On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2234.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Sabatino and Fasciale.
After his pretrial motion for severance was denied, defendant Michael Anthony Askins was tried before a single jury principally on charges of sexual assault and other various offenses committed against six women on six separate dates in Asbury Park. The jury found defendant guilty of the sexual assaults and most of the other charged offenses as to five of the victims, and not guilty as to the sixth alleged victim. The jury also found defendant guilty of harassment as to the two law enforcement officers who arrested him.
We reverse the convictions as to the sexual assault victims because the trial court erred in denying severance based, in part, upon its finding that the separate assaults were admissible at a single trial to bolster each victim's credibility. The trial court also erred in repeatedly instructing the jury in the final charge that evidence of each assault could be considered as proof of a "plan" under N.J.R.E. 404(b). Because the cumulative impact of these prejudicial errors -- an impact that was compounded by aspects of the prosecutor's summation -- had the clear capacity to deprive defendant of a fair trial and was not merely harmless, the convictions on all of the counts relating to the sexual assault victims must be set aside.
We therefore remand for additional proceedings for the trial court to (1) reconsider defendant's severance motion without taking into account whether a combined trial would bolster the victims' credibility; and (2) regardless of the extent to which separate new trials are ordered, fashion appropriate Rule 404(b) jury instructions that omit any reference to the "plan" exception under that Rule. We further advise the trial court, when these matters are tried again, to make appropriate redactions to defendant's statement to the police, consistent with its renewed rulings concerning severance and the uses of any Rule 404(b) evidence.
We affirm, however, the trial court's denial of defendant's motion for the disclosure of mental health and medical records of three of the sexual assault victims. In addition, we affirm the separate convictions for harassment as to the law enforcement officers, and the corresponding sentences imposed for those discrete offenses.
The twenty-seven count indictment charged defendant with sexual assaults and other various crimes committed against six alleged victims, identified as "E.J.," "S.R.," "C.P.," "L.C.," "T.P-P.," and "P.S." All of the sexual assault victims resided in or near Asbury Park and had a history of drug addiction. All but one of them had admittedly been involved in prostitution. The indictment also charged defendant with making terroristic threats against the two law enforcement officers who had arrested him.
In particular, the indictment charged defendant with the following discrete offenses, which we identify in chronological order by applicable date or time frame:
o In July or August 2003, against E.J.: sexual assault, N.J.S.A. 2C:14-2c(1); and terroristic threats, N.J.S.A. 2C:12-3a, b (counts twenty-four and twenty-five);
o On November 15, 2006, against S.R.: kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a(3)(4); terroristic threats, N.J.S.A. 2C:12-3a, b (counts four, five, and six); as well as unlawful possession of a weapon (a stick), N.J.S.A. 2C:39-5d (count seven); and possession of a weapon/stick for an unlawful purpose, N.J.S.A. 2C:39-4d (count eight);
o On November 17, 2006, against C.P.: kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a(3)(4); terroristic threats, N.J.S.A. 2C:12-3a, b (counts nine, ten, and eleven); as well as unlawful possession of a weapon (a box cutter), N.J.S.A. 2C:39-5d (count twelve); and possession of a weapon/box cutter for an unlawful purpose, N.J.S.A. 2C:39-4d (count thirteen);
o On November 25, 2006, against L.C.: kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a(3)(4); terroristic threats, N.J.S.A. 2C:12-3a, b (counts fourteen, fifteen, and sixteen); as well as unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (count seventeen); and possession of a weapon/knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count eighteen);
o On December 20, 2006, against T.P-P.: kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a(3)(4); and terroristic threats, N.J.S.A. 2C:12-3a, b (counts nineteen, twenty, and twenty-one); as well as unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5d (count twenty-two); and possession of a weapon/handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count twenty-three);
o On December 29, 2006, against P.S.: kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, N.J.S.A. 2C:14-2a(3)(6); and terroristic threats, N.J.S.A. 2C:12-3a, b (counts one, two, and three);
o On March 19, 2007, against both P.O. and C.B.: terroristic threats, N.J.S.A. 2C:12-3a (counts twenty-six and twenty-seven).
We now summarize the State's evidence as to each of the alleged six sexual assault victims, doing so in the order in which the offenses were respectively investigated by the police. Our narrative description of the sexual attacks is necessarily explicit, inasmuch as the details bear upon the contentions that we must focus on in this appeal, i.e., the alleged commonality of the offenses and the critical issues of severance and Rule 404(b) admissibility. L.C.
At the time of her alleged assault in 2006, L.C. was in her late forties. She was living in Asbury Park and working as a prostitute to support her cocaine addiction. She was typically paid in cash, and rarely in drugs. She had numerous prior convictions for drug possession and violating probation, as well as a conviction for attempted theft by deception.
On the evening of November 24, 2006, L.C. worked as a prostitute. She then went to a friend's house and used drugs. The following morning, November 25, at approximately 6:00 or 7:00 a.m., L.C. was walking to the store to buy a pack of cigarettes, when she ran into a man she recognized as "Creator" on Fourth Avenue. She knew members of the man's family, but did not know Creator himself. At trial, L.C. identified defendant as Creator.
According to L.C., the man told her that he had something for her and that he wanted to "take care of" her the way she had "taken care of" him in the past. He invited her to come "take a hit" with him. L.C. responded that she did not have the time, as she was waiting for someone to bring her drugs. Because the man was insistent, L.C. followed him to the basement of a building at the corner of Fifth and Grand Avenue.
Once in that basement, the assailant grabbed L.C. by the neck from
behind and began choking her. In her peripheral vision, L.C. saw what
appeared to be a knife, and she also felt it on her neck.*fn1
L.C. tried to get the man off of her and told him to stop
"playing," to which he reportedly responded, "I'm not playing, bitch."
The attacker then dragged L.C. to the far corner of the room, telling her that she was going to have sex with him. L.C. told her assailant that she had a condom, that she wanted to go over near the washer and dryer and door, and that she would not fight him. The assailant then took her to that area of the basement and he forced her to perform oral sex. He then put the condom on, told her to turn around, and bent her over the washing machine. He initially attempted to penetrate her anally, but when that was not accomplished, he then penetrated her vaginally. The condom broke almost immediately, and he threw it on the floor.
The attacker walked up the steps by the door, holding the knife. He told L.C. that he could not let her go because he expected she would go to the police. L.C. responded that she would not report him and that he could come with her to get cocaine from her friend. After a while, the attacker put down the knife, and he and L.C. left the basement together.
L.C. told her attacker to walk with her to buy cigarettes. A few blocks later, L.C. saw three men that she knew. L.C. ran up to them and started crying, asking them to get the attacker away from her. One of the men told the attacker to go away, and the attacker complied.
On the advice of her friends, L.C. did not go to the police immediately. However, she went two days later, on November 27. In her statement to police, she claimed to have been raped on both November 13*fn2 and November 25. The police persuaded L.C. to go with them to the November 25 crime scene. L.C. ultimately took them to the basement of a building on Grand Avenue, where they seized a condom wrapper near the washer and dryer, which
L.C. identified as belonging to her. The police did not find a knife on the premises. L.C. told police that she did not want to speak to a counselor, and she did not want to receive any medical treatment.
L.C. admitted at trial that in early November 2006 she had been arrested on an outstanding warrant and that shortly thereafter she had been hospitalized because she said she was suicidal. Although she had reported a rape during that hospital stay, due to her mental state, no statement was taken, and no rape kit testing was performed.
Months later, in March 2007, L.C. picked defendant's photograph out of a photo array, identifying him to the police as her attacker.
In December 2006, P.S. was in her late thirties and living at a motel in Wall Township. P.S. frequently abused heroin, cocaine, and alcohol. She would visit Asbury Park on a regular basis in order to get high. She had a history of criminal convictions for drug possession.
On the afternoon of December 28, 2006, P.S. drank some shots of gin and then traveled to a friend's apartment in Asbury Park, where she drank alcohol and smoked crack for several hours. At some point, she was told to leave, and her plan was to take the train home to Wall. On the way to the station at about 4:30 a.m., P.S. spoke to a police officer and a man named "I Savior," whom she knew from getting high.
After "I Savior" and the police officer left, and P.S. was alone, a black male whom P.S. later identified as defendant grabbed her by the arm and pulled her to a basement of a building on the corner of Fifth and Grand Avenue. She did not physically resist the man because he told her he had drugs, and she believed she was going to get high with him. Once they were in the basement, the assailant pulled down his pants and handed P.S. a glass vial.
P.S. observed that there was no cocaine, and she asked the man to let her go.*fn3 The attacker refused, commanded that she perform oral sex, and, while she was doing so, punched her in the mouth and abdomen. He then put her in a headlock and began choking her. P.S. tried to get away and plead with her attacker not to hurt her. Undeterred, he pulled off her clothes and penetrated her vaginally and orally. He also attempted to penetrate her anally.
After the assault, the man walked P.S. to the street corner and left. P.S. then went to a nearby rooming house. She told the manager what had happened to her. The manager offered to call the police, but P.S. declined, saying that she planned to go to the police station on her own.
After leaving the rooming house, P.S. walked to the police station and reported the sexual assault. She was then taken to a local hospital, where she was interviewed and examined by a trained sexual assault nurse examiner (a "SANE nurse").
P.S. described to the SANE nurse what had just happened to her. She also told the nurse that she was deaf in both ears, had hepatitis C and asthma, and was taking a drug for heroin withdrawal symptoms. She denied having had consensual sex within the past five days.*fn4
In examining P.S., the SANE nurse observed abrasions on her neck, back, right shoulder, right buttock, and knuckles. She also had dirt on the palms of her hands and an injury to the tip of her tongue. The nurse also discovered abrasions in P.S.'s genital region. She found no internal vaginal injuries, although it is apparently rare to observe such injuries in sexual assault cases. Vaginal swabs taken from P.S. tested positive for defendant's sperm.
Once these two victims, L.C. and P.S., had told the police that a man named Creator had sexually assaulted them in the same location in Asbury Park, the Police Department attempted to determine Creator's identity. Speaking with women on the street, Connie Breech, an Asbury Park police detective, located four additional victims (S.R., C.P., T.P-P., and E.J.).
The victims who provided descriptions of the assailant described him similarly, i.e., as a well-built black man in his thirties or forties, bald or nearly bald, with a large penis. Some of the victims mentioned tattoos, and others did not.*fn5
In November 2006, S.R. was in her late twenties, homeless, addicted to both cocaine and heroin, and living on the streets of Asbury Park. She would prostitute herself for money to buy drugs, or sometimes trade sex for drugs. She had a criminal history that included drug crimes and violations of probation.
On or about November 14, 2006, S.R. was sleeping on the porch of an abandoned building on First or Second Avenue, during daylight hours, when she was awakened by a man that she later identified as defendant. She had smoked crack with him the day before. The man asked her if she wanted to go take a "hit," and she said yes.
The man and S.R. first tried to get onto the beach, but were unable to, so they went to an abandoned building. When they arrived at an upper floor of that building, the man revealed that he did not have any drugs. He told S.R. to get undressed. S.R. refused, and the man started to choke her from behind. He also threatened her with a stick.*fn6
S.R. struggled, but she was unable to get away. Eventually she gave in and did what her attacker demanded, which was vaginal intercourse. S.R. recalled at trial that the attacker had also requested anal sex, but that she had refused.
The assault of S.R. lasted approximately ten minutes. As S.R. was leaving, the attacker asked if she wanted to come with him to find drugs. According to S.R., while the man was attacking her, it was like "a monster came out," but afterwards he acted as though nothing had happened.
S.R. went looking for drugs with her attacker, thinking that she might as well get drugs from him. However, he did not have any drugs or money, and he never provided her with anything.
S.R. did not report the attack until the following day, November 15, 2006, after she had been arrested for trespassing and taken to the hospital because she was suicidal. She identified her attacker to the police as Creator. She spoke to a SANE nurse about the attack, but no rape kit analysis was performed due to her mental instability.
In March 2007, S.R. was shown a photo array. She commented on defendant's photograph, stating that she was "eighty percent sure" he was the one who had attacked her. At trial, she positively identified ...