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State v. Reyes

Decided: December 11, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILLIP REYES, JR., DEFENDANT-APPELLANT



J.h. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by Coleman, J.h., P.J.A.D. D'Annunzio, J.A.D. (concurring).

Coleman

In a jury trial, defendant was convicted of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a and possession of a knife for unlawful purposes, contrary to N.J.S.A. 2C:39-4d. After merging the possessory offense with the aggravated sexual assault, defendant was sentenced to a custodial term of 20 years with 10 years of parole ineligibility. Defendant has appealed, contending:

I THE TRIAL COURT'S DENIAL OF MOTION TO SUPPRESS DEFENDANT'S STATEMENT WAS ERROR.

II THE TRIAL COURT'S REFUSAL TO PERMIT EXAMINATION OF THE VICTIM IN A WADE HEARING WAS ERROR.

III THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS POLYGRAPH RESULTS WAS ERROR.

IV THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR MISTRIAL WAS ERROR.

V THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We now affirm the judgment of conviction.

I

Based on the evidence presented, the jury could have determined the following occurred. On January 21, 1987, B.B., a 24 year old female from Bedford, New Hampshire, was staying with her aunt in Linden while looking for a job with an airline. At about 2:30 p.m. on that day, B.B. answered her aunt's doorbell and admitted a male, she later identified as defendant, who said he was a representative from the gas company and was responding to a call concerning a gas leak. B.B. accompanied

the male into the well lit basement where she showed him the heating unit. After fiddling with the unit for about one minute, the male turned around and grabbed B.B. Although B.B. pushed him away, the male attacker grabbed her again, hit her on the side of the head and wrestled her to the floor. After hitting her again, the attacker placed the blade of a knife against her neck, and told her to remove her clothes. He told B.B. that she would live if she followed his instructions. B.B. decided to cooperate. The perpetrator forced B.B. to perform fellatio and he also achieved vaginal penetration. The victim was hospitalized for surgery to curtail bleeding caused by a vaginal laceration.

The focus of the investigation turned to defendant when co-workers at Park Common Molding in Linden saw a composite drawing of the perpetrator made with the victim's assistance. One co-worker cut out the composite drawing from the newspaper and hung it on a wall in the factory. Defendant's place of employment was a two or three minute walk from the rape scene.

Detective Vincent Klebaur, who headed the investigation, arrested defendant on February 10, 1987, based on a New York warrant for robbery. Defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and he was also advised that he was a suspect in the rape investigation. A photograph taken of defendant on the date of his arrest was placed in a photographic array that contained seven pictures of other persons similar in age and appearance to defendant. The victim selected a picture of defendant and one other male and said either could be her attacker, but if she heard them speak, she could positively identify the perpetrator.

Defendant agreed to participate in a lineup that was conducted on the morning of February 11, 1987. The lineup was comprised of six other males fitting defendant's general characteristics. Each was asked to utter 17 phrases and to wear a

white hard hat the assailant wore during the rape. The victim positively identified defendant in the lineup.

Following the lineup, defendant was questioned by Detective Klebaur for approximately five hours. The detective discussed defendant's family and religion in the hope of gaining his trust. Defendant gave a typewritten statement to Klebaur that evening between at 8:25 p.m. and 11:20 p.m., wherein he denied any involvement in the assault.

On the following morning, February 12, 1987, Assistant Prosecutor David Hancock met with defendant in a conference room at the Union County Prosecutor's Office and discussed administering a polygraph. Hancock read an eight page stipulated polygraph form to defendant "word for word" and explained its meaning to him. The form stated, among other things, that the purpose of the polygraph examination, which was to be conducted by Investigator Peter Brannon, a polygraph expert employed by the State, was to inquire into the sexual assault upon B.B. The form indicated that defendant was waiving his right to remain silent. Defendant acknowledged that he was entering into the stipulation freely and willingly and that the examiner's opinion would be admissible at trial. Defendant also waived any and all objections to the admissibility of Brannon's expert testimony but reserved the right to cross-examine Brannon regarding his qualifications, the manner in which the examination was conducted, the questions posed, his opinion as to whether defendant exhibited evidence of deception and the possibility of error. The form also indicated that neither party had the right to introduce another polygraph expert or the results of any other polygraph examination during trial. After having each page read to him, defendant wrote on the stipulation "No question, I fully understand." Defendant initialed each page and signed the last page.

Brannon administered the polygraph test and concluded that defendant gave deceptive answers. When informed of that opinion, defendant expressed disbelief. After defendant was

again given new Miranda warnings, he gave an oral inculpatory statement followed by an eight page written confession. In it, he admitted he committed the aggravated sexual assault in the manner essentially described by the victim. The polygraph results and the written confession were admitted as evidence.

Defendant testified at the trial and told a different story. He denied that he committed the aggravated sexual assault. He admitted, however, that he voluntarily (1) participated in the lineups, (2) gave samples of blood, semen and hair, and (3) took the polygraph examination after he had been positively identified in the lineup. He testified that the confession was coerced and that Detective Klebaur supplied the answers. He said that he requested an attorney ...


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