State v. Brent

Decision Date06 July 1993
Citation628 A.2d 372,265 N.J.Super. 577
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Charles BRENT, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Zulima V. Farber, Public Defender, for defendant-appellant (Toni M. Seguin, designated counsel, Hackensack, of counsel, and on the brief).

Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Jeffrey L. Weinstein, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges HAVEY, STERN and BROCHIN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant was convicted by a jury of first degree kidnapping, N.J.S.A. 2C:13-1b (count one), and first degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count two). Pursuant to N.J.S.A. 2C:13-1c, the trial judge merged the aggravated sexual assault conviction into the conviction for kidnapping and sentenced defendant to life imprisonment with twenty-five years to be served before parole eligibility.

On this appeal defendant argues:

POINT I: EYEWITNESS IDENTIFICATIONS BY THE VICTIM AND GILLIAM BASED UPON A ONE-MAN SHOWUP WHERE IMPROPERLY ADMITTED WITHOUT A WADE HEARING AND VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW AS TO GILLIAM).

POINT II: THE SURPRISE IN-COURT IDENTIFICATION BY BARLOW WITHOUT A HEARING TO DETERMINE ITS SUFFICIENCY, ITS RELIABILITY OR THE PRESENCE OF A DISCOVERY VIOLATION; AND THE DENIAL OF A MISTRIAL UPON THE SURPRISE AND BELATED REVELATION THAT SHE HAD VIEWED AND FAILED TO IDENTIFY DEFENDANT'S PICTURE IN A POLICE PHOTO ARRAY, DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT III: THE BAD FAITH ACTIONS OF THE POLICE IN MANIPULATING AND CONCEALING EYEWITNESS TESTIMONY, AND IN THE WILLFUL DESTRUCTION AND NON-COLLECTION OF KEY PHYSICAL EVIDENCE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT IV: TRIAL COURT EVIDENTIARY RULINGS VIOLATED THE RULES OF EVIDENCE AND IN THE AGGREGATE DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT V: THE TRIAL COURT ERRED IN REFUSING TO CHARGE CRIMINAL RESTRAINT AS A LESSER INCLUDED OFFENSE OF KIDNAPPING.

POINT VI: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE.

With one exception, we reject defendant's claims addressed to the convictions. We agree with defendant that the trial judge should have honored defendant's request to charge criminal restraint as a lesser offense to kidnapping. In so doing, however, we note that our conclusion does not affect the aggravated sexual assault conviction which was merged into the kidnapping. Defendant need not be retried for the aggravated sexual assault. Hence, if the State elects not to retry defendant on the kidnapping charge, or if defendant is ultimately convicted of a lesser offense or acquitted on count one, the conviction on count two may be resurrected and defendant may be sentenced thereon.

I.

At approximately 7:30 a.m. on September 11, 1989, M.C., then a thirteen year old student at Plainfield High School, was walking to school when she was approached by a man on a bicycle. The sun was shining, and she had a "very clear" view of his face. She described him as 21 or 22 years old, "about 6 feet" tall and "muscular," with "short and frizzy" hair and a goatee. He wore a black short sleeve shirt and pants. She did not recognize him.

The man stopped three or four feet away from M.C. and asked her "to go into a house with him." She refused. He then told her to wait while he took his bike into a house on the street. However, M.C. was scared, and she hurried toward a bus stop where she knew that her mother and brothers were waiting for a bus. The man followed and he grabbed her "from around [her] waist" and "dragged [her] across the street" to a vacant lot. The man threw her on the ground, knelt on top of her, and hit her with his fist "two to 3 times" on the face. Her efforts to escape were unsuccessful.

The man then "dragged" M.C. into an area "where there were a lot of trees." She tried to run away, but he pulled her pants and underwear down around her feet. He then "threw [her] on the ground" again. During this time M.C. had a close look at the perpetrator's face which was "very close and very clear."

The man "took his pants off" and raped M.C. Upon hearing noise from the direction of the street, "[a]s if someone was walking into that area," the assailant "stood up" and ran away. M.C. put her pants back on and returned to the street where she was met by an ambulance squad which had arrived in response to a police radio transmission. As he arrived, Moises Zambrana, one of the ambulance workers, saw a man being chased out of the woods by a police officer. He observed that M.C.'s face was "bruised and very bloody." She was crying and immediately told him that she had been punched and raped by a man who stopped her on the way to school.

Judy Barlow, who lived across from the lot, witnessed some of the events. While Ms. Barlow was getting ready to go to work, she heard a scream outside her window. When she looked out of her window, she saw a man holding a girl "around the waist" and "carrying her" across the street. Barlow also saw him throw "her on the ground and he was kneeling on top of her and then he hit her." Barlow called the police and asked them to "please hurry." After making the call, Ms. Barlow could not see the victim or assailant, but she heard screams and "muffled noises" coming from the lot.

A minute or so after her call, Barlow saw a police officer arrive. She watched him get out of his car and walk "into the bushes" on the lot. Because she continued to hear "muffled sounds" from the lot, Ms. Barlow ran downstairs and out the front door.

As Barlow stood on the walkway in front of her home, she saw "a guy running out of the bushes and zipping his pants." She further testified that, while she did not get a good look at his face when she first saw him carrying the girl across the street, she did see his face when he emerged from the woods. She estimated that at that point, as he ran across the street coming toward her, he was "approximately 13 to 15 feet" away from her. He then turned and began running down the street. As he ran away, the officer came "out of the other side of the bushes," radioed for backup and pursued the suspect on foot.

Over objection, Ms. Barlow made an in-court identification of defendant as the individual she saw running out of the bushes and down the street.

Officer Michael Gilliam was the policeman who responded to Ms. Barlow's call to the police. When he arrived and entered the woods he saw a male, naked from the waist down, "lying on top" of a female "having vaginal intercourse." The man was "looking around in all directions" and Gilliam got a look at his face.

As Gilliam approached, the man ran. Concerned that the suspect might have a weapon, and as he could not "prevent the act from already happening," Gilliam took no immediate action. He radioed for back-up assistance and gave a description of the man. Gilliam then chased the suspect coming to within about twenty feet. As the suspect jumped a fence, "he ran right out of his black shorts." Gilliam radioed the back-up unit that the suspect was now in a "black te[e]-shirt and white boxer type underwear," running through yards.

When the suspect reached an apartment house he entered the building. At that point Gilliam lost view of him. However, shortly thereafter Gilliam received a radio message from Officer David Guarino and went to the rear of the apartment building on to Essex Street. There he saw Guarino "kneeling over" the same man Gilliam had been chasing, wearing the same white boxer shorts and black tee-shirt. Gilliam estimated that about one and a half minutes passed from the time the suspect entered the apartment building and the time he saw defendant in handcuffs with Guarino. He immediately told Guarino he was "positive" the man in custody was "the same individual" as he had seen "on top of the girl." The suspect was put in the patrol car while Gilliam "retrieved the black shorts" that had fallen during the chase. At trial, Gilliam identified defendant as the man he had observed and chased.

Officer Guarino, who had responded to Gilliam's "radio transmissions," saw the suspect come running out of a back yard and run across Essex Street. As he pursued the suspect, Guarino saw him run into the side of a car, "roll[ ] over the hood" and fall onto a sidewalk. The man got up and kept running, but Guarino caught up with him. The suspect was "sweating profusely" and "had pieces of leaves, shrubbery, vegetation in his hair, on his clothes." His face was also bloody.

Defendant testified on his own behalf that he was on his way to his brother's apartment when Gilliam ran up behind him and "hit [him] with a nightstick." Defendant, "fearing for [his] life," ran away. He further testified that the black shorts he was wearing were ripped off as he "jumped" over a fence. He denied attacking or assaulting the victim. On cross-examination, defendant admitted that he did not know the street number or the apartment number of his brother's apartment.

After defendant's arrest, members of the police department took him to the ambulance where M.C. was being treated. The ambulance was parked in such a way that M.C. could "look out the window" to see the man brought to the scene. M.C. "looked out the [ambulance] window" and told ambulance worker Zambrana that she recognized defendant as the assailant.

II.

The proofs were strong, and we are convinced beyond a reasonable doubt that any error relating to the introduction of evidence was harmless. We comment only upon a few of defendant's contentions.

Although defendant argues that M.C. and Gilliam's photographic identifications were the product of one-on-one show ups, there was no objection to Gilliam's identification at trial. We reject defendant's...

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5 cases
  • State v. Brent
    • United States
    • New Jersey Supreme Court
    • July 27, 1994
    ...because in the Appellate Division's view the evidence provided a basis for the charge and defendant had requested it. 265 N.J.Super. 577, 590, 628 A.2d 372 (1993). I A Union County grand jury indicted defendant on charges of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, and first-......
  • State v. Harrington
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 27, 1998
    ...273 N.J.Super. 289, 295, 641 A.2d 1085 (App.Div.), certif. denied, 137 N.J. 313, 645 A.2d 141 (1994); State v. Brent, 265 N.J.Super. 577, 590, 628 A.2d 372 (App.Div.1993), rev'd on other grounds, 137 N.J. 107, 644 A.2d 583 (1994). We, therefore, consider whether the felony murder conviction......
  • State v. Pennington
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    • May 19, 1994
    ...offense and instead request the trial court to "unmerge" the lesser offense and sentence defendant thereon. State v. Brent, 265 N.J.Super. 577, 590, 628 A.2d 372 (App.Div.), certif. granted, 134 N.J. 563, 636 A.2d 520 (1993); cf. State v. Long, 119 N.J. 439, 504-05, 575 A.2d 435 (1990); Sta......
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    • July 16, 1997
    ...and brought to the victim, are not prohibited. State v. Wilkerson, 60 N.J. 452, 461-62, 291 A.2d 8 (1972); State v. Brent, 265 N.J.Super. 577, 584, 628 A.2d 372 (App.Div.1993), rev'd on other grds, 137 N.J. 107, 644 A.2d 583 (1994). The circumstances that justify admitting the out-of-court ......
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