State v. Muhammad

• Decision Date: 15 March 2005
• Citation: 868 A.2d 302,182 N.J. 551
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Naseem Abdul MUHAMMAD, Defendant-Respondent.
• Court: New Jersey Supreme Court

868 A.2d 302

182 N.J. 551

STATE of New Jersey, Plaintiff-Appellant, v. Naseem Abdul MUHAMMAD, Defendant-Respondent.

Supreme Court of New Jersey.

Argued October 12, 2004.

Decided March 15, 2005.

Leslie-Ann M. Justus, Deputy Attorney General, argued the cause for appellant (Peter C. Harvey, Attorney General of New Jersey, attorney; Ms. Justus and Terry S. Bogorad, Senior Assistant Passaic County Prosecutor, on the briefs).

Gregory R. Mueller, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Justice ALBIN delivered the opinion of the Court.

A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his state law privilege against self-incrimination. In this case, we reaffirm that a suspect's silence while in custody, under interrogation, or "at or near" the time of his arrest cannot be used against him in a criminal trial. We agree with the Appellate Division that the prosecutor's improper use of defendant's pre-arrest silence as evidence of guilt requires the reversal of his conviction of criminal sexual contact. We disagree, however, with the appellate panel's conclusion that the trial court did not have a rational basis to instruct the jury on the charged offense of aggravated criminal sexual contact and the lesser-included offense of sexual contact. Because defendant's conviction was supported by sufficient evidence in the record, we also reject defendant's argument that any seeming inconsistency between the verdict acquitting him of the sexual assault charges and convicting him of sexual contact warranted a dismissal. We, therefore, vacate the panel's entry of a judgment of acquittal on the sexual contact charge. In light of the prosecutor's improper use of defendant's pre-arrest silence, we remand for a new trial.

I.

A Passaic County grand jury indicted defendant Naseem Abdul Muhammad for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The charges alleged that defendant abducted and raped M.M. The strange events that led to those charges were detailed at defendant's eight-day jury trial in April 2002. M.M. testified that at approximately 11:30 p.m. on December 22, 1999, she was walking home from her cousin's house in Paterson through an area known for prostitution. As she approached the corner of Ellison Place and East 22nd Street, a slowly driven Nissan Maxima pulled up in front of her and stopped. Defendant, dressed in street clothes, stepped out of the vehicle, displayed a silver badge and identification card, and announced, "I'm a Paterson Police Officer, you're under arrest for soliciting prostitution."¹ M.M. denied that she was a prostitute, explaining that she lived around the corner and was on her way home. Unswayed, defendant told her that she was "going down for soliciting" and ordered her to get into the back seat of his car.

In the driver's seat, defendant drank from a 22-ounce bottle of Budweiser and repeated that M.M. was under arrest for prostitution. He drove to a dark, dead-end street, where he parked the car and told M.M., "if you do me right I'll let you go." After M.M. expressed uncertainty about the meaning of that offer, defendant said the words again and then climbed over the front seat into the back passenger area. Ignoring M.M.'s request to be taken to the police station, defendant put a condom on his penis, pulled M.M. by her hair, and forced her to perform oral sex. Afterwards, defendant ordered M.M. to take her clothes off. When she refused, defendant pulled her pants down, turned her over onto her stomach, and engaged in vaginal intercourse with her against her will for fifteen to twenty minutes until he ejaculated. Defendant then removed the condom, wrapped it in a paper towel, threw it on the floor of the car, and got dressed. As he exited from the rear door to return to the driver's seat, M.M. picked up the paper towel containing the condom and placed it in her pocket.

Back behind the wheel, defendant told M.M. to put on her clothes and get in the front passenger's seat. She refused, fearing that if she exited the car, defendant would take off and leave her behind. Instead, she asked to be taken to the local jail. As defendant drove through Paterson, M.M. pointed randomly to a house and told defendant that she lived there. However, when defendant offered to let her out, she said, "I want you to take me to jail because you said I'm soliciting prostitution." M.M. later declined defendant's offer of four dollars for "[her] time," and continued to insist that he take her to jail. As defendant drove, M.M. refused defendant's offer to take his cell phone and resisted several more requests that she move to the front seat, afraid that if she stepped from the vehicle he would leave her "standing" in the street.

Eventually, defendant and M.M. arrived at Paterson police headquarters. They entered the building together and proceeded to the desk sergeant. Defendant spoke first, telling the sergeant that he had brought M.M. in because she had been harassing his brother and sister. M.M. interrupted and accused defendant of lying, adding that defendant had identified himself as a police officer and had raped her. Then, from her pocket, she produced the condom, which she offered as proof.

The testimony of the desk sergeant, Alexander DeLuccia, shed further light on what occurred at headquarters. Sergeant DeLuccia testified that at approximately 1:15 a.m., M.M. and defendant appeared at his desk. Defendant identified himself as a Passaic police officer, displayed his identification card and badge, and told the sergeant that he had a "problem" with M.M. With tears streaming down her face, M.M. interjected, "[h]e forced me to have sex with him." In response, defendant gave his reasons for bringing M.M. to police headquarters. He explained that earlier that evening, he had gone to East 27th Street in Paterson "to visit his adult brother and sister," both of whom were "narcotics addicts." The brother told defendant that both he and their sister had been harassed by M.M., a neighborhood resident. When defendant caught sight of M.M. leaving her apartment, he "ordered her into his car" for the purpose of "scar[ing] her into leaving his brother and sister alone." However, M.M. "became upset with his shouting" and "insisted that he take her to [h]eadquarters."

M.M. gave Sergeant DeLuccia an account at complete odds with defendant's story. She described how defendant abducted and raped her, and showed him a "paper towel curled up in her hand," which she identified as "`the rubber that he used on me.'" At that point, defendant became nervous, stating he was married and wanted "to go home." The sergeant advised defendant that he could not leave and that there was "going to have to be an investigation." A police officer standing close by overheard that conversation and immediately positioned himself near defendant, and at the sergeant's direction, escorted defendant to the patrol captain's office lounge.

The follow-up investigation was conducted by Officer Louis DeLucca, who testified that in the early morning hours of December 23, he was dispatched to headquarters concerning an alleged sexual assault. He first interviewed M.M. and took from her, as evidence, the condom and paper towel in which it was wrapped. Officer DeLucca spoke briefly with defendant and placed him under arrest.

M.M. was taken to the hospital where she was given medication to prevent possible infection. The condom and paper towel were submitted to a laboratory for DNA testing. Both the State and defendant stipulated that material found on those items "included a mixture of DNA consistent with" defendant and M.M. The stipulation also provided that defendant was "the major contributor of the DNA" and that there was a "1 in 1.3 sextillion chance that the [d]efendant [was] not the source of the seminal material found on the paper towel."

The jury learned during M.M.'s testimony that she had convictions for child abuse, distribution of drugs, and shoplifting; that she had been arrested for creating a public disturbance and stabbing her brother; and that she had several aliases. The jury also learned that M.M. weighed over 210 pounds on the night of the incident and that there were no rips or tears in the pants she wore that evening. Using those facts, defense counsel attempted to cast doubt on M.M.'s account of the assault in the back seat of the Maxima, suggesting that, based on her size, the sexual assault could not have occurred as she had testified. M.M. stated that she had never been a prostitute. She explained that as a result of the sexual assault, she suffered psychological trauma and nightmares, sought counseling for two years, and took illegal drugs "as a way out."

Defendant did not testify.

Defendant's counsel, in his opening and closing remarks, suggested that M.M. was a prostitute with whom defendant had a consensual sexual encounter. In turn, the prosecutor, through questioning of witnesses and in his opening and closing remarks, repeatedly referenced defendant's failure to make any mention at police headquarters of a consensual encounter with M.M. or that she was a prostitute.

First, in his opening statement, the prosecutor remarked:

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.... He did not say he picked her up to have sex with her. He did not say that she was a prostitute.

The court overruled defendant's objection to those comments and denied his motion for a mistrial.

Then, in his examination of Sergeant DeLuccia, the prosecutor focused in on defendant's silence at the police station:

Q: In addition to telling you that he picked up [M.M.]

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