State v. Smith

• Decision Date: 07 February 1995
• Citation: 652 A.2d 241,279 N.J.Super. 131
• Parties: STATE of New Jersey, Plaintiff/Respondent, v. Darrell SMITH, Defendant/Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 131

279 N.J.Super. 131

652 A.2d 241

STATE of New Jersey, Plaintiff/Respondent, v. Darrell SMITH, Defendant/Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 7, 1994.

Decided Feb. 7, 1995.

Susan L. Reisner, Public Defender, Atty., for appellant (Donald T. Thelander, Asst. Deputy Public Defender, of counsel, and on the brief).

Deborah T. Poritz, Atty. Gen., for respondent (Janet Flanagan, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges SHEBELL, SKILLMAN and WALLACE.

The opinion of the court was delivered by WALLACE, J.A.D.

Tried by a jury defendant Darrell Smith was convicted of first degree kidnapping, N.J.S.A. 2C:13-1b (count two); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); second degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(3), as a lesser included offense of aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count five); second degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c, as a lesser included offense of sexual assault, N.J.S.A. 2C:14-2c (count six); fourth degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count seven); fourth degree unlawful possession of weapons, N.J.S.A. 2C:39-5d (count eight); and third degree possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4d (count nine). The jury found defendant not guilty of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one), and first degree armed robbery, N.J.S.A. 2C:15-1 (count three). Pursuant to N.J.S.A. 2C:13-1c(2), the trial court merged counts five, six and seven into count two and imposed a life term with a twenty-five year period of parole ineligibility. The court merged counts eight and nine into count four and imposed a concurrent seven-year term on count four and assessed a Violent Crimes Compensation Board penalty of $60.

On this appeal, defendant contends:

POINT I:

THE DEFENDANT'S CONVICTION AND SENTENCE FOR KIDNAPPING WHICH SUBJECTED HIM TO A SENTENCE OF LIFE IMPRISONMENT

WITH A MANDATORY 25 YEARS OF PAROLE INELIGIBILITY IS UNCONSTITUTIONAL AND ILLEGAL AS THE TRIAL COURT NEVER INSTRUCTED THE JURY ON AN ESSENTIAL ELEMENT OF THAT OFFENSE, THAT IS, THAT IN ORDER TO CONVICT THE DEFENDANT, THEY HAD TO FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED A SEXUAL ASSAULT ON THE VICTIM WHO WAS UNDER THE AGE OF 16 DURING THE COURSE OF THE KIDNAPPING.

POINT II:

DEFENDANT'S CONVICTION AND SENTENCE FOR A VIOLATION OF N.J.S.A. 2C:13-1c(2) MUST BE VACATED AS THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED A CRIME UNDER N.J.S.A. 2C:14-2, N.J.S.A. 2C:14-3 OR N.J.S.A. 2C:24-4.

POINT III:

THE DEFENDANT'S CONVICTION AND SENTENCE FOR A VIOLATION OF N.J.S.A. 2C:13-1c(2) MUST BE VACATED AS THE DEFENDANT WAS NEVER CHARGED IN THE INDICTMENT WITH HAVING COMMITTED THIS OFFENSE. (Partially Raised Below).

POINT IV:

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON FIRST DEGREE KIDNAPPING AND SECOND DEGREE SEXUAL ASSAULT WERE IMPROPER IN THAT THE TRIAL COURT INSTRUCTED THE JURY THAT IT COULD CONVICT THE DEFENDANT ON ALTERNATIVE FACTUAL AND LEGAL THEORIES OF LIABILITY, NOT CHARGED IN THE INDICTMENT. SUCH INSTRUCTIONS WERE IMPROPER AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.

A. INTRODUCTION

B. THE COURT'S CHARGE ON FIRST DEGREE KIDNAPPING WAS IMPROPER AS IT INCLUDED ADDITIONAL FACTUAL AND LEGAL ELEMENTS NOT CHARGED IN COUNT TWO OF THE INDICTMENT.

C. THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE ELEMENTS OF SEXUAL ASSAULT AS CHARGED IN COUNT SIX WERE IMPROPER IN THAT THEY EXCEEDED THE SCOPE OF THE CHARGES PRESENTED BY THE GRAND JURY IN COUNT SIX.

D. THE CHARGE ON BOTH KIDNAPPING AND SEXUAL ASSAULT WERE SO PREJUDICIAL AS TO EFFECTIVELY DENY THE DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT V:

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION REQUESTING A COURT APPOINTED PSYCHOLOGICAL EXAMINATION OF THE VICTIM.

We agree with defendant's contention that the trial court should have submitted to the jury the question of whether defendant committed a sexual assault upon a victim under the age of sixteen during the course of a kidnapping in order to impose the enhanced sentencing provisions of N.J.S.A. 2C:13-1c(2). Further, we agree that defendant's attempt convictions do not come within the conditions for imposition of an enhanced sentence under the statute. However, our conclusions do not affect defendant's convictions but only his sentencing. The prior mergers of defendant's convictions at sentencing are set aside. The case is remanded for resentencing. We reject defendant's remaining contentions.

I

In June 1989, A.E., a mildly retarded fourteen year old, was robbed. After the robbery he went to Penn Station to look for his friends because his mother was not home. There, a man, later identified as defendant, asked him what was wrong. A.E. told defendant that he had been robbed. Defendant helped A.E. look for the perpetrators, but they were unsuccessful.

After getting something to eat, A.E. and defendant went to A.E.'s home where defendant met A.E.'s mother. Defendant told A.E. that he wanted to be his "older brother" and would protect him. A few days later A.E. saw defendant again. Defendant asked A.E. to go to Irvington with him to locate a friend who owed him money. A.E. hesitated but finally agreed to accompany defendant to Irvington. Defendant took A.E. to an abandoned house in Irvington. A.E. sensed danger and tried to run away, but defendant stopped him and told him that nothing was going to happen.

Once they entered the abandoned house, defendant grabbed A.E. by the neck, told him to lie down, and threatened to kill A.E. if he screamed. Defendant ordered A.E. to remove his pants, but A.E. refused. Defendant choked A.E. until he pulled his pants down. Defendant then started having "sex" with A.E. After the initial attack, A.E. tried to escape, but defendant grabbed and choked A.E. and threw him on the floor.

The ordeal continued into the next day. Defendant again sexually assaulted A.E. as he had the previous day. After this attack, they went to the third floor where defendant had A.E. stand on a bucket. Defendant wrapped electric wire around A.E.'s neck, hung it over a pipe, and choked him. Defendant eventually let A.E. down. He grabbed A.E. and dragged him to the basement where he used a piece of glass to lacerate A.E.'s scrotum. Defendant also hit A.E. in the mouth with a shovel and broke one of his teeth. He then took A.E.'s watch, social security card, and his identification card.

Defendant tied A.E.'s hands to a pipe in the basement and went upstairs to sleep. The next morning A.E. freed himself and escaped through a window. He ran home where a neighbor called an ambulance which transported A.E. to the hospital.

Dr. Kathleen Stokes treated A.E. in the emergency room. She remembered A.E. because his was the "worst situation [she had] seen." Dr. Stokes examined A.E. and diagnosed avulsion of the scrotum, laceration of the right base of the penis, subconjunctival hemorrhages of the eyes, and multiple lacerations. She found no evidence of rectal injury. A.E. remained in the hospital for one week.

On June 23, 1989, Detective Spearman interviewed A.E. in the hospital. Upon A.E.'s release from the hospital on June 29, he led Spearman to the house where the assault occurred. The inside of the house was precisely as A.E. described it. On the third floor Spearman found a white bucket, a black cable wire, and a piece of glass with bloodstains on it. The blood was later found to be the same type as A.E.'s. In the basement Spearman found A.E.'s pants, his watch, a purple headscarf, and a black cable. Spearman also found a shovel on the premises.

Later, on July 12, 1989, A.E. was shown a photo array and immediately identified defendant's photograph as the man who had sexually assaulted him.

At trial, defendant did not testify. His defense was one of general denial contending that A.E. was mistaken in his identification.

II

We first address the question of whether the preconditions for imposition of a life term with a twenty-five year term of imprisonment without eligibility for parole under N.J.S.A. 2C:13-1c(2) are elements of an aggravated form of kidnapping, which must be found by the jury, or are merely conditions for imposition of an enhanced sentence, which may be found by the court. The trial court denied defendant's request that the jury consider these additional elements. Defendant contends this was error.

N.J.S.A. 2C:13-1c provides in pertinent part:

c. Grading of kidnapping. (1) Except as provided in paragraph (2) of this subsection, kidnapping is a crime of the first degree and upon conviction thereof, a person may, ... be sentenced to an ordinary term of imprisonment between 15 and 30 years. If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree.

(2) Kidnapping is a crime of the first degree and upon conviction thereof, an actor shall be sentenced to a term of imprisonment by the court, if the victim of the kidnapping is less than 16 years of age and if during the kidnapping:

(a) A crime under N.J.S. 2C:14-2 or subsection a. of N.J.S. 2C:14-3 is committed against the victim;

(b) A crime under subsection b. of N.J.S. 2C:24-4 is committed against the victim; or

(c) The actor sells or delivers the victim to another person for pecuniary gain other than in circumstances which lead to the return of the victim to a parent, guardian or other person responsible for the general supervision of the victim. ¹

Notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S. 2C:43-6, the term of imprisonment imposed under this paragraph shall be either a term of 25 years during which the actor shall not be eligible for parole, or a specific term...