On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Petrella, Baime and Conley. The opinion of the court was delivered by Baime, J.A.D.
[269 NJSuper Page 350] Following a protracted jury trial, defendant was found guilty of first degree kidnapping (N.J.S.A. 2C:13-1b), third degree criminal restraint (N.J.S.A. 2C:13-2a), third degree criminal coercion (N.J.S.A. 2C:13-5a(1)), third degree terroristic threats (N.J.S.A. 2C:12-3a and b), possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d), four counts of aggravated sexual assault (N.J.S.A. 2C:14-2a(3) and (4)), four counts of sexual assault (N.J.S.A. 2C:14-2c(1)), criminal sexual contact (N.J.S.A. 2C:14-3b), second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), third degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)), and fourth degree possession of a weapon under manifestly inappropriate circumstances (N.J.S.A. 2C:39-5d). Based upon defendant's extensive record of criminality, which included three prior rape convictions, the trial court granted the State's motion for an extended term and imposed a sentence of life imprisonment with a 25 year parole disqualifier on one of the four aggravated sexual assault counts. On the first degree kidnapping
count, defendant was sentenced to a consecutive 30 year term, one-half of which to be served without parole eligibility. Concurrent maximum sentences were imposed on the remaining convictions for aggravated sexual assault, second degree aggravated assault and possession of a weapon for an unlawful purpose. One-half of these sentences is to be served without parole eligibility. Applying the doctrine of merger, the Judge vacated the jury's verdict of guilty on the remaining counts. Thus, defendant's aggregate sentence is life imprisonment plus 30 years. Defendant is to serve 40 years without parole eligibility.
On appeal, defendant contends that (1) the trial court abused its discretion by finding good cause for continuance of the trial under the Interstate Agreement on Detainers (IAD) (N.J.S.A. 2A:159A-1 to -15), (2) the trial court committed constitutional error by denying his motion to dismiss his attorney and represent himself, (3) evidence pertaining to his attempt to solicit a prison inmate to kill the complaining witness in order to prevent her from testifying was improperly admitted, and (4) the trial court erroneously omitted from its instructions to the jury defendant's claim of intoxication. In his supplemental pro se brief, defendant raises the additional arguments that (1) he was denied the effective assistance of counsel at trial, (2) his present appellate attorney is incompetent and his representation of defendant does not comport with Sixth Amendment standards, (3) he was denied a fair trial by reason of prosecutorial misconduct, (4) his indictment should have been dismissed on the ground of double jeopardy, (5) the trial court improperly permitted the State to amend the indictment, (6) he was denied his right to a speedy trial, (7) he was improperly excluded from the hearing on the prosecutor's motion for a continuance under the IAD, (8) the trial court's preliminary instructions deprived him of a fair trial, (9) the State's proofs were inadequate because the victim failed to identify him at trial, and (10) the trial court abused its discretion by imposing consecutive sentences. We find no error warranting a reversal of defendant's convictions.
At the outset, we note that the State's evidence against defendant was overwhelming. The trial record shrieks of defendant's guilt. According to the victim, N.K., she first met defendant on the evening of August 5, 1988, at the Carousel Lounge in Long Branch, New Jersey. After buying N.K. a drink and engaging in innocuous conversation, defendant requested a ride to his home which he said was located several miles from the bar. N.K. acceded to defendant's request after one of her friends agreed to follow them in his automobile. According to N.K., her friendly gesture ultimately resulted in a terror-filled odyssey through New Jersey and Pennsylvania during which she was brutally beaten and repeatedly raped and sodomized.
N.K. testified that defendant initially appeared friendly and non-threatening. Pursuant to defendant's instructions, N.K. took a meandering course ultimately returning to the Carousel Lounge. N.K.'s friend apparently lost interest and ceased following the victim's automobile. While in the parking lot, defendant briefly exited from N.K.'s car. When N.K. attempted to close the car door, defendant's demeanor suddenly changed. According to N.K., defendant jumped into the automobile, placed a knife to her chest, and threatened "to cut [her] fucking heart out." After a brief struggle, defendant gained control over the automobile. While driving, defendant repeatedly struck N.K.'s face with his fist, telling her that he was "going to kill [her]."
The two ultimately wound up at a gasoline station off the Garden State Parkway. As the attendant approached the automobile, defendant pretended to kiss N.K. while actually biting her lips and cheeks. When N.K. attempted to escape, defendant grabbed her and threw her into the passenger seat. As the automobile pulled out of the station, N.K. managed to "scream." Although initially stunned by these events, the attendant contacted the police. At trial, he testified that he noticed "bruises" and "marks" on N.K.'s face.
Upon departing from the gasoline station, defendant locked his arm around N.K.'s head and threatened to "crush [her] skull," screaming "you're fucking dead." After driving approximately five minutes, defendant forced N.K. to perform oral sex on him, while yelling "suck my dick bitch, act like you like it." Defendant eventually pulled off the road into the back of a factory parking lot. He then raped N.K. vaginally while in the automobile. Defendant then threw the victim out of the car and pushed her onto the front hood, where he again penetrated her vaginally. After completing this act, defendant wrestled N.K. to the side of the automobile where he forced her to commit fellatio. He then dragged her to the back of the automobile where he sodomized the victim, proclaiming "[I] like it when [you] cr[y], it turn[s] [me] on." Defendant forced N.K. into the automobile, intermittently choking and threatening the victim.
After leaving the parking lot, the two drove to a desolate dirt road in Pennsylvania, where defendant again forced N.K. to perform oral sex. They then walked to a garbage-strewn house where they met defendant's nephew, David Morgan. When N.K. told Morgan that she had been kidnapped, Morgan responded by laughing. Defendant's other nephew, Bobby (Burl) Morgan, then appeared but he was no more helpful than his brother.
Suffice it to say that N.K.'s nightmare continued at the Morgan residence. Defendant and David Morgan sadistically "played" with various weapons, including "guns and knives[,]" while N.K. watched in horror. Defendant preyed upon N.K.'s fear by taunting her with a firearm. Defendant told the victim he intended to "sell" her to the Morgans so that they could "keep her." When Bobby Morgan left the house, defendant told N.K. it was because he knew she would be killed. Later in the evening, defendant again raped N.K. vaginally.
At approximately 8:00 p.m. that evening, defendant and N.K. left the house. Sensing that her survival depended upon gaining defendant's confidence, N.K. ingested a small amount of "speed" and advised defendant to conceal his portion in his boot. At some
point, Officers Daniel Cloutier and Robert Phillips of the Schuylkill Haven Police Department stopped N.K.'s automobile for a traffic infraction. Upon approaching the passenger side of the vehicle, Officer Phillips noticed that "[t]he right side of [N.K.'s] face from her temple down to her chin area . . . was all black and blue." He also noticed that she was "fidgeting in her seat, looking back and forth to the driver" and silently mouthing the words "help me." Officer Phillips opened the passenger side door allowing N.K. to escape from the automobile and enter the police vehicle where she immediately locked the doors. When defendant attempted to exit from the driver's side, Officer Phillips ordered him to remain in the car. The officer then approached the police vehicle and noticed N.K. curled in the "fetal position." The officer asked N.K. what was wrong. She responded that defendant had kidnapped and raped her. As Phillips instructed Cloutier to restrain defendant, the latter sped away, ultimately eluding the police after a high speed chase. N.K. was later hospitalized in a state of shock. The victim's injuries comported with her description of defendant's violent attacks.
Defendant was apprehended by FBI agents when he returned to the Morgan residence more than one month after the incident. He was taken into federal custody on September 28, 1988. While awaiting trial, defendant wrote a series of letters to a fellow inmate who was soon to be released, asking him to kill N.K. so that she could not testify against him. In these letters, defendant noted that, without N.K., the prosecution had no evidence, and therefore "the dame got to go . . . [and] never be found." After apprising the inmate of N.K.'s general schedule, defendant instructed him to "sit," "wait" and "snatch" her. For murdering N.K., defendant promised the inmate that he would kill someone for him, noting that he would "off anybody" and "return [the favor] a thousand times if necessary."
Prior to the prosecution in New Jersey, defendant was tried and convicted of kidnapping by transporting the victim across state lines under the Federal Kidnapping Act (18 U.S.C.A. § 1201(a)(1)).
He was then tried and convicted of the crimes committed in Pennsylvania by that state's authorities. It is against this factual backdrop that we consider defendant's arguments.
Defendant first contends that the trial court erred when it granted the State's motion for a continuance of the trial pursuant to the IAD. The salient facts underlying this claim can be briefly summarized.
On May 7, 1990, defendant, while in federal custody at the United States Penitentiary in Marion, Illinois, requested Disposition of the New Jersey detainer. This request was received 0 by the Monmouth County Prosecutor's Office on May 18, 1990. On August 21, 1990, the prosecutor requested temporary custody of defendant for the week of September 10, with the trial to begin on September 24, 1990. Apparently, defendant was on trial in Pennsylvania during the summer months of 1990. In any event, after completion of the Pennsylvania proceedings, defendant was returned to the Federal Penitentiary in Illinois. Federal prison officials initially refused to release defendant to the transport service the prosecutor's office had retained. The record does not disclose the reason for this refusal. We note parenthetically that defendant had a lengthy history of incarceration and had attempted to escape on several occasions. It is possible that the federal authorities' refusal to release defendant to the transport service provided by the prosecutor was somehow related to these incidents. In any event, the record is largely uninformative on this point and we find it irrelevant to our Disposition of the issues raised.
Defendant was transported to New Jersey on October 5, 1990. Although less than 180 days had elapsed from the date of defendant's request for Disposition of the charges, 1 the prosecutor was granted a continuance on November 2, 1990. The trial was ...