On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Number 98-11-1031-I.
Before Judges Havey, Newman and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant M.J.K. was charged in Passaic County Indictment No. 98-03-0329-I with second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(4); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and third-degree criminal restraint, N.J.S.A. 2C:13-2a. A superceding indictment, No. 98-11-1031-I, added a charge of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and N.J.S.A. 2C:13-1b(2).
In pre-trial proceedings, certain statements defendant made to police investigators were suppressed. The judge determined, following a hearing, that because of defendant's neurological impairment and significant deficiencies in ability to understand verbal and written material, the State had not met its burden of demonstrating that he had the cognitive ability to knowingly and intelligently waive his Miranda*fn1 rights. At the same time, other statements defendant made and evidence found in a vehicle searched based on defendant's consent were deemed admissible because the judge determined that the statements were made voluntarily and that the discovery of the evidence would have been inevitable.
After extensive pre-trial hearings, the judge issued a written opinion finding defendant competent to stand trial. Following a jury trial thereafter, defendant was found guilty of third-degree criminal restraint, N.J.S.A. 2C:13-2a, and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was acquitted by the jury of all of the other charges. His post-trial motion for acquittal on the weapon possession charge was denied.
Thereafter, defendant was sentenced on the third-degree possession of a weapon for an unlawful purpose charge to a term of five years probation with 364 days to be served in the county jail, conditioned upon no contact with the victim or her family. In addition, defendant was ordered to undergo psychological or psychiatric counseling, to participate in vocational training and to reside with his father pending further order of the court upon his release from jail. He was also sentenced to the same term and the same conditions on the third-degree criminal restraint charge, to be served concurrently. The sentence was thereafter stayed pending disposition of this appeal.
On appeal, defendant raises the following points.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT WAS COMPETENT TO STAND TRIAL.
THE TRIAL COURT ERRED IN RULING THAT THE ITEMS SEIZED FROM DEFENDANT'S VEHICLE WERE ADMISSIBLE UNDER THE INEVITABLE DISCOVERY RULE.
THE TRIAL COURT ERRED IN THE APPLICATION OF AGGRAVATING AND MITIGATING FACTORS AT SENTENCING.
THE TRIAL COURT ERRED IN RULING THAT THE STATE COULD CROSS-EXAMINE THE DEFENDANT'S EXPERT PSYCHOLOGIST, IF CALLED AS A WITNESS, REGARDING AFFIRMATIVE DEFENSES NOT INTRODUCED BY THE DEFENDANT.
[THE TRIAL COURT] ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INASMUCH AS DEFENDANT WAS FOUND NOT GUILTY OF THE CRIMES CHARGED AS THE UNLAWFUL PURPOSE.
Because we find merit in defendant's arguments concerning the judge's finding that he was competent to stand trial and because we reverse based on our analysis of that argument, we need not address the other arguments included in defendant's appeal. We turn then to our consideration of the issues relating to defendant's competence.
The facts that gave rise to defendant's arrest and indictment, as presented by the State, may be summarized as follows. On January 6, 1998, S.R., who was a student at Lakeland Regional High School, was leaving school after participating in a fencing meet. At some time between 6:15 p.m. and 6:30 p.m., S.R. was outside of the school, standing between the so-called new and old school buildings. She was waiting for her father to arrive, having telephoned him for a ride home. She saw defendant, a former student, who was also outside of the school, and who was pacing back and forth. At the time, she knew who defendant was although she did not personally know him. As she was standing facing the street, he approached her from behind, put one hand on her mouth and held a knife to her throat.
S.R. asked defendant what he wanted, to which he responded"Just start walking, you'll know soon enough." He then pushed her toward a dark alcove, a distance later measured to be approximately three hundred and seventy-four feet. S.R. believed that if she crouched down she might be able to get away from him, so she intentionally fell to the ground, with the result that defendant tripped and fell on top of her. The two struggled on the ground, as S.R. called for help and began to kick defendant in the groin. During the struggle, she noticed that defendant was wearing thick glasses which she grabbed off of his face, prompting him to tell her not to hurt his glasses. As the struggle continued, S.R. saw her father's car and called to him for help, which startled defendant who then released her, at which point she kicked him in the face and ran away.
S.R. then told her father that defendant had tried to rape her and she used her father's cell phone to call the police. Her father, B.R., saw defendant, who was still near the alcove and who was holding a knife with a red handle. B.R. and another adult who had arrived then began to chase defendant. A short time later, aided by one of the teachers who was at the school for a basketball game, they found defendant in the parking lot. The teacher recognized defendant as a former student. When the teacher asked him why he had dirt and leaves on his clothes, defendant said that he had been wrestling with a girl. The teacher, noticing that defendant had an object in his hand, asked him what it was and asked defendant to give it to him. Defendant complied and gave the teacher a Swiss Army knife.
The question of defendant's competence to stand trial was extensively studied, with four different experts offering opinions on the subject. For purposes of this opinion, we first note that much of the factual background concerning defendant and relevant to his competence was revealed in his school records and is undisputed. We therefore summarize that background evidence as follows. Defendant was first referred for an evaluation in 1983 when he entered kindergarten. That evaluation revealed that defendant suffered from a significant delay in acquisition of language skills, perseverative behaviors and difficulty in gross and fine motor skills. As a result, he was classified for educational purposes as neurologically impaired, a classification later changed to perceptually impaired. ...