On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Sabatino and Alvarez.
A Cumberland County Grand Jury returned a multi-count indictment charging defendant, Lamar Milbourne, and three co-defendants, Keon Milledge, Michael Hinson, and Davon Nichols with various offenses against two victims, K.M. and C.P. Following a jury trial, defendant was convicted of: first-degree aggravated sexual assault of K.M., N.J.S.A. 2C:14-2a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree aggravated assault as a lesser-included offense, N.J.S.A. 2C:12-16; third-degree criminal restraint, N.J.S.A. 2C:13-2a; possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree robbery N.J.S.A. 2C:15-1a; second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1); and disorderly persons simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of third-degree aggravated assault. Defendant was acquitted of second-degree aggravated assault of K.M. and C.P., N.J.S.A. 2C:12-1b(1) and third-degree terrorist threats of both victims, N.J.S.A. 2C:12-3b.
The judge denied defendant's motion for new trial and judgment notwithstanding the verdict on the kidnapping convictions. Following appropriate mergers, the judge imposed an aggregate sentence of forty years with 85% parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentence consisted of two concurrent twenty-year terms with 85% parole ineligibility on the kidnapping convictions; concurrent seventeen-year terms with 85% parole ineligibility on the merged aggravated sexual assault conviction; eight-year terms with 85% parole ineligibility on each of two of the robbery convictions, to be served consecutively with each other and the terms imposed on the aggravated sexual assault and kidnapping convictions; and an eight-year concurrent term on the conspiracy conviction. A four-year term was imposed on the third-degree assault conviction, to be served consecutively with the kidnapping and aggravated sexual assault convictions, and a concurrent six-month term was imposed on the simple assault conviction.
Included with the imposition of appropriate fines and penalties were three $800 penalties to be deposited in the Sexual Assault Nurse Examiner (SANE) Program Fund, N.J.S.A. 2C:43-3.6. We affirm the convictions, but remand for resentencing in compliance with State v. Natale (Natale II), 184 N.J. 458 (2005).
The following facts were developed at trial. At approximately 9:15 p.m., while K.M. and C.P. were parked in an area in Bridgeton City Park overlooking a lake, they observed a car containing four men pull up with its headlights shining on K.M.'s car. Claiming to be a policeman, defendant was the first to exit the unknown vehicle. K.M. described defendant as "a dark complected male [with] corn rowed style hair," approximately 5'6" to 5'9", and wearing a red or orange tee shirt. According to C.P., he remembered that defendant's shirt was yellow. C.P. also testified, when asked if he had seen defendant before the evening in question, that he had seen him before but did not know him personally. Defendant opened K.M.'s door, grabbed her cell phone, and attempted to pull K.M. out of the car as C.P. held onto her, trying to pull her back into the car. Defendant then handed the cell phone to co-defendant Nichols, who was wearing an Old Navy tee shirt. Defendant punched C.P. in the head, above the eyebrow, splitting it open. The others attempted to pull C.P. out of the car. They took his cigarettes, a lighter, a wallet, and thirty-five dollars in cash.
Meanwhile, defendant pulled K.M. out of the car, brought her to the back of the car where he "pressed [her] up against [the] side of the car," patted her down, and ordered her to spread her legs. When K.M. resisted, defendant punched her repeatedly in her ribs. Defendant took K.M.'s keys and wallet containing eighty-five dollars. Defendant lifted K.M.'s shirt, pulled off her bra, unbuttoned her pants and dropped them to her ankles, and inserted his finger in her vagina. One of the other men then came up to her, pulled her shirt over her head so that she could not see, after which she felt fingers inserted into her at least ten times. After the others left, K.M.'s shirt was taken off, and defendant inserted his fingers into her rectum. When she screamed for help, defendant slammed her head into the trunk. She cried, "God, help me," and heard one of the men say, "God couldn't help [you]." The others yelled, "Shut up," and, "We'll kill you."
While at the rear of the car, defendant held K.M.'s head down while he and one of the other three men groped her. She was left alone for a brief time and tried to put her pants back on, however, defendant came back and removed her pants and underpants and threw them somewhere. She was then thrown to the ground and raped by three of the men. As the men took turns forcing intercourse with her, she feigned unconsciousness in the hopes they would stop. However, the men, including defendant and Nichols, responded by slapping and punching her in the face. She pretended to wake up, after which she was pulled away from the car and forced to perform oral sex on two of the men, one being defendant. K.M. did not know whether the men ejaculated during the intercourse.
Meanwhile, C.P. was forced to remain in the car and to watch, from about ten feet away, the sexual acts being performed on K.M. He was hit from time to time by the men, including defendant, as he was forced to watch them having their way with K.M. At one point, he was struck on the hands with a baseball bat by co-defendant Hinson after being ordered to place his hands on the dashboard. C.P. recognized Hinson from high school. While being forced to watch, C.P. saw defendant forcing K.M. to perform oral sex. He also believed that defendant had the other men flip K.M. over, so defendant could have sex with her.
K.M. was taken to the woods about twenty-five feet away from C.P., out of his view, where she was forced by one of the other men to perform oral sex. She was then punched across the cheek by another of the men and she pretended to pass out.
The men returned from the woods, ordered C.P. out of the car, covered his face with "a doo-rag [or] a wave cap" and proceeded to hit C.P. with a "barrage of attacks to the face" while he stood against the car. C.P. fell to the ground after being hit by Hinson with the baseball bat across the back of his knees. He then received what he described as "the beating of [his] life." He was hit repeatedly with the baseball bat, stomped on, jumped on, kicked, and punched by all the men. One of the men then said they had been there too long and they got back in their car. Before they left, one of the men went back and hit C.P., and told him that if he did not move he would be run over.
The men left in the car approximately thirty to forty-five minutes after they had first arrived. K.M. came out from the woods wearing just a T-shirt. She got back in her car, retrieved a spare set of keys she kept in the glove box, and drove herself and C.P. to the hospital.
C.P. had bruises, cuts, scrapes, a split eyebrow, a boot print on his back, sore ribs, and two black eyes. In all, C.P. believed he was hit in the face "about a hundred [times]." K.M. suffered scrapes all along her back, scars on her hand, a lump on her right hand that has not gone away, and bruises on her knees and chest.
K.M. was transferred to Newcomb Hospital where Janice Waligroski, a Sexual Assault Nurse Examiner, performed an examination. She collected evidence, including dried secretions from K.M.'s breasts, nipples, and the outside of her mouth. Waligroski also collected head hair combings, oral specimens, swabs from underneath K.M.'s fingernails, pubic hair combings, an external genital specimen, vaginal secretions, cervical specimens, anal specimens, and a buccal control swab to obtain K.M.'s DNA. Waligroski determined "that there had been some rather aggressive [sexual] interaction," but could not determine the number of individuals involved.
Hinson was arrested at 11:20 p.m. the evening of the attack and given his Miranda*fn1 warnings. After Hinson inculpated defendant, the police went to defendant's home and arrested him. Defendant was given his Miranda rights in the police vehicle while being taken to headquarters. At headquarters, he was presented with and signed a Miranda rights card. Initially, defendant was reluctant to discuss the incident. However, after being informed that Hinson had implicated him, defendant told Detective Richard Zanni that he and the other men "were looking to screw up a prom in the projects and then they decided to go out and rob a Mexican." He then told the police that the men ended up at the park and they first came into contact with an individual that they tried to rob but that person escaped. He explained that they drove a bit further when they came in contact with the victims.
Defendant then consented to provide a statement on tape. He was again advised of his Miranda rights. In his taped statement, defendant related that the four men were riding around when Milledge got into a confrontation with someone he suspected of attacking his brother. The men drove off before the confrontation became violent but planned to return. Milledge "wanted to take his aggression out by knocking out some Mexi's," which defendant assumed to mean "beating them up and robbing them." Defendant was in favor of that idea because he had financial difficulties and could not get a job. According to Milledge, the first place the men went to rob Mexicans was too risky due to police presence, so Hinson told the men that he knew a good spot to rob Mexicans. The men then encountered an individual, who jumped out of his car with no shirt on, but was able to start his car and pull away before the men could rob him. About a minute later, the men came across K.M. and C.P., and defendant stated that he and Milledge went up to the driver's side of K.M.'s car and Nichols shouted that they were the police.
Defendant stated that they grabbed the keys, Milledge took K.M.'s cell phone, and Nichols hit C.P. When C.P. tried to go after Nichols, defendant, then Hinson, hit C.P. While Hinson stood at the passenger's door with a baseball bat, K.M. was taken to the back of the car where she was robbed. Defendant believed the men took $70 from K.M., $20 of which he received. Milledge struck K.M. and Milledge and Nichols disrobed her. Defendant stated that Milledge, Hinson, and Nichols forced K.M. to have oral sex with them while defendant searched through the car. Defendant said that Nichols was standing over K.M., holding a bat, as she was forced to perform oral sex. When C.P. got out of the car, Nichols and Hinson began hitting him in the knees with two different baseball bats. C.P. also swung at defendant, and defendant kicked C.P. Although he thought that Nichols had intercourse with K.M., defendant stated that he did not actually see it. Defendant maintained that he did not have intercourse with K.M., and that the whole incident occurred in no more than twenty minutes.
At trial, defendant denied being involved in the attack.
At the time of his arrest, he was wearing a blue jersey with a red t-shirt under the jersey. According to defendant, Hinson came to his house earlier that night to ask how his mother, who was hospitalized, was doing. Later that evening, Hinson returned at approximately "10 o'clock [or] 10:30 ish" with Milledge and Nichols, acting "fidgety." Hinson told defendant, "[w]e just wowed out on this couple," meaning they beat them up. The three wanted to lay low at defendant's house but defendant told them they had to leave.
A blue football jersey, with the number twenty, with "B. Sanders" written on the back, as well as a red sleeveless t-shirt with "Sean John" written on it was collected from defendant. A baseball bat was found in the trunk of Hinson's car.
At trial, the parties stipulated the following:
[N]o DNA of [defendant] was detected in the specimens from the sexual assault evidence collection kit of [K.M.]
Nineteen fingerprint[s] or palm prints were lifted from the exterior of [K.M.'s] car. Fourteen of those had sufficient characteristics for identification purposes. None of them matched the fingerprints or palm prints of [defendant] but did match co-defendants . . . ...