State v. Scherzer

Decision Date20 May 1997
Citation301 N.J.Super. 363,694 A.2d 196
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Kevin SCHERZER, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Kyle SCHERZER, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Christopher ARCHER, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

John Vincent Saykanic, J. Michael Blake, Assistant Deputy Public Defender, and Neal M. Frank, Hackensack, for appellants (Susan Reisner, Public Defender, attorney; Mr. Saykanic, of counsel, and on the brief for appellant, Kevin Scherzer; Mr. Blake, of counsel, and on the brief for appellant, Kyle Scherzer; Mr. Frank, of counsel, and on the brief for appellant, Christopher Archer).

Elizabeth Miller-Hall, Newark, for respondent (Clifford Minor, Essex County Prosecutor, attorney; Ms. Miller-Hall, Barbara Rosenkrans, and Elizabeth Duelly, Newark, of counsel, and on the brief; Robert Laurino, Newark and Nina Bonner, South Orange, on the brief).

Before Judges SHEBELL, BAIME and BRAITHWAITE.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

In May 1990, defendants, Kevin Scherzer and Kyle Scherzer, twin brothers, were indicted, along with three co-defendants, Peter Quigley, Richard Corcoran, Jr., and John Maher, on various sexual assault charges allegedly committed against a mentally defective victim, M.G. In September 1990, the prosecutor's application to have three juveniles, Christopher Archer, his brother Paul Archer, and Bryant Grober, tried as adults was granted. Therefore, in September 1991, a superseding indictment was obtained charging all eight defendants with second degree conspiracy to commit aggravated sexual assault ( N.J.S.A. 2C:5-2 and 2C:14-2a(5), Count One); two counts of first degree aggravated sexual assault (sexual penetration of mentally defective person) ( N.J.S.A. 2C:14-2a(5)(b), Counts Two and Four); two counts of first degree aggravated sexual assault (sexual penetration using physical force or coercion) ( N.J.S.A. 2C:14-2a(5)(a), Counts Three and Five); and four counts of third degree aggravated criminal sexual contact ( N.J.S.A. 2C:14-3a, Counts Six, Seven, Eight, and Nine).

Page 392

Pretrial hearings and motions began in June 1991, and continued until March 1992. On April 3, 1992, Quigley pled guilty to endangering the welfare of an incompetent person ( N.J.S.A. 2C:24-7), a disorderly persons offense. Defendants' motion to seal Quigley's statement was granted. In May 1992, the State's motion to sever the trial of Corcoran was granted, and the indictment was dismissed as to Corcoran in January 1994, after defendants' trial was completed. Defense motions to dismiss the indictments and for severance of the trials of Christopher Archer, Grober, and John Maher were denied, and we denied leave to appeal. On June 23, 1992, Paul Archer gave a statement as a condition of his acceptance into the pretrial intervention program ("PTI") and then pled guilty to endangering the welfare of an incompetent person.

Several Rape Shield Law hearings followed between July, 1992, and September 1992. Jury voir dire began on September 22, 1992, and the trial followed on October 15, 1992. On October 20, 1992, an in-camera hearing was held on the admissibility, under the Rape Shield Law, of portions of tapes made of conversations with M.G. Following six days of jury deliberations, the trial concluded on March 16, 1993. The three appellants, Kevin Scherzer, Kyle Scherzer and Christopher Archer, were convicted of second degree conspiracy to commit aggravated sexual assault (Count One), and first degree aggravated sexual assault by force or coercion (Count Three). They were acquitted of Counts Four through Nine. In addition, Christopher Archer and Kevin Scherzer were convicted of first degree aggravated sexual assault upon a mentally defective person (Count Two), and Kyle Scherzer was convicted of the lesser included offense of second degree attempted aggravated sexual assault. Bryant Grober, who has not appealed, was convicted of third degree conspiracy to commit aggravated criminal sexual contact and was acquitted of all other charges.

At sentencing on April 23, 1993, appellants' convictions on Counts One and Two were merged into their convictions on Count

Page 393

Three. They were then sentenced as young adult offenders to the Youth Correctional Institution Complex for indeterminate terms with fifteen-year maximums, but were continued on bail pending appeal.

Kyle and Kevin Scherzer and Christopher Archer, appeal. Although the State also filed a notice of cross-appeal, it did not pursue its cross-appeal when it submitted its briefs in response to defendants' briefs on appeal.

FACTS

M.G. lived in Glen Ridge most of her life, where she attended special education classes at the elementary and middle schools. In 1989, when seventeen years of age, she attended classes for the "educably mentally retarded" at West Orange High School. She participated in athletics programs, such as softball and basketball, at Glen Ridge High School. Defendants were also Glen Ridge residents and M.G. had known them since grade school.

At trial M.G. testified that on the afternoon of March 1, 1989, she went to Carteret Park in Glen Ridge, to play basketball. There she saw the Archer brothers, Corcoran, and another boy. While she was shooting baskets, Christopher Archer, Grober, Quigley, and two other boys greeted her. In her direct testimony, M.G. said that Grober told her that if she went to the Scherzers' basement with them she would get to go out with Paul. However, on cross-examination she said that she went up to Grober, placed her hand on his crotch, and said something to the effect of "Nice package you have there. Would you like a blow job?" On redirect, she stated the latter testimony was a lie, as she did not want to hurt people.

She said she walked to the Scherzers' house with Christopher Archer, who put his arm around her shoulders. She viewed this as "romantic." When they arrived, there were already "a lot of people" on the stairs and in the basement. Others started setting up chairs near the couch, while she and Grober sat on the couch. M.G. said that when some of the boys asked her to, she took off

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her sweat pants and T-shirt. Thereafter, at the urging of the boys, sexual activity occurred beginning with M.G. inserting her fingers in her vagina, her masturbating and performing fellatio on five of the young men, permitting Kevin to insert a broomstick and Christopher to insert the handle of a baseball bat into her vagina. She said she permitted Corcoran to put a small stick in her vagina. Four of the boys also sucked on her breasts. Before she left, some of the boys told her "not to tell anybody" or they would tell her mother and she would "get in trouble."

Paul Archer, called on behalf of the defense, testified to a different account of the events. He said he and Quigley went to the park because he had heard some baseball players would be throwing the ball around. When they arrived, they went over to talk to the Scherzer brothers and some other friends who were on the basketball court. Soon afterward, Grober and Christopher arrived. Then M.G. arrived carrying a basketball and went directly to Grober. Paul overheard M.G. say, "Bryant, you're really hot. You're sexy. I like your bod[y]. You have a nice package." Grober appeared startled. Paul said that in all the years he had known Grober, he had never before seen him engage in conversation with M.G. After M.G. made these comments to Grober, Paul saw her reach for Grober's crotch, and Grober lunged back. M.G. then asked if Grober wanted a "blow job." At first Grober did not take her seriously, but after they talked, he asked if she meant it.

Paul and Quigley walked to the Scherzers' house, where there were "a couple of guys" playing Nintendo in the basement. Soon, Grober and M.G. appeared. Paul observed Grober drop his pants, and M.G. kneel down and perform fellatio. After a while, he saw Grober rest his hand on M.G.'s shoulder, but did not observe him exert pressure. Grober then moved his hand to the top of M.G.'s head, but once again no pressure was exerted. He did not hear M.G. say any words of resistance. According to Paul, the entire act took about thirty seconds. Grober then sat down and did not participate in any other sexual activity with M.G.

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According to Paul, M.G., who was "totally in control" of the events, then said that "that blow job just got me so horny, I want to have sex with someone." When no one responded, she stood up, pulled down her pants, and then laid down on the couch. He said she then placed her fingers followed by the other objects into her vagina voluntarily. Kevin and Christopher helped her move the broomstick in and out. On cross-examination, Paul admitted that he had testified, when the judge was taking his guilty plea, that his brother and Kevin had inserted the broomstick into M.G., but said that testimony was a mistake.

He said that as people started to leave, M.G. walked to him, pulled up her shirt and bra, and said, "Paul, don't you like my breasts?" She asked him to touch them, but he refused. He said no one else touched her breasts, nor did he observe M.G. masturbating any of the boys or anyone doing anything with a stick. When M.G. asked if the boys wanted to "come back another day and do it again," no one responded. Some of the boys said, "[Y]ou're not going to say anything about this?" and she said no. He said that the entire incident, from the time M.G. first walked up to Grober at the park until she left the basement, lasted about twenty minutes.

Three boys who said they left the basement soon after the sexual activity began testified for the State. They agreed that M.G.'s activities with Grober, which is all they witnessed, appeared to be voluntary, as they did not see Grober use any force.

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