March 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM F. DYKEMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-05-435.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Collester and Graves.
In a seventeen-count indictment, defendant William F. Dykeman was charged with committing various offenses against four separate women. A jury convicted defendant of the following offenses: three counts of second-degree sexual assault by committing an act of sexual penetration using physical force or coercion, in violation of N.J.S.A. 2C:14- 2(c)(1) (counts one, eight, and fifteen); three counts of third- degree criminal restraint, in violation of N.J.S.A. 2C:13-2(a) (counts two, five, and twelve); two counts of third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(b) (counts four and nine); and two counts of fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d) (counts eleven and seventeen). Thus, defendant was found guilty of committing ten offenses, and he was found not guilty on the remaining counts of the indictment.
Prior to sentencing, defendant was evaluated at the Adult Diagnostic and Treatment Center, and it was determined that he did not qualify as a repetitive and compulsive sex offender under N.J.S.A. 2C:47-3. At sentencing on July 15, 2005, the court imposed a nine-year prison term, with an eighty-five percent period of parole ineligibility on counts one, eight, and fifteen to be served consecutively to each other; on count two, defendant was sentenced to a consecutive four-year term, and concurrent terms were imposed on the remaining counts.
Accordingly, defendant received an aggregate sentence of thirty- one years in prison, with twenty-seven of those years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate penalties and assessments, and Megan's Law conditions, were also imposed.
On appeal, defendant presents the following arguments through counsel:
THE MOTION COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SEVER COUNTS OF THE INDICTMENT AND THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL.
SINCE THE ISSUE OF DEFENDANT'S IDENTITY WAS NOT IN GENUINE DISPUTE, COUNTS ALLEGING CRIMES ON JANUARY 31, 2001, JULY 11, 2001, JULY 18, 2001 AND IN SEPTEMBER 2001 WERE IMPROPERLY JOINED IN ONE TRIAL.
THE DEFENDANT WAS UNFAIRLY PREJUDICED BY JOINDER.
EXPERT DNA SCIENTIST MADDOX'S REFERENCE TO F.W. AND R.E. AS BEING "VICTIMS" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ARGUED IN SUMMATION THAT THE DEFENDANT HAD TAILORED HIS TRIAL TESTIMONY (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY BY INSTRUCTING JURORS TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
THE AGGREGATE CUSTODIAL SENTENCE OF 31 YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.
IMPOSITION OF BASE CUSTODIAL SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCES WERE MANIFESTLY EXCESSIVE.
IMPOSITION OF BASE SENTENCES IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE TERMS VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.
THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE, TWO, EIGHT, AND FIFTEEN CONSECUTIVE TO EACH OTHER.
Defendant has also raised a number of arguments in his pro se supplemental brief. After reviewing defendant's contentions regarding his convictions in light of the record and the applicable law, we are satisfied that all of his arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's convictions, but remand for resentencing.
Defendant's convictions stem from a series of sexual assaults that took place in the industrial section of Elizabeth between September 2001 and July 2002. During that time, D.T., R.E., and F.W. claimed they were sexually assaulted by a white male with short hair who drove a white, four-door SUV with out- of-state license plates. Another woman, D.V., claimed that she was held against her will and physically assaulted by a white male driving a white SUV with an Oklahoma license plate.
After defendant was arrested, he admitted he had consensual sex with F.W., but he denied any contact with any of the other alleged victims. In addition, defendant claimed that improper out-of-court photographic identification procedures led to his arrest. Following a Wade*fn1 hearing, the court ruled that the out- of-court identification procedures were not impermissibly suggestive and, therefore, the identifications were admissible.
Defendant's motion to sever the counts of the indictment so that there would be four separate trials, one for each of the alleged victims, was also denied. In denying defendant's severance motion, the court recognized that N.J.R.E. 404(b) precludes admission of other crimes or bad acts when the evidence is offered solely to establish a person's propensity or predisposition toward criminal conduct. In addition, the court recognized the need to evaluate the admissibility of the evidence in light of the four factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992). To be admissible, evidence of other crimes must meet four requirements: (1) the evidence of the other crimes must be relevant to a material issue that is genuinely disputed; (2) it must be similar in kind and reasonably close in time to the offenses charged; (3) the evidence of the other crimes must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice. Ibid.
The court's reasons for denying defendant's severance motion included the following:
Consideration of the motion to sever requires a review of the facts of the case. Defendant was arrested on July 25th, 2002 at approximately 4 a.m. driving a white four-door 1999 Ford Expedition with an Oklahoma license plate. The arrest was made in Elizabeth about four blocks from the location where the assaults of the alleged victims were said to have occurred. The allegations in this case are that over a 10-month period, September 1st, 2001 to July of 2002, the defendant sexually assaulted three victims and attempted to sexually assault one. In each case the defendant used a vehicle. Three of the victims described it as a white Expedition or Explorer, and two of the victims noted an out-of-state license plate. The assailant drove the victims to the same industrial area in Elizabeth near Dowd Avenue and York Street, where the perpetrator assaulted or attempted to assault the victims by anal penetration. All victims described the attacker as being in his mid-30s with short . . . hair. There are some variations in the statements of the victims as to the height and weight of the perpetrator.
. . . [T]he second and third prongs of the [Cofield] test are satisfied. Based upon the sworn statements of the alleged victims, which [t]he [c]court finds to be clear and convincing evidence . . . the four incidents are close in time to each other, covering a 10-month period, and are sufficiently similar in significant detail.
As to the first [Cofield] test, relevant to a material issue, [there is] only one such issue and that is identification. The defendant denies that he is the person who committed these offenses and asserts that the identification of him by the victim is erroneous or the product of impermissible police conduct. To allow evidence of one incident to be admissible during the trial of another on the issue of identity, the criminal activity with which the defendant is identified must be nearly identical as to earmark the crime as defendant's handiwork. See [State v. Fortin, 162 N.J. 596 (2000)]. The conduct in question must be unusual and distinctive. There must be proof of sufficient facts in the crimes to establish an unusual pattern. Such facts exist in this case. As outlined above, the crimes alleged to have been committed in the case bear a striking relationship to each other. The abduction of a single woman, the use of a white SUV-type vehicle to transport the victim to the same desolate location late at night and forcibly engage in the same type of sexual assault, marks these incidents as signature crimes within the case law, satisfying the first [Cofield] test.
The material issue of identification exists in this case, and evidence of the pattern of the crimes is relevant to the trial of this issue. The State urges defendant's motive and intent, or lack of consent of the victim, are issues which would likewise support the admissibility of other crimes' evidence. The [c]court disagrees. This is not a case where the State must prove self-gratification or humiliation of the victim, where other wrongs' evidence is needed to prove the state of mind. It is also not a case in which the defendant asserts consent. Here the defendant denies he was the person who committed these acts, not that he did them with the alleged victims' consent.
The final [Cofield] test is the balance of probative value versus prejudice to the defendant. . . . Where, as here, the defendant says in effect I wasn't there, I didn't do it, the facts in the various cases shown in the identical manner in which the crimes were carried out is essential to the proofs in the case. Accordingly, the defendant's motion to sever the case into separate trials is denied.
Identity remained a contested issue until defendant took the witness stand and testified that he encountered each of the alleged victims while he was "looking for a prostitute," and he admitted having consensual sex with all four women. During cross-examination, defendant also testified that some of the State's evidence may have been "planted":
Q: You testified to essentially what you consider four acts of consensual sex, correct?
Q: And in each act the women went to the police. In some cases they went running into the street looking for help, correct? Do you frequently --
A: I don't believe that.
Q: Do you frequently have acts of consensual sex where your partner goes running into the street?
A: That's not what happened with [R.E.]
Q: Regarding [R.E.] did you rub your penis against her buttocks? Yes or no?
A: I can't accurately answer it yes or no.
Q: Do you dispute that your DNA was recovered on her underwear?
A: No, I don't dispute it at all. I do dispute how it got there. I have a suspicion that it was planted. We just got it two years later. We just got it. Why does it come two years later? It is in April. Two years. If they wanted me so bad, they would have had it the first week.
Q: Who are all these people that are conspiring to get you, Mr. Dykeman, who planted this evidence that you know of?
A: I believe that there's -- I think they're all good guys. I am not saying they are all --
Q: Who planted your DNA on someone's underwear?
A: I think there is a group of guys here in an organization known as The Family that control prostitution in Elizabeth. That's what my research has revealed.
In his closing argument, defendant's attorney told the jurors "this case actually comes down to four cases and the four cases are very simple. . . . [W]hen you deliberate [you must decide] as to each particular case did the defendant rape the victim or was this a consensual act over which there were arguments in other regards?"
With respect to defendant's first point, we are satisfied that defendant's severance motion was correctly decided, and we affirm substantially for the reasons stated by the motion court.
Moreover, in our view, the trial court did not abuse its discretion in denying defendant's motion for a mistrial at the close of evidence. As the trial court explained:
Identity was a major issue in this case as far as I can tell based on the representations of counsel in opening and throughout the trial, at side bars until yesterday morning. The defendant yesterday morning apparently changed his strategy and decided to take the position that he knew all these people, he has engaged in sexual penetration with all of these victims and that the only issue was consent. The case was properly joined and the defendant should not be able to get a mistrial by his own actions or change in tactics.
"A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973). In this case, our review of the record does not reveal any such failure of justice.
In his second point, defendant contends he was deprived of a fair trial because the DNA expert referred to F.W. and R.E. as "victims." We cannot agree. The DNA expert, Dr. Maddox, testified before defendant and, prior to defendant's testimony, the primary issue was the identity of the assailant. Thus, when Dr. Maddox testified: (1) it was not seriously disputed that the alleged victims had been assaulted; (2) there was no objection to the testimony; and (3) even defense counsel made reference to "victims." Under these circumstances, we find no error, much less error "clearly capable of producing an unjust result." R. 2:10-2. Similarly, with respect to defendant's fourth argument, there was no objection to the jury charge and we find no reversible error. R. 1:7-2; R. 2:10-2.
In his third point, defendant contends that the prosecutor prejudiced his right to a fair trial by arguing in summation that defendant had tailored his trial testimony. During cross- examination, the prosecutor established that defendant had an opportunity to review "all the discovery," and to hear "every witness testify from start to finish." Similarly, the prosecutor referred to defendant's presence in the courtroom during his summation: "The defendant sat here and watched the whole case go in. He watched every witness testify. He had their statements in front of him. He had the statements, as he testified, for over a year. He had every chance to watch them testify and to prepare."
Because there was no objection to the prosecutor's comments regarding defendant's presence in the courtroom, we must determine whether the prosecutor's remarks constitute plain error under Rule 2:10-2. The prosecutor's questions during cross-examination emphasized that there was scientific evidence to support the testimonial evidence of the alleged victims, and the prosecutor's closing remarks could have been prompted by defendant's claim that the DNA evidence may have been "planted."
In any event, the evidence of defendant's guilt was overwhelming, and we are convinced that the prosecutor's "fleeting references to defendant's presence in the courtroom" could not have led the jury to a result it otherwise would not have reached. State v. Feal, 194 N.J. 293, 313 (2008).
Defendant also challenges his sentences. After reviewing the guidelines contained in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), we reject defendant's argument that the imposition of consecutive sentences was an abuse of discretion.
See State v. Molina, 168 N.J. 436, 442 (2001) (noting that crimes involving multiple victims are especially suitable for the imposition of consecutive sentences).
While we find no merit in defendant's claim that his "sentences were manifestly excessive," we agree that the matter must be remanded for resentencing because the sentences imposed on defendant's second-degree sexual assault convictions exceeded the then-existing presumptive terms. At the new sentencing hearing, "the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." State v. Natale, 184 N.J. 458, 495-96 (2005). See also State v. Thomas, 188 N.J. 137, 153 (2006) ("For defendants sentenced prior to Natale, we have no confidence that any who were sentenced above the presumptive sentence on the basis of aggravating factors (3), or (6), or (9) were sentenced exclusively on the mere judicial fact-finding of the existence of a prior conviction.").
Defendant's convictions are affirmed. The matter is remanded to the trial court for resentencing.