On appeal from the Superior Court, Appellate Division.
For affirmance and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J.
Defendant, Lorenzo Oliver, was convicted of sexually assaulting two women, A.S. and A.D., and of aggravated assault on A.S. Defendant and the victims had been close friends for many years and had grown up in the same neighborhood. Each assault involved remarkably similar circumstances: the attacker lured the victims into his third-floor room while other family members were downstairs; engaged in conversation with his victims; drank some beer; and then resorted to brute force to cut off the victims' air supply until they relented.
The trial court denied defendant's motion to sever the prosecutions arising out of the separate attacks on A.S. and A.D. At a joint trial, over defendant's objection the State offered the testimony of three other women who claimed that defendant had sexually assaulted them under similar circumstances. After a hearing pursuant to Evidence Rule 8, the trial court ruled the testimony admissible under Evidence Rule 55, apparently on the grounds that the similarity of the attacks showed a common scheme or plan and was relevant to defendant's intent.
In an unreported opinion a divided panel of the Appellate Division reversed and remanded, holding that the trial court's limiting instruction regarding the Evidence Rule 55 evidence had been inadequate and that the trial court had erred in not giving the jury a no-adverse-inference instruction regarding defendant's election not to testify. The Dissenting Judge believed that the Evidence Rule 55 limiting instructions had been adequate, and that the failure to instruct on defendant's decision not to testify, although wrong, amounted to harmless error. The State appeals as of right because of the Dissent below. R. 2:2-1(a)(2). We affirm.
The State presented evidence tending to establish the following facts. A.S. and defendant had been close friends for twenty-six years; they had known each other from childhood and had grown
up in the same neighborhood. On the evening of June 2, 1988, defendant came to A.S.'s house to talk about "a case that was pending." Finding Discussion there difficult because of the presence of many other people, A.S. left with defendant at about 8:40 p.m. to go to his home in Newark. On the way defendant stopped to buy beer.
Arriving at defendant's home, the two went upstairs to his third-floor room, where he customarily entertained guests and where A.S. had visited on many other occasions. Defendant's mother and niece were downstairs, on the first floor. With music playing in the background, defendant and A.S. talked for about an hour, during which time defendant drank three or four beers. A.S. testified that defendant insisted she also have a beer, but that she did not drink much of it. After about an hour, A.S. told defendant that she needed to go back home to her children, but defendant refused to take her home. After another forty-five minutes, A.S. rose to leave. Defendant asked her to let him finish his beer. He then walked over to her, turned out the light, and grabbed her from behind. She thought he was joking and told him to "cut it out" because she had to go home. Defendant, a 250-pound part-time martial-arts instructor, refused to release his hold. They struggled, falling to the floor. During the struggle, defendant became more aggressive, telling A.S., "I want you." A.S. screamed, and defendant, from his position on top of her on the floor, covered her nose and mouth and held her down with his body weight. Unable to breathe, A.S. stopped struggling and relaxed. Defendant then removed the pressure from her nose and mouth but did not let her up. When A.S. attempted to persuade defendant that he was ruining a twenty-six-year friendship, defendant replied that he did not care. At one point A.S. thought she had "gotten through to him," and she asked him to let her get up, promising that they would talk and that she would not run.
A.S. stood up, picking up her bracelet, which had been broken in the fall. Almost immediately, the two began to fight again. During that struggle A.S. attempted to "dig [defendant's] eyes out" with a broken piece of her bracelet and to scratch defendant's
face with her fingernails. Defendant bit A.S.'s fingers, causing a fracture and a pinched nerve. The two ended up on the bed, with defendant on top. He again covered A.S.'s nose and mouth with his hands and pressed down with his body weight. A.S., afraid she would die, stopped struggling. Defendant released the pressure. She said to him, "Okay, okay Lorenzo, you wanted it, you can have it, you can have it." Defendant thereupon proceeded to have vaginal intercourse with A.S.
After the sexual assault A.S. got up, picked up her underclothes, and headed downstairs. She was dishevelled and bloody. Although she saw defendant's niece in the living room, A.S. did not say anything. She went into the bathroom to dress. When defendant came downstairs, A.S. left the house but came back in and accepted a ride home from defendant because it was almost midnight and because she "didn't know where to go" and "didn't have any transportation."
Shortly after arriving home she reported the incident to the police, then went to University Hospital for treatment of her injured finger, in the course of which she told a nurse about the sexual assault. She then went to United Hospital because only that facility had kits for use in conducting sexual-assault examinations. There she gave a complete statement about the incident.
The second victim, A.D., was a longtime close friend of defendant and of A.S. as well. She had been trying to communicate with A.S. but had been unable to do so because A.S. had recently moved and A.D. did not know where to find her. On the evening of June 14, 1988, just twelve days after his assault on A.S., defendant visited A.D. at her home. Defendant told her that he had A.S.'s new telephone number at his home. When he asked A.D. to go there with him so he could give her the number, she complied.
Although A.D. "knew there were other people home," she did not see anyone. Defendant and A.D. went to defendant's room on the third floor, where defendant turned on music and drank some beer. He then left the room for a few minutes. When he
returned, he closed the bedroom curtain and grabbed A.D. A struggle ensued, during which defendant told her he "wanted" her and that she knew how much he wanted her. Defendant told A.D. to "stop fighting him, it would only take three minutes." Defendant threw A.D. on the bed, pinned her down, and cut off her breathing by pressing his forearm against her throat. When defendant told his victim that he would let her breathe if she would "shut up" and stop fighting, she stopped struggling. He then attempted to have vaginal intercourse with A.D. but could not maintain an erection. A.D. asked him to "give up," but he proceeded to perform oral sex on A.D. Defendant drove A.D. home at about 1:30 a.m.
The State proffered the testimony of three other women, K.J., L.C.D., and J.A., who claimed to have been sexually assaulted by defendant in a similar manner. All the women had been defendant's friends; all had been lured to and attacked in his home, having gone there voluntarily at defendant's invitation for a nonsexual purpose; all had been given drugs or alcohol; all had been subdued and silenced by defendant's blocking their breathing; and all the attacks had occurred while other people occupied the house. Defendant had been tried and acquitted on charges relating to the sexual assault of L.C.D. At the time of this trial the charges concerning the sexual assault of K.J. were pending before a grand jury. After an Evidence Rule 8 hearing, the trial court ruled that the women could testify, apparently because the similarity of the attacks showed a common scheme or plan and was relevant to intent.
At the trial, the State presented the testimony of A.S., A.D., the police officer who had responded to A.S.'s call, L.C.D. and K.J., and the records clerks from the two hospitals at which A.S. had been treated. J.A. did not testify. The defense presented, among other witnesses, four of defendant's relatives who resided with him, all of whom testified that they had not seen or heard anything unusual on the nights in question. Defendant did not testify, stating for the trial record that he did not want his prior convictions to be disclosed on cross-examination. Defendant also
chose not to have the jury instructed that he had the right not to testify and that no negative inference could be drawn from his exercise of that right. After the closing arguments, but before the court began its charge to the jury, defendant changed his mind and asked that the jury be charged not to draw any adverse inference from his decision not to testify. The court responded tersely, "Too late. Tell him too late." Out of the jury's presence, the court explained its ruling by saying, "[Y]ou told me you didn't want it. One shot at the apple in my court."
A jury convicted defendant of the sexual assault and criminal restraint of both A.S. and A.D. under N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:13-2 respectively; the aggravated assault of A.S. in violation of N.J.S.A. 2C:12-1b(1); and the attempted sexual assault of A.D., contrary to N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:5-1. The court imposed an extended term of twenty-years imprisonment with seven years of parole ineligibility for the aggravated assault of A.S.; a consecutive ten-year term at the Adult Diagnostic and Treatment Center with a five-year parole disqualifier for the sexual assault of A.S.; and a consecutive eight years at the Center for attempted sexual assault of A.D., all other terms concurrent.
In reversing and remanding for a new trial, the majority below relied primarily on State v. Cofield, 127 N.J. 328, 605 A.2d 230 (1992), and State v. Stevens, 115 N.J. 289, 558 A.2d 833 (1989), as support for its holding that the "other crimes" instruction had been prejudicially inadequate. The Appellate Division further held that although the other-crime evidence might be admissible to prove the feasibility of rape under the circumstances alleged, namely, in defendant's home with other family members on the premises, and to demonstrate defendant's successful use of pretext, the trial court had erred in admitting the testimony of K.J. and L.C.D. to show a common plan or scheme within Evidence Rule 55. It therefore instructed the trial court to reconsider on remand the admissibility of the other-crime evidence as well as defendant's motion for severance in light of the Appellate Division's no-common-scheme determination. The court warned, however,
that whatever grounds for admission might be used, the limiting instruction required by Evidence Rule 6 should be detailed and specific.
Although the State seeks to raise five issues in its appeal, we confine our Disposition to those issues posed by the Dissent below. See Rule 2:2-1(a)(2) (limiting appeal as of right based on Dissent below to issues raised by Dissent).
A. Severance and the Admissibility of Other-Crimes Evidence Under Evidence Rule 55.
Defendant made a pre-trial motion under Rule 3:15-2(b) to sever counts one, two, and three, involving the alleged June 2, 1988, incident with A.S., from counts four, five, and six, involving the alleged June 14, 1988, events with A.D. In denying the motion for severance the trial court appears to have credited the State's argument that the similarity of the assaults established defendant's intent to commit crimes against those women, and/or established his common scheme or plan to lure female friends to his room under false pretenses, block their air intake to suppress resistance and outcry, and then sexually assault them; therefore, if separate trials were held, evidence of the severed charges would be admissible at the trial on the remaining charges. Although the Appellate Division did not base its reversal of defendant's conviction on the denial of the ...