On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Shebell, Skillman and D'Annunzio. The opinion of the court was delivered by Shebell, J.A.D.
The opinion of the court was delivered by
Defendant, Thomas Lozada, Jr., appeals from his jury convictions and the increased sentence imposed following our grant of a new trial on an indictment charging aggravated sexual assault (N.J.S.A. 2C:14-2a(3)), sexual assault (N.J.S.A. 2C:14-2c), aggravated assault (N.J.S.A. 2C:12-1b(1)), and burglary (two counts) (N.J.S.A. 2C:18-2). Defendant's present sentence aggregated two indeterminate terms not to exceed twenty-two years, whereas the original indeterminate sentences imposed were limited to fifteen years maximum incarceration.
Defendant raises the following arguments on appeal:
POINT I: THE TRIAL COURT ERRED IN ADMITTING THE DEFENDANT'S STATEMENTS.
POINT II: VIOLATIONS OF THE RULES OF DISCOVERY MANDATE REVERSAL OF THE DEFENDANT'S CONVICTION.
POINT III: THE TRIAL COURT ERRED IN ADMITTING CERTAIN ITEMS INTO EVIDENCE .
POINT IV: THE TRIAL COURT ERRED IN DENYING A MISTRIAL AFTER THE VICTIM'S PREJUDICIAL OUTBURST BEFORE THE JURY.
POINT V: THE TRIAL COURT ERRED IN REFUSING TO ADMIT PART OF THE DEFENDANT'S STATEMENT INTO EVIDENCE.
POINT VI: THE TRIAL COURT ERRED IN IMPOSING SENTENCE .
POINT VII: CUMULATIVE ERROR REQUIRES REVERSAL OF THE CONVICTIONS .
Defendant was arrested on March 25, 1985, and subsequently indicted on charges on which he has twice been tried and convicted. His first trial was in January, 1986, and he was sentenced on May 3, 1986 as follows:
Count one: Sexual assault during the commission of a burglary in violation of 2C:14-2(a)(3): Indeterminate term not to exceed 15 years at Yardville, $25 V.C.C.B.;
Count two: Sexual assault by the use of force in violation of 2C:14-2(c): merged into count one;
Count three: Aggravated assault in violation of 2C:12-1(b)(1): Indeterminate term not to exceed 7 years at Yardville, $25 V.C.C.B. penalty to run concurrently with count one;
Count four: Burglary while purposefully inflicting injury in violation of 2C:18-2 merged into count one;
Count five: Burglary in violation of 2C:18-2 merged into count one.
We reversed his convictions on August 17, 1987.
Defendant's retrial took place during November and December, 1988. On April 24, 1989, he was sentenced on count one, aggravated sexual assault, to an indeterminate term not to exceed fifteen years. On count three defendant was sentenced to an indeterminate term not to exceed seven years with the sentence to run concurrently with count one. On count four, burglary, he was sentenced to a consecutive indeterminate term not to exceed seven-years. Count two was merged into count one, and count five was merged into count four.
The evidence reflects that on March 25, 1985, M.D. was living on York Street in Jersey City, when at around midnight, she was awakened by the presence of a man on top of her trying to rape her. The perpetrator inserted his finger into her vagina and also punched her about the head and face. M.D. screamed
and fought her attacker, biting his hand. Her screams drew the attention of her upstairs neighbor, who banged on the front door and shouted that she had summoned the police. The assailant then ran toward the back of the house.
The police arrived almost immediately. M.D. described the attacker as a light-skinned male, either Caucasian or Hispanic, wearing a grey sweatshirt with the hood pulled up. The police apprehended defendant a few blocks away. He was running and out of breath, his clothes were disheveled, he was bruised, and his hand was bleeding. Defendant was wearing a greyhooded sweatshirt and grey sweatpants, both of which had blood on them. The victim accompanied them to a police car where defendant was sitting, but she was unable to identify him at that time. She was bleeding and was taken to the hospital where she was examined and treated for contusions, a broken nose, and loose teeth. Head and pubic hair samples were taken from M.D. at the hospital.
Defendant and his girlfriend testified that on the evening of the attack at around 6:30 p.m., he had visited his girlfriend's home on Fourth Street, Jersey City. During the course of an argument, the girlfriend allegedly bit his hand. He immediately left her apartment and returned home. When he arrived home, his sister, mother, and a family friend noticed that his hand was bleeding. His girlfriend allegedly called him and asked him to return to her house. He went back at 7:00 p.m. and stayed until about 11:30 p.m., when her mother had him leave. Defendant took a shortcut through Montgomery Street Park. As he left the park, he was followed by an unmarked police car which had its lights off. When he got closer to his house, a detective jumped from the car, seized and arrested him. Defendant alleged that the detective beat him and injured his wrists with the handcuffs. Defendant denied any knowledge of the attack on M.D.
Prior to trial, an Evid.R. 8 hearing was held concerning the admissibility of statements made by defendant to an investigator
of the Hudson County Prosecutor's Office, who had spoken with defendant after his arrest. The investigator read defendant Miranda warnings before questioning him, and defendant signed a Miranda card, which was witnessed by another officer. Defendant requested an attorney after he was given the Miranda warnings, and, therefore, the questioning was immediately suspended. The investigator, however, remained in the bullpen area with defendant. According to the investigator, the following exchange took place:
Q. Did anything happen about 15 minutes later?
[THE INVESTIGATOR]: I had been, I think, the only thing I had asked him was, if he was comfortable. I believe he wanted a handcuff removed to the other hand. He had some injuries on his hand. I had the police officer, I believe, move it. It has been awhile now and approximately fifteen minutes, he asked me if -- he asked me something in regard to how much time he could possibly get for this type of incident.
Q. Did you respond to that?
[THE INVESTIGATOR]: I informed him that he had requested an attorney and that therefore, I could not speak to him unless he wanted to talk to ...