunteer exculpatory information "at or near" the time of
his arrest, may not be cross-examined regarding such silence in order to impeach
his credibility and to permit an inference that his exculpatory testimony at trial
is untrue. 70 N.J. at 108-09, 113. In Deatore, the defendant was on
trial for armed robbery. Id. at 103. Testifying on his own behalf, he
stated that he was elsewhere at the time of the crime. Id. at
104. On cross-examination, the defendant was asked whether he had disclosed his alibi
to the police at the time of his arrest. Ibid. He responded that
he recalled only that he had asked for a receipt for money taken
from him by the police. Ibid. When asked if it was not true
that he had refused to make any statement, the defendant replied, "Nobody asked
me." Id. at 107. The Appellate Division reversed the defendant's conviction on the
ground that the State's cross-examination had penalized the defendant's exercise of his privilege
against self-incrimination. Id. at 109. Affirming, our Supreme Court observed that:
The practical effect of the privilege to remain silent is, as we held
a decade ago, that when a defendant expressly refused to answer, no inference
can be drawn against him under the doctrine of acquiescence by silence or
any other concept[] and no comment thereon may be made to the jury
... . This being so, it should certainly follow that a defendant is
under no obligation to volunteer to the authorities at the first opportunity the
exculpatory story he later tells at his trial and cannot be penalized directly
or indirectly if he does not.
[Id. at 70 N.J. at 115 (citations omitted).]
If, under Deatore and its progeny
See footnote 2, silence cannot be used to impeach the
credibility of a defendant who testifies on his own behalf, a
fortiori it
may not be used for impeachment purposes, much less to prove consciousness of
guilt, where, as here, defendant elects not to testify and is therefore unavailable
to explain his silence. See State v. Holmes,
290 N.J. Super. 302, 316
(App. Div. 1996); State v. Marshall, supra, 260 N.J. Super. at 597.
Deatore involved silence "at or near" a defendant's arrest, and did not deal
with silence significantly preceding an arrest, where no governmental compulsion exists. 70 N.J.
at 108. As to the latter, our Supreme Court years later held that
pre-arrest silence is admissible to impeach a defendant's credibility but only if such
silence has sufficient probative value. State v. Brown,
118 N.J. 595, 613 (1990).
The Brown Court reasoned that since defendant neither has "a right not to
speak prior to arrest," nor "a duty to speak prior to arrest," id.
at 613, then "evidence of pre-arrest silence, particularly in the absence of official
interrogation, does not violate any right of the defendant involving self-incrimination." Ibid. Nevertheless
to be admissible, evidence of pre-arrest silence must be probative on the issue
of credibility or culpability. Id. at 612. And pre-arrest silence has sufficient probative
value for purposes of impeachment only if "when viewed objectively and neutrally in
light of all circumstances, it generates an inference of consciousness of guilt that
bears on the credibility of the defendant when measured against the defendant's apparent
exculpatory testimony." Id. at 615. In other words, "[i]f it can be inferred
by the fact-finder that a reasonable person situated as the defendant, prior to
arrest, would naturally have come forward and mentioned his or her involvement in
the criminal episode, particularly when this is assessed against the defendant's apparent exculpatory
testimony, then the failure to have done so has sufficient probative worth bearing
on defendant's credibility for purposes of impeachment." Id. at 613-14.
Both Brown and Deatore dealt with a defendant's silence, pre-arrest and post-arrest, respectively.
In contradistinction, the privilege's strictures against the use of custodial silence, and even
the evidential restrictions on pre-arrest silence, have no application to statements or conduct
of a defendant inconsistent with his or her exculpatory trial testimony. Thus, where
a defendant makes a statement at or near arrest which is inconsistent with
his trial testimony, State v. Kimbrough,
109 N.J. Super. 57, 65-68 (App. Div.
1970), or where his conduct at the time of the crime or thereafter
is at odds with the story told at trial, State v. Burt,
59 N.J. 156 (1971), cert. denied,
404 U.S. 92 S. Ct. 728,
30 L.
Ed.2d 735 (1972), none of the Fifth Amendment or evidential concerns attendant
upon silence are implicated. As to the former, it is proper to use
prior inconsistent utterances to impeach a defendant's trial testimony even though the utterances
were made before the defendant was adequately apprised of his rights and therefore
would have been inadmissible on the prosecution's case-in-chief by reason of that Miranda
violation. Harris v. New York,
401 U.S. 222, 226,
91 S. Ct. 643,
646,
28 L. Ed.2d 1, 15 (1971). See also Oregon v. Hass,
420 U.S. 714, 723,
95 S. Ct. 1215, 1223,
43 L. Ed.2d 570, 578 (1975); Kimbrough, supra, 109 N.J. Super. at 65-68. In other words,
statements, as opposed to silence, of a defendant in violation of Miranda are
admissible for the limited purpose of impeachment where defendant chooses to testify at
trial.
By the same token, conduct that is intrinsically indicative of a consciousness of
guilt, such as unexplained flight, may be properly probed by the State on
impeaching cross-examination of the defendant. Burt, supra, 59 N.J. at 156. See also
State v. Phillips,
166 N.J. Super. 153, 160 (App. Div. 1979), certif. denied,
85 N.J. 193 (1981). The charge in Burt was murder - the shooting
of a friend. The defense at trial was that the shooting was accidental.
The proofs up to the point of the cross-examination in question established that
defendant had not sought medical or other assistance for his injured friend after
the incident, had left the locale without knowing whether he was dead or
alive, and had not reported the occurrence to the police when he was
arrested for another offense a few hours later (the police at that time
did not know of the shooting), nor indeed to anyone. The purpose of
the cross-examination was, in essence, to bring all this out and thus convince
the jury that the trial testimony of accidental shooting could not be true.
This was found to be proper, 59 N.J. at 156, because, as the
Court in Deatore later said of the Burt decision, "[i]t was in fact
not a true case of silence in police custody as to an exculpatory
story, but rather one of conduct, albeit non-action, after the charged crime inconsistent
with defendant's [testimony] at trial." 70 N.J. at 118.
Following suit, the State here argues that this is a case of a
prior inconsistent statement rather than mere silence in police custody. The State thus
posits that its purpose was simply to bring to the jury's attention that
while defendant volunteered an exculpatory story to the police, he had not included
in that account what his defense implied at trial, namely that M.M. was
a prostitute soliciting sex at the time of the incident. Its reasoning, of
course, is that an innocent man would not have withheld such an exculpatory
story prior to trial but would have asserted it to avoid charges and
that therefore the natural inference follows that the trial version is untrue. Thus,
the State concludes the material omission from the prior statement of any claim
that the victim was a prostitute was the proper subject of prosecutorial comment.
We disagree. The State's position overlooks several critical distinctions between the present situation
and those cases finding appropriate cross-examination or rebuttal testimony concerning prior statements or
conduct of a defendant inconsistent with the exculpatory story told at trial.
In the first place, unlike the latter line of cases where prior statements
or actions were used to impeach the accused's trial testimony, defendant here elected
not to testify and therefore the challenged comments and questions could not have
been made for the purpose of impeachment. See State v. Holmes, supra, 290
N.J. Super. at 316; State v. Marshall, supra, 260 N.J. Super. at 597.
Nor do we discern any basis for their use, on this record, as
substantive evidence of guilt, even if generally allowable. See Dreher, supra, 302 N.J.
Super. at 465-66.
Just as significant, the prosecutorial references in this case were, as a practical
matter, to defendant's post-arrest silence, or at the very least to silence "at
or near" the time of arrest, State v. Deatore, supra, 70 N.J. at
108-09, a subject clearly protected by New Jersey's privilege and plainly beyond any
proper prosecutorial commentary. Although defendant did volunteer a partial statement to the police
in explanation for his presence at headquarters, by the time he was confronted
with corroborative proof of the rape accusation, and the situation had become custodial,
he had by necessity abandoned his original account of the incident and expressly
declined to speak any further, other than of course to indicate a strong
desire to leave and return to his family. Faced with demonstrative evidence that
he had sex with the complainant, and further with physical constraints on his
freedom of movement, defendant obviously could no longer adhere to his initial story
and thus exercised his right to remain silent. Given the shift in defendant's
position, the prosecutor's comments could be interpreted in no other way than as
a direct reference to defendant's custodial silence rather than to his earlier disclosure.
In other words, the State's repeated references to defendant's failure to disclose his
allegation that M.M. was a prostitute were not designed to elicit an explanation
for his prior statement, which was admissible and already before the jury for
its consideration, but rather to highlight, impermissibly, defendant's silence in the wake of
accusation and official interrogation. Such use of custodial silence is clearly prohibited.
We see no reason under the circumstances of this case to place any
greater significance on the fact that defendant spoke immediately prior to his arrest.
That fact alone does not open the door to prosecutorial comment on exculpatory
facts not then disclosed or omitted from the earlier statement. Compare Doyle v.
Ohio, supra, 426 U.S. at 622-23, n. 4, 96 S. Ct. at 2247,
n. 4, 49 L. Ed.
2d at 101, n. 4; State v. Deatore,
supra, 70 N.J. at 108; and State v. Lyle, supra, 73 N.J. at
409, with Anderson v. Charles,
447 U.S. 404, 409,
100 S. Ct. 2180,
2182,
65 L. Ed.2d 222, 227 (1980); and State v. Marks,
201 N.J. Super. 514, 531-33 (App. Div. 1985), certif. denied,
102 N.J. 393 (1986).
Indeed, the defendants in Doyle v. Ohio, supra, State v. Deatore, supra, and
State v. Lyle, supra, did not remain entirely silent upon their arrests yet
the United States Supreme Court in Doyle and our Supreme Court in Deatore
and Lyle analyzed the due process question as if those defendants remained silent
and framed the issue in terms of whether such post-arrest silence could be
used to attack the credibility of a defendant who subsequently provided exculpatory facts
at trial. The rulings in those cases, which consistently answered the question so
framed in the negative, apply with equal force to the facts in this
case. Simply put, defendant here chose to remain silent in the face of
accusation, and the prosecutor's questions and opening and closing statements highlighting that fact
impermissibly penalized defendant for legitimately exercising his constitutional and common law right.
Even if, as the State argues, the challenged remarks may be considered to
relate only to defendant's pre-arrest silence or omission, that is to a time
before he became a suspect, they nevertheless lack any evidential basis and, as
such, constitute prejudicial error. N.J.R.E. 401; N.J.R.E. 403. As noted, for pre-arrest silence
to be admissible to impeach a defendant's credibility, it has to have sufficient
probative value. Brown, supra, 118 N.J. at 612. For silence to be probative,
"it must appear that the failure to speak was unnatural and that an
ordinary person would have come forward with the exculpatory information under the circumstances."
State v. Merola,
214 N.J. Super. 108, 118 (App. Div. 1986), certif. denied,
107 N.J. 91 (1987). Here, the defendant's failure to disclose the prostitution allegation
at the earliest possible point has no real probative value on, or relevance
to, the issue of his credibility or culpability. Rather, it is likely defendant
omitted this detail from his original version because of the incriminatory potential of
such an admission, and its damaging effect on his efforts to seek reinstatement
as a police officer. Indeed, admitting having engaged in prostitution would have exposed
defendant to criminal charges and ended any possibility of reentering the law enforcement
field.
In State v. Merola, supra, the State alleged that the defendant had killed
one person and wounded another during a drug deal; the defendant claimed that
the two victims had shot each other during the drug deal. 214 N.J.
Super. at 111-14. The defendant did not surrender to the police until he
read about the incident in a local paper. Ibid. At trial, the prosecutor
questioned the defendant about his failure to have communicated with the police immediately.
Ibid. On appeal, defendant argued that this questioning violated his privilege against self-incrimination.
Ibid. In explaining why the defendant's pre-arrest silence was not probative, the court
considered whether silence was natural or unnatural under the circumstances. Id. at 118-120.
It found that, among other likely explanations for his silence, that admitting he
had attempted to purchase cocaine during the criminal incident would have resulted in
separate criminal charges against him as well as violation of his probation. Id.
at 118. Thus, the court held that prior to arrest, a defendant is
under no obligation to volunteer information which, although exculpatory as to the crime
charged, would incriminate him as to another offense. Ibid. Therefore, the court held,
the State should not have been permitted to attack a defendant's credibility on
the basis of his pre-arrest failure to provide such information. Id. at 120.
Similarly, in Commonwealth v. Nickerson,
434 N.E.2d 992 (Mass. 1982), the Court
held that impeachment by silence was improper where the defendant would have subjected
himself to criminal charges had he come forward and apprised the authorities of
the exculpatory story he ultimately gave in his trial testimony. Id. at 997.
The Court stated that "impeachment of a defendant with the fact of his
pre-arrest silence should be approached with caution, and, wherever it is undertaken, it
should be prefaced by a proper demonstration that it was 'natural' to expect
the defendant to speak in the circumstances." Ibid. See also Holmes, supra, 290
N.J. Super. at 316-17 (holding that because defendant's parole might have been revoked
if he reported that in self-defense he had killed a person with whom
he was involved in drug dealings, his pre-arrest silence was probably not admissible
to attack his credibility).
So too here. Defendant's silence was at the very least equivocal and ambiguous.
Clearly, it would not have been natural for defendant to have come forward
in the circumstances of this case and produce incriminating evidence against himself. Even
assuming that the State's use of this omission does not violate due process
standards under Deatore because it is not considered to have occurred "at or
near" the time of defendant's arrest, we nevertheless conclude that defendant's failure to
volunteer incriminating information at the earliest possible time says too little about the
credibility of his defense at trial and even less about his culpability.
Thus, while we hold that New Jersey's common law privilege protects defendant's post-arrest
silence against any adverse comment by the State, to the extent the prosecutor's
comments may be interpreted to refer to an earlier point in time, we
rest our decision upon the simple evidentiary principle that pre-arrest silence under the
facts of this case lacked relevance and had little, if any, probative force.
N.J.R.E. 401. Given the clear capacity for prejudice, we therefore conclude that the
trial judge committed reversible error in permitting the prosecutor to repeatedly comment on
defendant's failure to disclose the version of events suggested for the first time
at trial.
We now address defendant's other principal claim that it was plain error to charge the jury with the lesser-included offense of criminal sexual contact. Again, we agree.
Defendant was charged in count two of the indictment with committing the first-degree crime of aggravated sexual assault by sexually penetrating M.M. by force or coercion, resulting in severe personal injury to her, N.J.S.A. 2C:14-2(a)(6), and in count three with second-degree aggravated criminal sexual contact by committing an act of sexual contact upon M.M. by force or coercion, resulting in severe personal injury to her, N.J.S.A. 2C:14-3(a). The State's proofs at trial were that defendant lured the victim into his car under false pretenses and then forced her to perform fellatio on him before he forcibly raped her. At the close of evidence, the defense objected to proposed jury instructions on the lesser-included offenses of lewdness, simple assault, and criminal restraint, but apparently did not challenge the court's charge on the lesser-included offense of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).
The jury deliberated for three days during which they advised the trial judge on four separate occasions that they were deadlocked. Ultimately, they arrived at a verdict acquitting defendant of first-degree kidnapping and of the more serious sexual offense charges, and convicting him of count three's lesser-included offense of criminal sexual contact.
While a defendant "is entitled to a charge on all lesser-included offenses supported by the evidence," State v. Short, 131 N.J. 47, 53 (1993); State v. Purnell, 126 N.J. 518, 531 (1992) (stating that "a trial court must charge the jury regarding 'all of the possible offenses that might reasonably be found from such facts.'") (quoting State v. Ramseur, 106 N.J. 123, 271 n.62 (1987)), a court "shall not charge the jury with respect to an included offense unless there is a rational basis" for doing so. N.J.S.A. 2C:1-8(e). In other words, to justify a lesser-included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense. State v. Brent, 137 N.J. 107, 113-14 (1994). See also State v. Crisantos, 102 N.J. 265, 278 (1986).
In assessing whether to charge the jury on a lesser- included offense, our courts employ a different standard based on whether or not a charge was requested by a defendant at trial. Brent, supra, 137 N.J. at 115. An unrequested charge on a lesser-included offense must be given only where the facts in evidence "clearly indicate" the appropriateness of that charge. State v. Choice, 98 N.J. 295, 298 (1985) (citing State v. Powell, 84 N.J. 305, 319 (1980); State v. Grunow, 102 N.J. 133, 148-49 (1986) (noting that "a court ordinarily has supervening responsibility to charge the jury concerning any version of the offense 'clearly indicate[d]' by the evidence to require proper jury consideration")); see also State v. Singleton, 290 N.J. Super. 336, 341-42 (App. Div. 1996). Accordingly, a trial court "should not 'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.'" Brent, supra, 137 N.J. at 118 (quoting State v. Sloane, 111 N.J. 293, 302 (1988)); see also Choice, supra, 98 N.J. at 299 (stating that trial court does not "have the obligation on its own to meticulously sift through the entire record" to find appropriate charges).
By contrast, when a defendant requests a lesser-included offense to be charged, the Court has recognized that a strict adherence to the definition of "included" under N.J.S.A. 2C:1-8d "is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117; See also Purnell, supra, 126 N.J. at 531 (citing Sloane, supra, 111 N.J. at 300 ("the statutory definition of lesser-included offenses ... is not 'all-encompassing,' nor are the statutory categories 'water-tight compartments.'")).
A defendant would be guilty of aggravated sexual assault, a first-degree crime, if he committed
an act of sexual penetration with another person under any one of the following circumstances:
(6) [t]he actor uses physical force or coercion and severe personal injury is sustained
by the victim.
[N.J.S.A. 2C:14-2(a)(6).]
"Sexual penetration" is defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between
persons or insertion of the hand, finger, or object into the anus or
vagina either by the actor or upon the actor's instruction." N.J.S.A. 2C:14-1(c).
In contrast, in order to commit criminal sexual contact under N.J.S.A. 2C:14-3(b), "a
defendant must commit an act of "'sexual contact' with the victim under any
of the circumstances set forth in section 2C:14-2(c)(1) through (4)," including through the
use of physical force or coercion, during or after which the victim does
not sustain severe personal injury. See N.J.S.A. 2C:14-2(c)(1). "Sexual contact" is defined as
"an intentional touching by the victim or actor, either directly or through clothing,
of the victim's or actor's intimate parts for the purpose of degrading or
humiliating the victim or sexually arousing or sexually gratifying the actor . .
. ." N.J.S.A. 2C:14-1(d).
Here, while fourth-degree criminal sexual contact is squarely included in the offense of
aggravated criminal sexual contact charged in count three of the indictment, see N.J.S.A.
2C:1-8(d), neither crime is rationally based in, much less clearly indicated by, the
evidence adduced at trial. The proofs demonstrated forced sexual penetration both vaginally and
orally and nowhere did the evidence suggest, or the State theorize, mere intentional
touching. Thus, there was no rational basis for a conviction of sexual contact.
In State v. Cuni,
303 N.J. Super. 584 (App. Div.), certif. denied,
152 N.J. 12 (1997), both the defendant and the mentally handicapped victim testified that
vaginal intercourse had occurred. Id. at 592. The prosecutor requested the trial judge
to charge the jury on the lesser-included offense of sexual contact, but the
judge denied the State's application. Id. at 610. In affirming the trial court,
we said:
[T]he judge properly denied the prosecution's request to charge the jury as to
the crime of sexual contact, a crime not involving vaginal intercourse but rather
an intentional touching of the victim's intimate parts. See N.J.S.A. 2C:14-1(d). The judge
is required to charge the jury on a lesser-included offense only if there
is "a rational basis for a verdict convicting the defendant of the included
offense." N.J.S.A. 2C:1-8(e); see also State v. Moore,
113 N.J. 239, 289 (1988).
Here, there was no rational basis for a conviction of sexual contact.
[Id. at 610.]
Here, as in Cuni, no evidence of mere sexual contact was presented and
therefore it was error to have charged the jury on an offense not
rationally based on the evidence. On this score, our Supreme Court has acknowledged
that "the jury must convict of a crime supported by the evidence, as
opposed to compromising between jurors who want the greater charge and jurors who
want to acquit." State v. Cooper,
151 N.J. 326, 366 (1997). Moreover, "it
is the duty of the jury not to reach compromise verdicts based on
sympathy for the defendant or to appease holdouts, but to render a just
verdict by applying the fact it finds to the law it is charged."
State v. Harris,
141 N.J. 525, 553 (1990) (citation omitted). Given the circumstances
surrounding return of the verdict, we are convinced that the very harm addressed
by these cases was realized here. Because the trial court's decision to charge
the jury on a lesser-included offense not rationally based on the evidence was
plain error, we reverse and vacate defendant's conviction.
In light of this disposition, we need not address the remaining issues raised by defendant. However, we note only with respect to the issue raised in defendant's Point II that the trial court's failure to instruct the jury in accordance with State v. Hampton, 61 N.J. 250 (1992) and State v. Kociolek, 23 N.J. 400 (1957) was not error since defendant's oral statements to the police, the precise contents of which are not in dispute, were neither inculpatory nor the result of custodial police interrogation. See State v. Harris, 156 N.J. 122, 183 (1998); State v. Baldwin, 296 N.J. Super. 391, 398-402 (App. Div.), certif. denied, 149 N.J. 143 (1997).
The judgment of conviction is reversed and vacated.
Footnote: 1
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L.
Ed.2d 694 (1966).
Footnote: 2
See, e.g., State v. Whitehead,
80 N.J. 343, 346-348 (1979); State v. Lyle,
supra, 73 N.J. at 409; State v. Alston,
70 N.J. 95, 98 (1976).