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State v. Muhammad

March 15, 2005

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
NASEEM ABDUL MUHAMMAD, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 366 N.J. Super. 185 (2004).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, Naseem Abdul Muhammad challenges a prosecutor's repeated references at trial to Muhammad's silence at or near the time of arrest as a violation of the privilege against self-incrimination.

A Passaic County grand jury indicted Muhammad for first-degree kidnapping, first-degree aggravated sexual assault, and third-degree aggravated criminal sexual contact. The charges alleged that Muhammad kidnapped and raped M.M. The strange events that led to the charges were detailed during the eight-day trial in April 2002.

M.M. testified that at approximately 11:30 p.m. on December 22, 1999, she was walking home from her cousin's house in Paterson through an area known for prostitution. Muhammad drove up in a Nissan Maxima, pulled in front of M.M. and stopped. Muhammad, dressed in street clothes, stepped out of the vehicle, displayed a badge, and announced he was a Paterson Police Office and was arresting M.M. for prostitution. M.M. denied she was a prostitute, explaining she lived around the corner and was on her way home. Unswayed, Muhammad ordered her into the back seat of his car.

In the driver's seat, Muhammad drank from a 22-ounce bottle of Budweiser and repeated that M.M. was under arrest for prostitution. He drove to a dark, dead-end street and told M.M., "if you do me right I'll let you go." Muhammad then climbed over the front seat into the back of the car. Ignoring M.M.'s request to be taken to a police station, Muhammad put a condom on his penis, pulled M.M. by her hair, and forced her to perform oral sex. Afterwards, Muhammad ordered M.M. to take her clothes off. When she refused, Muhammad pulled M.M.'s pants down, turned her over, and engaged in vaginal intercourse with her against her will. Muhammad removed the condom, wrapped it in a paper towel, and threw it on the floor of the car. As Muhammad exited from the rear door to return to the driver's seat, M.M. picked up the paper towel containing the condom and placed it in her pocket.

Back behind the wheel, Muhammad told M.M. to get in the front passenger's seat. She refused, fearing that if she exited the car, Muhammad would take off and leave her behind. As Muhammad drove through Paterson, M.M. pointed randomly to a house and told Muhammad she lived there. When Muhammad offered to let her out, M.M. said she wanted to be taken to jail because Muhammad said she was soliciting prostitution. M.M. refused Muhammad's offer of four dollars for "her time," and continued to insist that he take her to a jail.

Eventually, Muhammad and M.M. arrived at Paterson police headquarters. They entered the building together, and Muhammad told the sergeant that he had brought M.M. in because she was harassing his brother and sister. M.M. interrupted and accused Muhammad of lying, adding that he had identified himself as a police officer and had raped her. M.M. produced the condom, which she offered as proof.

According to the desk sergeant, Muhammad identified himself as a Passaic police officer. Muhammad stated that he was in Paterson visiting his brother and sister, who had been harassed by M.M., a neighborhood resident. Muhammad further said that he ordered M.M. into his car for the purpose of scaring her into leaving his brother and sister alone. However, M.M. became upset and insisted he take her to headquarters.

M.M. gave the desk sergeant a completely different story, claiming that Muhammad had abducted and raped her. When M.M. produced the paper towel containing the condom, Muhammad became nervous. He stated that he was married and just wanted to go home. The desk sergeant advised Muhammad that he could not leave and that there was going to have to be an investigation. After an investigating officer took M.M.'s statement, Muhammad was placed under arrest.

The condom and paper towel were submitted to a laboratory for DNA testing. The State and Muhammad stipulated that the material found in those items included a mixture of DNA consistent with Muhammad and M.M.

The jury learned during M.M.'s testimony that she had convictions for child abuse, distribution of drugs, and shoplifting; that she had been arrested for creating a public disturbance and stabbing her brother; and that she had several aliases. The jury also learned that M.M. weighed over 210 pounds on the night of the incident and that there were no rips or tears in the pants she wore that evening. Using those facts, defense counsel attempted to cast doubt on M.M.'s account of the assault in the back seat of the Maxima, suggesting that, based on her size, the sexual assault could not have occurred as she had testified. M.M. testified that she had never been a prostitute, and she claimed that as a result of the assault, she suffered psychological trauma and nightmares and took illegal drugs "as a way out."

Muhammad did not testify.

Defense counsel, in his opening and closing remarks, suggested that M.M. was a prostitute with whom Muhammad had a consensual sexual encounter. The prosecutor, through questioning of witnesses and in his opening and closing remarks, repeatedly referenced Muhammad's failure to make any mention at police headquarters of a consensual encounter with M.M. or that she was a prostitute. Defense counsel objected to these remarks and the testimony of the police officers on this issue. For the most part, the trial court overruled the objections. The trial court also refused to grant Muhammad's motion for a mistrial or to give a curative or limiting instruction.

The jury acquitted Muhammad of first-degree kidnapping, first-degree aggravated sexual assault, third-degree aggravated criminal sexual contact, and the lesser-included offense of second-degree sexual assault. The jury convicted Muhammad of the lesser-included offense of fourth-degree criminal sexual contact, and deadlocked on the lesser-included charge of second-degree kidnapping. On the State's motion, the trial court dismissed the second-degree kidnapping charge. On the criminal sexual contact conviction, the court sentenced Muhammad to an eighteen-month prison term.

The Appellate Division reversed the conviction, holding that the prosecutor's repeated use of Muhammad's silence at or near the time of his arrest as evidence of guilt violated Muhammad's state privilege against self-incrimination. 366 N.J. Super. 185 (App. Div. 2004). It concluded that the State's repeated references to

Muhammad's failure to disclose his consent defense impermissibly penalized Muhammad for legitimately exercising his constitutional and common law right to remain silent in the face of the accusation.

The Appellate Division also held that the trial court erred when it charged the jury on the lesser-included offense of criminal sexual contact. According to the panel, the evidence of forced penetration supported only the aggravated sexual assault charge and not the sexual contact charge, which requires proof of intentional touching.

The Supreme Court granted the State's petition for certification.

HELD: The prosecutor's repeated use of Muhammad's silence was a violation of his state law privilege against self-incrimination that was clearly capable of producing an unjust result. The court's charge on the lesser-included offense of sexual contact was not erroneous because neither party objected and the record provides rational support for the conviction.

1. The prosecutor's arguments to the jury and the answers elicited from the State's witnesses were direct references to Muhammad's silence. The prosecutor was entitled to let the jury know that Muhammad's claim to the police that he picked M.M. up for harassment stood in stark contrast to his attorney's trial argument of a consensual sexual encounter. However, the prosecutor went far beyond pointing out that inconsistency; instead, he called for the jury to reject the consent defense because Muhammad remained silent when he had the opportunity to present it to the police. The prosecutor intimated that an innocent man would not have stopped speaking to the police officers, but would have revealed to them the defense offered as truth at trial. (pp. 13-15)

2. New Jersey's privilege against self-incrimination, although not enshrined in the State Constitution, is deeply rooted in this State's common law and codified in both statute and an evidence rule. And, the state-law privilege is broader than its federal counterpart. Federal law generally permits the use of defendant. Under New Jersey law, a prosecutor may not use a defendant's silence when it arises "at or near" the time of arrest, during official interrogation, or while in police custody. This Court previously has held that a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not. State v. Deatore, 70 N.J. 100 (1976). (pp. 15-23)

3. When M.M. accused Muhammad of raping her and produced a used condom as proof, the desk sergeant told Muhammad he could not leave and effectively placed him in custody. With his freedom curtailed, Muhammad fell silent. At trial, the prosecutor repeatedly elicited testimony and made comments on Muhammad's silence both "at or near" the time of his arrest and when he was in police custody. Those references were patent violations of this Court's holding in Deatore. Because the Court concludes that the prosecutor's violation of Muhammad's state law privilege against self-incrimination was "clearly capable of producing an unjust result," the Court is constrained to reverse the conviction. (pp. 23-25)

4. The next question is whether the trial court committed plain error in charging criminal sexual contact to the jury. Sexual contact is defined as an intentional touching by the victim or actor of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or gratifying the actor. Such touching could be a necessary prelude to the act of penetration or could occur without penetration at all. At the end of the State's case, Muhammad did not file a motion for a judgment of acquittal on any charge for a lack of evidence. He did not object to the trial court instructing the jury on the lesser-included offense of criminal sexual contact. One may reasonably surmise that no such objection was raised at trial because Muhammad was content to give the jury the option of finding him guilty of a less serious offense. Now, Muhammad submits that based on M.M.'s testimony, the evidence supported only one theory - sexual assault - and that the jury's only choice should have been between a conviction of that crime and acquittal. (pp. 25-29)

5. When a court charges a lesser-included offense and neither party objects, as in this case, a conviction on the lesser charge is upheld so long as the evidence in the record provides rational support for the conviction. The jurors in this case were entitled to believe all, none, or part of the account offered by M.M. The verdict might reflect the fact that the jury credited only part of M.M.'s testimony, and concluded that Muhammad touched M.M. or himself in her presence, but did not penetrate her. Muhammad also argues that the sexual contact conviction was an unlawful compromise verdict because any contact was necessarily incidental to sexual penetration, and the jury acquitted Muhammad on the charge of sexual assault. The Court does not accept Muhammad's premise that the verdicts were necessarily inconsistent, but even if it did, it would reject his claim. Consistency in the verdict is not necessary. In reviewing a jury finding, courts determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty. Courts do not speculate whether verdicts resulted from lenity, mistake, or compromise. Accordingly, there is no bar to a retrial on the charge of criminal sexual contact. (pp. 29-32)

The Court AFFIRMS the Appellate Division's holding that the prosecutor improperly elicited testimony and commented on Muhammad's silence; and REVERSES the holding that insufficient evidence was submitted to support a charge of criminal sexual contact. The matter is REMANDED for a new trial on the charge of criminal sexual contact consistent with this opinion.

JUSTICE RIVERA-SOTO has filed a separate, CONCURRING opinion, to note that the prosecutor's comments were improper only to the extent that they referenced Muhammad's post-custody silence, and that references to Muhammad's statements and/or silence prior to that time did not implicate the right against self-incrimination.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO has filed a separate, concurring opinion.

The opinion of the court was delivered by: Justice Albin

Argued October 12, 2004

A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his state law privilege against self-incrimination. In this case, we reaffirm that a suspect's silence while in custody, under interrogation, or "at or near" the time of his arrest cannot be used against him in a criminal trial. We agree with the Appellate Division that the prosecutor's improper use of defendant's pre-arrest silence as evidence of guilt requires the reversal of his conviction of criminal sexual contact. We disagree, however, with the appellate panel's conclusion that the trial court did not have a rational basis to instruct the jury on the charged offense of aggravated criminal sexual contact and the lesser-included offense of sexual contact. Because defendant's conviction was supported by sufficient evidence in the record, we also reject defendant's argument that any seeming inconsistency between the verdict acquitting him of the sexual assault charges and convicting him of sexual contact warranted a dismissal. We, therefore, vacate the panel's entry of a judgment of acquittal on the sexual contact charge. In light of the prosecutor's improper use of defendant's pre-arrest silence, we remand for a new trial.

I.

A Passaic County grand jury indicted defendant Naseem Abdul Muhammad for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The charges alleged that defendant abducted and raped M.M. The strange events that led to those charges were detailed at defendant's eight-day jury trial in April 2002.

M.M. testified that at approximately 11:30 p.m. on December 22, 1999, she was walking home from her cousin's house in Paterson through an area known for prostitution. As she approached the corner of Ellison Place and East 22nd Street, a slowly driven Nissan Maxima pulled up in front of her and stopped. Defendant, dressed in street clothes, stepped out of the vehicle, displayed a silver badge and identification card, and announced, "I'm a Paterson Police Officer, you're under arrest for soliciting prostitution."*fn1 M.M. denied that she was a prostitute, explaining that she lived around the corner and was on her way home. Unswayed, defendant told her that she was "going down for soliciting" and ordered her to get into the back seat of his car.

In the driver's seat, defendant drank from a 22-ounce bottle of Budweiser and repeated that M.M. was under arrest for prostitution. He drove to a dark, dead-end street, where he parked the car and told M.M., "if you do me right I'll let you go." After M.M. expressed uncertainty about the meaning of that offer, defendant said the words again and then climbed over the front seat into the back passenger area. Ignoring M.M.'s request to be taken to the police station, defendant put a condom on his penis, pulled M.M. by her hair, and forced her to perform oral sex. Afterwards, defendant ordered M.M. to take her clothes off. When she refused, defendant pulled her pants down, turned her over onto her stomach, and engaged in vaginal intercourse with her against her will for fifteen to twenty minutes until he ejaculated. Defendant then removed the condom, wrapped it in a paper towel, threw it on the floor of the car, and got dressed. As he exited from the rear door to return to the driver's seat, M.M. picked up the paper towel containing the condom and placed it in her pocket.

Back behind the wheel, defendant told M.M. to put on her clothes and get in the front passenger's seat. She refused, fearing that if she exited the car, defendant would take off and leave her behind. Instead, she asked to be taken to the local jail. As defendant drove through Paterson, M.M. pointed randomly to a house and told defendant that she lived there. However, when defendant offered to let her out, she said, "I want you to take me to jail because you said I'm soliciting prostitution." M.M. later declined defendant's offer of four dollars for "[her] time," and continued to insist that he take her to jail. As defendant drove, M.M. refused defendant's offer to take his cell phone and resisted several more requests that she move to the front seat, afraid that if she stepped from the vehicle he would leave her "standing" in the street.

Eventually, defendant and M.M. arrived at Paterson police headquarters. They entered the building together and proceeded to the desk sergeant. Defendant spoke first, telling the sergeant that he had brought M.M. in because she had been harassing his brother and sister. M.M. interrupted and accused defendant of lying, adding that defendant had identified himself as a police officer and had raped her. Then, from her pocket, she produced the condom, which she offered as proof.

The testimony of the desk sergeant, Alexander DeLuccia, shed further light on what occurred at headquarters. Sergeant DeLuccia testified that at approximately 1:15 a.m., M.M. and defendant appeared at his desk. Defendant identified himself as a Passaic police officer, displayed his identification card and badge, and told the sergeant that he had a "problem" with M.M. With tears streaming down her face, M.M. interjected, "[h]e forced me to have sex with him." In response, defendant gave his reasons for bringing M.M. to police headquarters. He explained that earlier that evening, he had gone to East 27th Street in Paterson "to visit his adult brother and sister," both of whom were "narcotics addicts." The brother told defendant that both he and their sister had been harassed by M.M., a neighborhood resident. When defendant caught sight of M.M. leaving her apartment, he "ordered her into his car" for the purpose of "scar[ing] her into leaving his brother and sister alone." However, M.M. "became upset with his shouting" and "insisted that he take her to [h]eadquarters."

M.M. gave Sergeant DeLuccia an account at complete odds with defendant's story. She described how defendant abducted and raped her, and showed him a "paper towel curled up in her hand," which she identified as "'the rubber that he used on me.'" At that point, defendant became nervous, stating he was married and wanted "to go home." The sergeant advised defendant that he could not leave and that there was "going to have to be an investigation." A police officer standing close by overheard that conversation and immediately positioned himself near defendant, and at the sergeant's direction, escorted defendant to the patrol captain's office lounge.

The follow-up investigation was conducted by Officer Louis DeLucca, who testified that in the early morning hours of December 23, he was dispatched to headquarters concerning an alleged sexual assault. He first interviewed M.M. and took from her, as evidence, the condom and paper towel in which it was wrapped. Officer DeLucca spoke briefly with defendant and placed him under arrest.

M.M. was taken to the hospital where she was given medication to prevent possible infection. The condom and paper towel were submitted to a laboratory for DNA testing. Both the State and defendant stipulated that material found on those items "included a mixture of DNA consistent with" defendant and M.M. The stipulation also provided that defendant was "the major contributor of the DNA" and that there was a "1 in 1.3 sextillion chance that the [d]efendant [was] not the source of the seminal material found on the paper towel."

The jury learned during M.M.'s testimony that she had convictions for child abuse, distribution of drugs, and shoplifting; that she had been arrested for creating a public disturbance and stabbing her brother; and that she had several aliases. The jury also learned that M.M. weighed over 210 pounds on the night of the incident and that there were no rips or tears in the pants she wore that evening. Using those facts, defense counsel attempted to cast doubt on M.M.'s account of the assault in the back seat of the Maxima, suggesting that, based on her size, the sexual assault could not have occurred as she had testified. M.M. stated that she had never been a prostitute. She explained that as a result of the sexual assault, she suffered psychological trauma and nightmares, sought counseling for two years, and took illegal drugs "as a way out."

Defendant did not testify.

Defendant's counsel, in his opening and closing remarks, suggested that M.M. was a prostitute with whom defendant had a consensual sexual encounter. In turn, the prosecutor, through questioning of witnesses and in his opening and closing remarks, repeatedly referenced defendant's failure to make any mention at ...


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