State v. Mergott

• Decision Date: 28 January 1976
• Citation: 355 A.2d 674,140 N.J.Super. 126
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Bruce MERGOTT and Carl Eckhart, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 126

140 N.J.Super. 126

355 A.2d 674

STATE of New Jersey, Plaintiff-Respondent, v. Bruce MERGOTT and Carl Eckhart, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 27, 1975.

Decided Jan. 28, 1976.

Ralph J. Jabbour, Designated Counsel, Morristown, for defendants-appellants (Stanley C. Van Ness, Public Defender, attorney).

Michael A. Graham, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges CARTON, CRAHAY and HANDLER.

The opinion of the court was delivered by

HANDLER, J.A.D.

Defendants Bruce Mergott and Carl Eckhart were charged in an indictment for the rape of N.M., in violation of N.J.S.A. 2A:138--1, and with assaulting M.S. with intent to kill, in violation of N.J.S.A. 2A:90--2. After a long jury trial defendants were convicted of both charges. A codefendant was convicted of rape. Defendant Mergott brought a motion for a new trial which was denied. Thereafter, both defendants were sentenced to 10 to 15-year terms on the rape convictions and to consecutive 2 to 5-year terms on the assault with intent to kill convictions. Both appealed their convictions.

At the close of the State's case, defendant Eckhart's motion for a judgment of acquittal on the charge of assault with intent to kill was denied. Defendant Eckhart renewed his motion at the close of the trial and Mergott made a similar motion; both were denied. These rulings are claimed by defendants to have been in error.

Resolution of this issue calls for a rather careful recapitulation of the evidence. This showed that at approximately 8 or 9 p.m. on August 18, 1971, M.S. and N.M. were at the New Jersey side of the George Washington Bridge hitchhiking to M.S.'s home in Wisconsin. They were picked up by a car containing defendants Mergott and Eckhart, Richard Probst (who had originally been a defendant) and Linda Huley. The people in the car offered M.S. and N.M. a place to stay for the night. They drove to a house belonging to Richard Probst's father. There M.S. and N.M. were given food and a room to sleep in. N.M. went to bed first, followed by M.S. about 30 minutes later.

From this juncture the State and defense versions of events diverge radically. Defendants claimed that N.M. told Mergott that she wanted to 'ball' (I.e., have sex) with several of the men in the house, but that she didn't want M.S. to know what was going on. The State's theory was that N.M. was repeatedly raped.

M.S. testified that at 3:00 or 3:30 in the morning he was dragged from the bed he shared with N.M. by defendants Eckhart and Mergott. His hands were forced behind his back and Eckhart poked at him with a hunting knife. Someone said, 'We want the girl.' He was then blindfolded and led down to the basement by Probst and Eckhart. Because of the poor blindfolding job he was able to see N.M. yanked naked from the bed.

When the men first burst into the room N.M. screamed. Eckhart told M.S. to shut her up or he would kill him. As he was being led away M.S. was repeatedly told that he wouldn't get hurt unless he tried to be a hero, but that if he did try, he'd be a dead hero. Both defendants made threats.

M.S., who was naked, having gone to bed with no clothes on, was taken to the basement, tied up and placed on the floor. He was kicked and beaten by Probst when he refused to show appreciation for the record album Probst and playing. M.S. was told that the people in the house were all members of a motorcycle gang called the Pagans and that the Pagans would get him if he didn't watch himself.

After a time defendant Mergott came downstairs and asked, 'Who's next to play with the girl? Who's next to plug N.?' There was also talk from Eckhart about cutting off one of M.S.'s fingers or an ear so that he would remember not to go to the police.

After a passage of time codefendant Catalano (not an appellant here) entered. N.M., wrapped in a blanket, was then brought downstairs. In M.S.'s presence Catalano had intercourse with N.M. and then demanded that she perform fellatio on him, threatening her with anal rape if she did not comply. N.M. acquiesced.

N.M. testified that after M.S. was taken downstairs she was raped by defendant Mergott and forced to perform an act of fellatio on him. She was mistreated in identical fashion by defendant Eckhart. She testified that she acquiesced in the sexual activity solely from fear and that she tried to talk both defendants out of raping her, promising not to go to the police if they left her alone. Both defendants had knives.

After Catalano finished with N.M., M.S.'s hands were untied and he was told to go gather his belongings. Upstairs, M.S. took a couple of letters from a dresser top, in order to have a record of the address.

N.M. and M.S. were warned that defendants had their addresses and that if they went to the police the Pagans--or their Hell's Angels affiliates--would find them and 'get' them. Everyone then went to sleep in the basement.

Later that morning N.M. woke M.S. up, and John, one of the people in the house, told M.S. and N.M. to leave, giving them directions to the highway. In town they flagged down a police car and told their stories. Later that day they identified defendants.

M.S.'s injuries consisted of 10 to 12 small scratches--none deep enough to draw blood--on his back where he had been poked with a knife or knives.

Other state witnesses testified that both defendants were armed with knives. Only one witness--other than defendants themselves--offered testimony in support of defendants' position. Peter Muti testified that he was at the house that early morning and saw N.M. walk out of the bathroom nude while defendant Mergott had his arms around her. Muti testified further that he heard Mergott ask N.M. if she was willing to go along with 'this so-called fun thing' and that N.M. answered, 'Yeah.'

Probst, originally a defendant, testified that defendant Eckhart, at one point, removed an ax from one of the backpacks M.S. and N.M. had been carrying and began talking about 'chopping them up.'

Defendants testified that their initial desire to have sex with N.M. cooled because they thought she might have a disease; hence, they only let her perform oral sex and that only at her urging.

A trial judge must enter a judgment of acquittal, whether at the end of the State's case or at the conclusion of the entire case where, after viewing the relevant evidence in its entirety and giving the State the benefit of all reasonable inferences to be drawn therefrom, he finds that a reasonable jury could not find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458--459, 236 A.2d 385 (1967). In reviewing a decision of the trial court on this question, this court is governed by that same standard. State v. Moffa, 42 N.J. 258, 263, 200 A.2d 108 (1964).

From our review of the record we are satisfied that the evidence adduced at trial was not sufficient to establish that defendants assaulted M.S. with the intent to kill him, within the purpose and meaning of N.J.S.A. 2A:90--2. The constituent elements of the statutory crime are an assault and an intent to kill. The intent to kill must be concomitant and contemporaneous with the assault. See State v. Barker, 68 N.J.L. 19, 25--26, 52 A. 284 (Sup.Ct.1902). The intent to kill must also relate directly to the assault and in that sense be the actuating cause of the assault. Otherwise stated, the natural object of the assault and indeed its very purpose must be the death of the victim.

The reported cases arising out of offenses found to have been committed in violation of N.J.S.A. 2A:90--2 suggest strongly that the assault must be deadly in purpose, that is, be actuated by and accompanied by a present...