On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-2004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Baxter and Nugent.
Following a trial by jury, defendant Everett Holloway appeals from his conviction on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count one); another count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count four); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five). At the time of sentencing, the judge imposed extended-term sentences on both counts one and two, sentencing defendant to concurrent terms of life imprisonment on each count, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. Counts three, four and five were merged with count two.
On appeal, defendant raises the following claims:
I. THE ADMISSION OF HEARSAY STATEMENTS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL.
II. THE EXPERT TESTIMONY INTRODUCED BY THE STATE WAS IMPROPER AND, COMBINED WITH THE INSUFFICIENT JURY INSTRUCTIONS ON THE SUBJECT GIVEN BELOW, CAUSED AN UNFAIR TRIAL (plain error).
III. DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED.
IV. THE PROSECUTOR EXCEEDED FAIR COMMENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL (plain error).
V. DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED.
VI. REMAND SHOULD BE ORDERED SO DEFENDANT CAN HAVE AN OPPORTUNITY TO PRESENT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOTED BELOW.
VII. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We reject the claims advanced in Points I through V, and affirm defendant's conviction. We defer consideration of Point VI to defendant's petition for post-conviction relief (PCR). As to Point VII, we conclude the judge erred by imposing two extended-term sentences, and remand for resentencing. In all other respects, we reject the sentencing arguments advanced in Point
On October 3, 2007, E.H. moved into the Atlantic Motel in Seaside Heights, planning to remain there only until she could find a job and move to "a better location[.]" She immediately met defendant, who introduced himself as "Ed" and told her he lived in the adjacent room. Upon learning that E.H. would not be receiving food stamps for another two weeks, and that she had little money to buy food, defendant provided her with food and cigarettes. Because defendant was blind, E.H. agreed to open his mail and read it to him.
After a few days, E.H. decided to avoid defendant because of his tendency to turn the conversation toward sexual topics, which E.H. believed was "kind of weird[.]" Despite E.H.'s attempts to avoid him, defendant pursued her, often waiting for her when she returned from school and offering her cigarettes, even though she told him she would buy her own.
On the night of October 11, 2007, E.H. drove to the home of her best friend, Nancy Nunn, whom she had known since the two were five years old. E.H. testified that she went to visit Nunn that night because she was "upset" by defendant's conduct. E.H. told Nunn that "it is just very creepy. I was afraid of him."
The next morning, October 12, 2007, defendant knocked on E.H.'s door, stating he had brought a replacement part for her refrigerator, which was in need of repair. She accepted the part and asked defendant to leave, but before leaving, he asked her for a hug. E.H. complied, giving him "half a hug," believing it would "get him out of [her] place[.]"
With E.H. now in his grasp, defendant swung her around, and forced his arm around her neck, lifting her off the ground, all the while choking her. Unable to breathe, E.H. tried to kick defendant, and soon lost consciousness. She awoke, face down on the carpet, with defendant behind her performing vaginal intercourse. He ordered her to remove her clothes, and after she did so, he penetrated her again.
A little while later, even though defendant's leg was wrapped around hers, E.H. broke free and "ran out of th[e] room stark naked screaming from the top of [her] lungs." A neighbor, Susan Dougherty, was watching television when she heard E.H. screaming, "Dear God, please help me." Looking out her window, Dougherty was able to see E.H. running naked down the street while trying to cover herself. Dougherty also observed blood running down the front of E.H.'s leg. Dougherty immediately called the police, and ran outside, where she wrapped E.H. in a towel that she had grabbed as she rushed outside to assist E.H. As soon as Dougherty reached her, E.H. blurted out that she had been "raped" by "Ed[.]"
Dougherty described E.H.'s appearance and emotional reaction in the following terms:
I could really say that if fear or trauma were a verb, I was seeing it in action. I knew this woman was hurt or violated in some way. I knew that -- she was trembling to such a ...