On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication April 5, 1995.
Before the Judges Dreier, Villanueva and Wefing. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
Defendant appeals from convictions of kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a; aggravated assault, N.J.S.A. 2C:12-1b(4); terroristic threats, N.J.S.A. 2C:12-3a; and possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced to concurrent terms of twenty years with a seven-year parole disqualifier for kidnapping; fifteen years with a five-year parole disqualifier for aggravated sexual assault; eighteen months for aggravated assault; four years for terroristic threats and ten years with a four-year parole disqualifier for possession of a shotgun for an unlawful purpose.
On August 12, 1988, defendant pled guilty to kidnapping in the second degree in the Supreme Court of New York, Westchester County and, on October 12, 1988, was sentenced for that crime to a New York State Prison for an indeterminate term of two to six years. Defendant was indicted in New Jersey on November 28, 1989 for first-degree kidnapping and other charges resulting in the New Jersey convictions just noted. He was also acquitted of first-degree aggravated sexual assault and possession of a weapon (screwdriver) for an unlawful purpose. At a pre-trial hearing, defendant's motion to dismiss the kidnapping charge was originally granted, but the charge was then reinstated by the trial Judge.
The victim, L.N. and defendant had lived together for approximately ten years, the last five years of which had been acrimonious. In March 1988, she and her children left defendant and moved in with her parents. Defendant was extremely jealous and apparently in the past had been violent with the victim.
Shortly before the incidents giving rise to this case, defendant went to the victim's parents' house to see her, but was driven away at gunpoint by her father. On the morning of June 2, 1988, defendant waited for L.N. to drive by on Central Avenue in Mamaroneck, New York, while she was on her way to work as a housekeeper in Larchmont, New York. Defendant stopped L.N. by firing a shot in the air with a shotgun. He allegedly had first removed the pellets from the shotgun shell. L.N. tried to avoid defendant by putting her car in reverse but could not get away because she was on a one way street and was blocked by traffic. *fn1 Defendant, while pointing the shotgun at L.N., ran toward her car, opened the driver side door and told her: "Move over, motherfucker. I'm going to kill you today." L.N. moved into the passenger seat, and defendant took the wheel.
Defendant put the gun in the back seat of the car and drove L.N. to a Connecticut bank so she could withdraw money, telling her, "I'm going to kill you and I'm going to need the money to get away." On the way to find a bank, defendant stopped at a phone, tied the victim's hands and feet with shoelaces from her sneakers and called her employers to inform them she would not be coming to work that day. After defendant returned to the car, he untied L.N. Defendant then found a Connecticut bank that was open, held a screwdriver at the victim's back and forced her to use the cash machine to withdraw $200 from her account.
Defendant instructed L.N. to drive when they reentered the car, and defendant placed the shotgun on the seat between L.N. and himself. Defendant told L.N. to head through New York to New Jersey in case someone had witnessed the abduction and called the New York police (which apparently someone had done). Once they arrived in New Jersey, they drove from place to place and ended up at the Econo Lodge in East Windsor, where defendant had L.N. register for a room after telling her not to make any funny moves. Defendant disassembled his shotgun and left it in the trunk of the car.
In the hotel room, defendant shook the screwdriver at the victim and told her they should get back together. L.N. went along with him because she was afraid of what defendant might do to her if she did not. Defendant then had sexual relations with L.N. Later that same day, they continued to discuss their relationship, leaving the hotel room only to get food. Defendant would periodically get angry and accuse L.N. of seeing other men, and L.N. would tell him that their relationship could not work if he could not believe her. Defendant also called a mutual friend to tell her they were getting back together and had L.N. get on the phone to confirm this assertion. Defendant then again accused L.N. of not being faithful, and L.N. reiterated to defendant that they could not get back together if he insisted upon making those accusations. Defendant then tied L.N. to a table, left the room and returned carrying the gun. Defendant held the gun to the victim's head saying: "I should kill you." After L.N. pleaded with defendant not to kill her and told him that they would get back together, defendant eventually untied L.N. and put away the gun. That night when L.N. awoke to use the bathroom, defendant also got out of bed and stood outside the bathroom door.
The next day, after having breakfast, defendant bought a pair of scissors and had L.N. cut his hair. L.N. did not attempt to escape while she had the scissors because she was afraid of what would happen to her if she did not succeed. L.N. kept defendant calm by complying with him.
After they checked out of the hotel on June 3, 1988, L.N. drove to defendant's friend's home in Stamford, Connecticut so defendant could drop off his gun. Defendant then removed one of the license plates from the victim's car and had L.N. report the plate as stolen in order to get new plates which defendant put on hercar. They went to the victim's sister-in-law's home, where defendant had been staying. L.N. and her sister-in-law had not spoken since a disagreement they had three years prior. They remained at the sister-in-law's home until defendant dropped L.N. at work on Monday morning. There, L.N. informed her employer what defendant had done to her. Defendant was arrested on June 6, 1988 by the Mamaroneck, New York police when he returned to pick up L.N. from work.
L.N. testified that the last five out of the ten years she lived with defendant were "hell." She described many incidents where defendant beat her and threatened her and her children. L.N. stated that defendant had become very suspicious of her, watched her every move and tried to control her. L.N. explained how defendant would accuse her of seeing other men and beat her, including one time when he took her to a reservoir and held her head under water. *fn2
At a pre-trial hearing, defendant moved to dismiss Count I, (kidnapping), on the basis that he had already been convicted of that crime in New York based on the same acts. Also, after an Evid. R. 8(1) (now N.J.R.E. 104(a)) hearing to exclude evidence under Evid. R. 55 (now N.J.R.E. 404), the Judge ruled that prior abusive incidents between L.N. and defendant could be introduced in the State's case in chief to provide a foundation for the expert's testimony.
At a pre-trial hearing required by State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), the Judge determined that the defense failed to meet its burden of showing undue prejudice by the admission of defendant's prior convictions to impeach his credibility. This ruling included defendant's New York conviction for abduction of the victim in this case. Thus when defendant testified, the State introduced both defendant's 1985 conviction for carrying a pistol without a permit in a third degree assault and his 1988 conviction for kidnapping in New York State.
Dr. Kabus, a psychologist and clinical director of the Women's Center in Mercer County, testified for the State that the victim's actions were consistent with those of one suffering from Battered Woman's Syndrome. Dr. Kabus based her Conclusion on the documents provided to her in the present case, as well as a two and one-half hour interview with L.N.
Defendant raises the following issues on this appeal:
THE TRIAL COURT ERRED IN REINSTATING THE NEW JERSEY KIDNAPPING CHARGE BECAUSE JOHN ELLIS WAS CONVICTED AND SENTENCED IN NEW YORK FOR THE "SAME CONDUCT." N.J.S.A. 2C:1-3f.
THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF EXTENSIVE EVIDENCE OF CRIMES NOT INCLUDED IN THE INDICTMENT, HEARSAY EVIDENCE AND BROAD EXPERT EVIDENCE REGARDING BATTERED WOMAN'S SYNDROME WITHOUT ADEQUATE OR SUFFICIENT LIMITING INSTRUCTIONS. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10). (Partially Raised below).