On Appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-11-3929.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Grall.
Defendant, William Purnell, was convicted of kidnapping and related sexual assault and weapons offenses and sentenced to an aggregate term of twenty-five years imprisonment with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Prior to trial, because of concerns about defendant's competency to stand trial, the judge ordered him committed to Ann Klein Forensic Center (AKFC) for a competency evaluation. The report issued by a psychiatrist at AKFC asserted a lack of cooperation by defendant, noted that he "may be feigning or malingering illness or incompetence," and concluded that "no determination can be made whether [defendant] is competent to stand trial." A competency hearing was held. The psychiatrist was the only witness. He could not offer an opinion to a reasonable degree of medical certainty whether defendant was or was not competent to stand trial. When pressed by the judge, he ventured an "educated guess" that defendant was competent. The judge found that the State carried its burden of establishing defendant's competency, and defendant was tried, convicted and sentenced.
Defendant now appeals and argues:
IN VIEW OF THE DOCTOR'S TESTIMONY THAT HE COULD ONLY "GUESS" AT DEFENDANT'S COMPETENCY, THE TRIAL COURT'S FAILURE TO QUESTION THE DEFENDANT PERSONALLY, AND DEFENDANT'S ACTIONS DURING TRIAL, THE COURT VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW IN FINDING DEFENDANT COMPETENT TO STAND TRIAL.
BECAUSE THE COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON KIDNAPPING BY UNLAWFUL CONFINEMENT, AND CHARGED BOTH UNLAWFUL CONFINEMENT AND UNLAWFUL REMOVAL AS A BASIS FOR THE KIDNAPPING OFFENSE, THE COURT VIOLATED DEFENDANT'S RIGHT TO JURY UNANIMITY AND DUE PROCESS OF LAW. (Partially Raised Below)
THE COURT ERRED IN FAILING TO MERGE THE UNLAWFUL POSSESSION OF A KNIFE CONVICTION INTO THE POSSESSION OF THAT SAME KNIFE FOR AN UNLAWFUL PURPOSE.
Our review of the record leads us to conclude that the evidence at the competency hearing did not support the finding that the State proved defendant's competence to stand trial. We therefore reverse the conviction and remand for a new trial if, after an appropriate inquiry into defendant's competency, he is found fit to stand trial. We further agree with defendant that with respect to the kidnapping charge, the evidence did not warrant submission to the jury of the "unlawful confinement" alternative. We will discuss the issue briefly for the trial court's guidance in the event of a retrial. Finally, there is no need for determination of the issue raised in Point III, but we note that the State concedes, and we agree, that the conviction for possession of a knife under manifestly inappropriate circumstances (N.J.S.A. 2C:39-5d) should have been merged with the conviction for possession of the same knife for an unlawful purpose (N.J.S.A. 2C:39-4d). See State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987).
On June 3, 2002, at about 3:30 p.m., S.S., a fifth grader who had just passed her eleventh birthday, walked home from school. When she arrived at her apartment building in Bloomfield, she noticed that a man, later identified as defendant, followed her into the building. Defendant was then thirty-one years old.
The building had apartments on three floors. S.S.'s apartment was one of four apartments on the third floor. An open stairway led from the first floor to the third floor and continued one flight above the third floor to a landing where there were no apartments and which provided access to the roof. The access door to the roof was locked.
As S.S. walked up the stairs, she was aware defendant was behind her, and she stepped aside to allow him to pass. However, he did not pass. S.S. hastened her pace, and as she arrived on the third floor near the door to her apartment, defendant grabbed her from behind, placing one hand over her mouth and brandishing a knife with his other hand. He said, "I want your Ps," directed her to go up the next flight of stairs, and threatened to stab her if she screamed. S.S. complied.
When defendant and S.S. arrived on the upper landing, defendant put the knife in his pocket. Defendant unzipped his pants and forced S.S. to perform fellatio for about one minute. He then directed S.S. to turn around, take off her pants and bend down, after which he rubbed his penis against her bare buttocks for about one minute. Defendant did not ejaculate during the entire episode. Defendant then talked to S.S. for about one minute. S.S. described the conversation this way:
He starts talking to me like saying like don't scream and then he said something to me that I don't understand, like he started saying you did this, something like that. I guess he was just like messing with me. And then he said how old I am and I said I was like 11 years old and then he's like -- he's -- then he puts his pants back on when he's at the first stair in the space, he asked me how old I am again and I'm like 11 and he says please don't cry like that and then he's like nothing happened, please don't cry and he said when I -- when I leave you could go back he said.
I guess he said oh, I'm sorry, please don't cry, he's like trying to calm me down and everything. And then he's like -- he tells me that when I start leaving you can go, when you hear the door like from downstairs.
Defendant then ran down the stairs. S.S. remained on the landing until she saw him reach the bottom floor and heard the door close as he left the building. By her estimate, this took about thirty seconds. She then proceeded down one flight of stairs to her apartment and reported the incident to her mother.
When defendant left the building, the building superintendent and his wife were standing in front of the building. They saw defendant leave the building and observed that he was fixing his pants. S.S.'s mother promptly informed the superintendent about the incident. He called 911 to alert the police. He also chased defendant on foot for about ten minutes before losing sight of him. He informed the police of defendant's direction of travel and provided a description. Within one half hour of the assault, defendant was apprehended. He was brought back to the apartment building, where he was identified by the superintendent, his wife and S.S. No knife was recovered. Defendant was arrested, and has remained in custody ever since.
On November 1, 2002, an eight-count indictment was returned, charging defendant as follows: (1) first-degree kidnapping, N.J.S.A. 2C:13-1b(1); (2) first-degree aggravated sexual assault by an act of oral penetration by fellatio upon a victim less than thirteen years old, N.J.S.A. 2C:14-2a(1); (3) first-degree aggravated sexual assault by an act of penetration by fellatio during the commission of a kidnapping, N.J.S.A. 2C:14-2a(3); (4) first-degree aggravated sexual assault by an act of penetration by fellatio while armed with a knife and threatening by word or gesture to use same, N.J.S.A. 2C:14-2a(4); (5) second-degree sexual assault by engaging in sexual contact with a victim less than thirteen years old by a perpetrator at least four years older, by rubbing her buttocks with his penis, N.J.S.A. 2C:14-2b; (6) fourth-degree possession of a weapon, a knife, under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39-5d; (7) third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and (8) second-degree (amended to third-degree) endangering the welfare of a child, N.J.S.A. 2C:24-4.
The trial was conducted in November and December 2004. Defendant was convicted on all counts. He was sentenced on May 6, 2005. The judge merged count three with counts one and two and count seven with count four. The judge sentenced defendant on count one to twenty-five years imprisonment with an 85% NERA parole disqualifier. He imposed concurrent sentences on the remaining counts as follows: on count two, seventeen years imprisonment with an 85% NERA parole disqualifier; on count four, seventeen years imprisonment with an 85% NERA parole disqualifier; on count five, eight years imprisonment with an 85% NERA parole disqualifier; on count six, eighteen months imprisonment; and on count eight, four years imprisonment. The judge imposed appropriate periods of parole supervision and assessed all appropriate penalties. He also ordered community supervision for life and sex offender registration.
On November 13, 2003, about a year before trial, the trial court entered an order committing defendant to AKFC for a competency evaluation. See N.J.S.A. 2C:4-5. The record lacks detail as to the impetus for the commitment order. Throughout the transcripts of various pretrial proceedings, defense counsel repeatedly raised the issue of defendant's competence, informing the court that, in counsel's view, defendant did not understand the charges or proceedings and was unable to assist in the defense of his case. The judge who ordered the commitment and conducted the competency hearing was not the same judge that later presided over the trial. At the time of sentencing, the competency issue was revisited, and, before sentencing, the defense moved for a new trial, again arguing that defendant was incompetent to stand trial. In the colloquy at that time, the judge noted that the first judge was induced to issue the commitment and examination order based upon defense counsel's representations about defendant's perceived incapacity. Defense counsel acknowledged that those representations were part of the reason, and the first judge also "did a quick voir dire of [defendant] and determined that there was a mental health issue there as based on that quick voir dire." The prosecutor did not disagree.
Defendant was admitted to AKFC on January 22, 2004. Dr. Vinobha Gooriah, a clinical psychiatrist, interviewed defendant on three occasions, February 5, 2004 for one-half hour, March 1, 2004 for one-half hour, and March 18, 2004 for fifteen minutes. Dr. Gooriah issued a report on April 12, 2004, following the standard format for a "court report-competency to stand trial evaluation." In addition to his personal interviews, Dr. Gooriah relied upon discussions with treatment team members and members of the rehabilitation staff, defendant's overall behavior and his interaction on the unit and in rehabilitation as observed by hospital staff, hospital records and psychological assessments made at AKFC, and discovery materials pertaining to the offense.
Dr. Gooriah reported as defendant's past history and social and family history that nothing much was known about defendant, who strongly refused interaction, but he did reveal the identity of his siblings, that his mother had died two years earlier, and his father was living. In this portion of the report, Dr. Gooriah stated that defendant was living with his niece and working as a laborer, and that he had attended school through the eleventh grade in regular classes, when he dropped out to learn masonry at the Job Corps. Further, defendant denied any prior psychiatric involvement and denied past or present use of drugs or alcohol. This portion of the report concluded by stating: "Because of his reluctance to cooperate with the interview, all information provided by him should be taken with a grain of salt."
Reporting on defendant's physical and mental condition on admission, Dr. Gooriah referred to defendant's admission evaluation by Dr. Roth, a psychologist. Defendant told Dr. Roth he had used marijuana for years, possibly on a daily basis, that he had a ninth grade education and was living with his father and unemployed. He denied a history of mental illness. He reported prior incarcerations. Dr. Roth found defendant to be neat, but guarded and belligerent. He found defendant was oriented to time, place and things. He found defendant's affect was flat and apathetic, lacking appropriate intensity. Defendant denied hallucinations. His speech was normal. Dr. Roth questioned the presence of paranoia because defendant was not speaking to anyone in the jail. Defendant's thought process was concrete and he refused to participate in some of the cognitive testing. Defendant's eye contact was avoidant, and his attention and reliability were deemed mixed. Dr. Roth found defendant's insight and judgment impaired and diagnosed defendant on admission with depressive disorder, not otherwise specified.
Dr. Gooriah reported that a psychology note reflected that defendant's understanding was that his AKFC hospitalization was "because 'someone wrote it up' and he needed his teeth fix [sic]." The hospital records reflected that defendant was guarded. Defendant denied any prior involvement with the mental health system. He reported three prior arrests for controlled dangerous substance (CDS) offenses and stated that the outcome of those charges was "they let me go."
Dr. Gooriah's report stated that defendant continually refused to undergo competency testing and the necessary testing to determine competency to stand trial, and whether he had a personality disorder, mental retardation or was malingering. A psychology note in the records stated that defendant believed his charges would eventually be dismissed because "not [sic] witnesses against him have appeared." Defendant continually insisted on going back to jail.
Dr. Gooriah reported on his mental status examination. He found defendant guarded and refusing to cooperate with the assessment process, and that he did not show any evidence of abnormal involuntary movement. Dr. Gooriah found defendant well oriented to the three spheres of time, place and things. He found defendant's speech concrete, but goal directed, "whenever he decides to speak, otherwise he would shut down and refuse to continue with a conversation especially at times when he was told that his charges were sexual assault." He found defendant's affect constricted. Under "Attention span & Concentration," he noted that defendant spelled "EARTH" forwards, but refused to spell it backward, saying "it ain't no meaning." Defendant was able to repeat a few digits correctly forwards, but could not repeat them backwards. When asked to do a serial seven subtraction from $100, he declined, stating "if I had $100, I rather keep it."
Dr. Gooriah found defendant's thought processes concrete, but apparently goal directed. As to defendant's thought content, he found that defendant was preoccupied with getting discharged back to the jail, because "they will have to dismiss the charges and send him back home." Defendant denied auditory or visual hallucinations and denied suicidal or homicidal ideation, intent or plan. He showed no overt evidence of paranoia nor that he was reacting to internal stimuli.
As the interview progressed, defendant became defensive and uncooperative. He was unable to spell routine words, a circumstance he tried to mask, telling the examiner, "I'm trying to match your voice," meaning he was attempting to spell words phonetically. Dr. Gooriah determined that defendant's intellectual functioning appeared to be in the low average or borderline range. He was unable to perform IQ testing. He determined that defendant's insight appeared limited and his judgment was fair. He repeated that defendant "reasons that eventually the charges will have to be dismissed against him and that he will [be] let go free."
Defendant was prescribed medications, including Benadryl for insomnia and Zyprexa Zydis for disorder of thought process and possible paranoia. Dr. Gooriah rendered a diagnosis of psychotic disorder, not otherwise specified.
The standard report form for a competency evaluation requires the examiner to assess the criteria for competence to stand trial as set forth in N.J.S.A. 2C:4-4. In doing so, Dr. Gooriah reported that defendant was well oriented to time, place and things. As to defendant's understanding of his "present situation in a court of criminal justice charged with a criminal offense," Dr. Gooriah reported that defendant "believes that he is charged with CDS. When he was confronted with his charges, especially the sexual assault charges, he refused to cooperate further with the interview process." As to defendant's understanding that a judge is on the bench, Dr. Gooriah explained in his report:
Although a graphic representation of how a court system functions was made and the role of the judge, prosecutor, defense attorney, jury and how the court process happens, the patient refused to proceed with the evaluation stating "just send me back to jail, tell them everything is alright" and he walked away, so it is unclear if he understands whether if [sic] there is a judge on the bench.
As to defendant's understanding of the role of a prosecutor and his defense attorney, his right not to testify, and if he testifies that he will be required to tell, to the best of his ability, the facts of what happened, the role of a jury, his right to enter into a plea bargain, the consequences of a guilty plea, and his ability to participate in an adequate presentation of his defense, see N.J.S.A. 2C:4-4, Dr. Gooriah reported that defendant "refuses to cooperate."
Dr. Gooriah noted that defendant "may be feigning or malingering illness or incompetence" because he can give you chronology of his life situation when he decides to do so. He does understand that he has charges however instead of indicating what his actual charges are he states that his charges are CDS. He also mentioned at one point in time eventually the charges will be dismissed and "they will have to let me go." This, to me, is indication that there is a likelihood of malingering occurring.
Dr. Gooriah concluded his report:
Following the institution of medication no change in [defendant's] behavior had been noted. His guardedness could be paranoia.
He is simply refusing to proceed further. Therefore, no determination can be made whether [defendant] ...