Opinion
DOCKET NO. A-2594-09T4
07-05-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL ANTHONY ASKINS, Defendant-Appellant.
Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief). Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2234.
Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief). PER CURIAM
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.
I.
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. 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."
Despite L.C.'s recollection of a knife, we note that the jury found defendant not guilty of the weapons offenses charged with respect to the attack on her.
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 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.
The attack that allegedly took place on November 13 was not charged in defendant's indictment.
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.
P.S.
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. 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.
P.S. denied in her testimony that there was ever any agreement to exchange sex for drugs, or that she consented to sex.
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.
However, later that day, P.S. told detectives that, in the past twenty-four hours, she had engaged in consensual sex with a friend using a condom. Also, in speaking with police, her description of the assault differed somewhat from her trial testimony, but she was able to identify her attacker as "Creator."
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.
The Police Investigation
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.
At trial, defendant removed his shirt, revealing tattoos on his upper chest, a tattoo on his upper arm, and one on the right side of his neck.
S.R.
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.
Defendant was found not guilty of the weapons offenses charged relating to his attack on S.R.
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 defendant as her attacker, without any stated equivocation.
C.P.
In November 2006, C.P. was in her late forties. She was living on Eighth Avenue in Asbury Park and working as a prostitute to support her drug habit.
On November 17, 2006, C.P. spent several hours prostituting herself and purchasing drugs with the money she received. At approximately 9:30 or 10:00 p.m., she was walking home on Grand Avenue. As she neared the intersection with Fifth Avenue, someone yelled her name from across the street. She asked who it was, and the man responded that he had a message from her "boyfriend [] in prison."
C.P. did not recognize the man and was somewhat leery of him, but she nevertheless walked across the street. When C.P. got close to him, he pulled her by the hair, across a parking lot and down into the basement of a building on the corner of Fifth and Grand Avenue. The man had a box cutter in one hand. He told her to go to the far corner of the basement, face the wall, and take her clothes off, or else he would slice her throat.
C.P. did as she was ordered. She then walked to where the attacker was in the basement. While still holding the box cutter to her throat, the man told her to perform oral sex on him, which she did. He also performed oral sex on her. The man next penetrated her vaginally, while still holding the box cutter. She asked him to wear a condom but he refused.
Eventually, the attacker ceased his further attempts to have sex and told C.P. to get dressed. He offered to walk her home. As they were walking, he introduced himself to her as "Creator." C.P. went home and did not report the incident to the police, apparently because there were active warrants for her arrest.
In March 2007, C.P. spoke to Detective Breech about the assault. From a photo array, she identified defendant as her attacker.
C.P.'s description of the assault at trial differed, with respect to certain details, from the statement she gave to police.
T.P-P.
In December 2006, T.P-P. was about forty years old and living in a rooming house in Asbury Park. She was a drug addict, who would either steal or prostitute herself for the money she needed to buy drugs. She also routinely exchanged drugs for sex. T.P-P. has a long criminal history that included convictions for drug offenses, tampering with evidence, taking a means of conveyance, robbery, possession of stolen property, smuggling contraband into prison, forgery, grand theft, and the violation of probation.
On December 20, 2006, between 3:00 a.m. and 4:00 a.m., T.P-P. was on the streets of Asbury Park, trying to get some crack. As T.P-P. was walking home, she encountered a man on Fifth Avenue. The man approached her and asked if she wanted to smoke some crack. T.P-P. said yes, and the two of them started walking together. The man asked T.P-P. to crawl through a basement window into an empty building on the corner of Fifth and Grand. She refused, so they continued heading to the boardwalk.
Walking on the boardwalk, T.P-P. started feeling odd and said she was going to go home. As she turned to leave, the man grabbed her by the throat and took her down to the beach by the water. He told her to get on her knees because he wanted to have anal intercourse.
When T.P-P. was down on her knees, the attacker pulled out a weapon and threatened that he would kill her if she screamed. She did not know what the weapon was, but it was black and it clicked, so she believed it to be a gun.
Defendant was found not guilty of the weapons offenses charged with respect to his attack on T.P-P.
After her attacker finished the sexual assault, T.P-P. got up and got dressed. As she started walking away, the man asked if he could walk her home. T.P-P. walked away on her own and went to try and find some crack. As she was walking, she encountered her attacker again on the street. He put a piece of crack in her hand, said "[h]ere you go," and walked away.
T.P-P. did not report the assault until several months later. T.P-P. acknowledged at trial that she did not tell the police that she had used drugs after the alleged assault because it made her "look [] bad."
In March 2007, T.P-P. viewed a photo array and identified defendant as her attacker. She also positively identified him at trial.
E.J.
Unlike the incidents with the other five sexual assault victims that occurred in 2006, the incident with E.J. was said to have occurred in 2003. In 2003, E.J. was in her early thirties, homeless, and living in Asbury Park. She was a drug addict and abused crack cocaine. She prostituted herself to obtain money to support her addiction.
According to E.J., she was sexually assaulted some time in the summer of 2003. E.J. could not recall the exact date but she later told the police that she believed the assault occurred in July or August 2003. On the date in question, she woke up from sleeping in an abandoned building and saw a man she knew as Creator in the room with her. She subsequently identified that man as defendant.
The man asked E.J. if he could perform oral sex on her, and she said no. According to E.J., when he repeated his request, she raised her voice and told him to leave her alone. The man then went behind E.J. and put her in a headlock. He placed a piece of broken mirror to her neck, telling her to get on her knees and not make a sound or else he would kill her. He then penetrated her anally. When the attack was over, E.J. told the man that she was going to get some money. She then left him and did not return.
E.J. did not report this 2003 assault until February 2007, when she was interviewed by Detective Breech. At that time, she did not mention the attacker having used a weapon because she did not think of the mirror as a "weapon." From a photo array, E.J. identified defendant as her attacker.
At trial, defendant presented exculpatory testimony establishing that he had been incarcerated in Monmouth County Jail from June 19, 2003 to December 10, 2003.
Defendant was found not guilty of all of the crimes charged concerning E.J.
Defendant's Arrest
After all six sexual assault victims had identified defendant as their attacker, the police located him in a Salvation Army drug rehabilitation program in Delaware. On March 13, 2007, Detective Breech and Detective Patrick O'Connell from the Monmouth County Prosecutor's Office traveled to Delaware to interview defendant and arrest him.
Defendant gave a statement to the officers, in which he admitted that his nickname was "Cree," but denied using the nickname Creator. In the initial portion of his police statement, defendant admitted using drugs and trading drugs for sex with various prostitutes. However, he denied ever becoming violent with them or sexually assaulting them.
After a break followed by a few more questions, defendant stated to the officers, "I'm guilty[,] man! Let's just get this over with!" Detective O'Connell asked "Guilty of what?" to which defendant responded, "I'm guilty of everything . . . everything . . . I just wanna get this thing over with." O'Connell asked "Why do you say guilty of everything?" to which defendant responded "[g]uilty of everything, I'm just tired. I just wanna lay down and go to sleep[,] man I'm tired."
After further questioning, defendant admitted having had sex with several women in a basement on Grand Avenue, in abandoned houses, and on a beach. Defendant continued, however, to deny that the sex was nonconsensual. He would admit only that there may have been some disputes about the amount of drugs he provided to the women in exchange for sex. He acknowledged that he may have gotten rough with the women, but insisted that he never carried weapons.
After the interview, the officers took defendant to a holding room and shackled him to a bench. According to Detective Breech, at that point, defendant became, "[v]ery violent," "belligerent," and "upset." He began yelling and cursing, threatening, "[y]ou don't know who you are f***ing with." Referring to the victims, defendant proclaimed, "Those are some crackhead bitches. They won't come to court."
Three days later, O'Connell and Breech drove defendant from Delaware to New Jersey. During the ride, defendant was again extremely angry and threatening. He repeatedly called the detectives "white devils," and he threatened to kill or otherwise harm them. Defendant again denigrated the victims, saying, they were "nothing but a bunch of crackhead bitches" and "they're all lying."
The indictment was issued a few months later.
Pretrial and Trial Events
Prior to trial, defendant moved to sever the charges concerning the six alleged sexual assault victims into separate trials. For reasons that we will explore in more detail in Point II, infra, the judge who was then presiding over the casedenied the severance motion. In essence, the motion judge found that defendant would not be prejudiced by a joint trial because evidence of the crimes committed against all six women would be admissible, in his view, under N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992), even if the cases were tried separately. On that same day, the motion judge also denied defendant's request to examine confidential psychological, hospital, and custodial records of P.S., S.R., and L.C.
A different judge later presided over the trial.
The ensuing trial took place over eight days in May and June 2009. Each of the six sexual assault victims testified. The State further presented various law enforcement witnesses who had been involved in the investigation, as well as several civilian witnesses. Defendant's statement to the police was also admitted.
Defendant did not testify on his own behalf. In general, the defense's theme was that all five of the alleged 2006 sexual assault victims had consented to having sexual relations with him, essentially exchanging sex for drugs. As to the sixth victim, E.J., defendant maintained that he could not have sexually assaulted her in July or August 2003 because he was in jail at that time. Defense counsel vigorously challenged the credibility of the victims, particularly given that many of them had criminal records and that most of them had delayed in reporting the alleged sexual assaults.
Consistent with the court's pretrial ruling denying severance, the State was allowed at trial to present evidence of defendant's alleged prior "bad acts," not only as substantive proof of each of the charged offenses, but also as Rule 404(b) evidence that the jury could consider as proof relating to the other victims.
During the final jury charge, the trial judge issued an instruction explaining to the jurors various ways in which they could consider these proofs under Rule 404(b). As we will discuss in greater detail in Part II, infra, the judge specifically advised the jurors that they could consider such other-crimes evidence as proof of (1) the victims' lack of consent to engage in sexual relations; (2) defendant's criminal "motive"; and (3) defendant's "plan." The prosecutor specifically referred to each of these various Rule 404(b) uses in her summation.
Verdict and Sentencing
At the conclusion of deliberations, the jury found defendant guilty on most of the counts of the indictment, except that it acquitted him on counts seven, seventeen, and twenty-two (unlawful possession of a weapon); counts eight, eighteen, and twenty-three (possession of a weapon for an unlawful purpose); and counts twenty-four and twenty-five (sexual assault of E.J. and terroristic threats against her). As to counts twenty-six and twenty-seven charging terroristic threats against the police officers, the jury convicted defendant of the lesser-included offense of harassment.
In August 2009, the trial court entered judgment in accordance with the verdict. At the same time, it sentenced defendant to five consecutive twenty-five-year terms for the various kidnapping convictions (counts one, four, nine, fourteen, and nineteen), subject to parole disqualification under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court further sentenced defendant to a concurrent term of eighteen months for unlawful possession of a weapon/box cutter (count twelve), and a concurrent term of five years for possession of a weapon/box cutter for an unlawful purpose (count thirteen). The court merged the remaining convictions for aggravated sexual assault and terroristic threats (counts two, three, five, six, ten, eleven, fifteen, sixteen, twenty, and twenty-one) into the associated kidnapping convictions. The court also imposed consecutive thirty-day jail terms for the harassment of the two detectives (counts twenty-six and twenty-seven). Lastly, the court rejected the State's motion for an extended term sentence.
On appeal, defendant raises the following points for our consideration:
POINT IWe now consider these arguments, combining the first three in our analysis because they are substantially inter-related.
THE MOTION JUDGE ABUSED [HIS] DISCRETION IN DENYING ASKINS'S SEVERANCE MOTION, BECAUSE HE EMPLOYED AN INCORRECT N.J.R.E. 404(b) ANALYSIS.
POINT II
ASKINS'S [POLICE] STATEMENT SHOULD HAVE BEEN REDACTED TO REMOVE REFERENCES TO HIS PRIOR CRIMES AND INCARCERATIONS, AND DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK SUCH A REDACTION. (Not Raised Below)
POINT III
THE COURT'S INSTRUCTIONS ON OTHER-CRIMES EVIDENCE FAILED TO SPECIFICALLY EXPLAIN THE PROPER USES OF SUCH EVIDENCE IN THE CONTEXT OF THE FACTS OF THE CASE. (Not Raised Below)
POINT IV
THE MOTION JUDGE ERRED IN FAILING TO CONDUCT AN IN CAMERA REVIEW OF THREE COMPLAINANTS'
PSYCHOLOGICAL, HOSPITAL AND CUSTODIAL RECORDS WHERE THERE WAS REASON TO BELIEVE THAT THEY MAY HAVE BEEN MENTALLY ILL WHEN THEY ENCOUNTERED DEFENDANT.
POINT V
THE COURT VIOLATED THE PRINCIPLES OF STATE V. YARBOUGH IN SENTENCING ASKINS TO FIVE CONSECUTIVE 25-YEAR TERMS.
II.
The fundamental issue before us is whether the trial court erred in allowing the State to try all six sexual attacks before a single jury in one proceeding and whether the corresponding proofs of each attack were rightly admitted, with proper jury instructions, under N.J.R.E. 404(b). Because the legal standards for severance and Rule 404(b) are closely intertwined, we discuss them concurrently.
Rule 3:7-6 allows for two or more offenses to be charged together in the same indictment "if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." However, Rule 3:15-2(b) provides that if for any reason "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment [] the court may order an election or separate trials of counts[.]" See also State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Although the text of these provisions is discretionary, the trial court may not abuse its discretion in combining offenses in one trial and denying severance. Ibid.; accord State v. Marrero, 148 N.J. 469, 483-84 (1997).
The key to determining whether joinder is prejudicial to a defendant is whether, if the crimes were tried separately, evidence of the severed offenses would be admissible under N.J.R.E. 404(b) in a trial of the remaining charges. Chenique-Puey, supra, 145 N.J. at 341; State v. Oliver, 133 N.J. 141, 150-51 (1993). "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
N.J.R.E. 404(b) provides, in pertinent part, that:
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[Emphasis added.]
Our courts have customarily applied the four-pronged Cofield test, supra, 127 N.J. at 338, to determine the admissibility of other-crimes evidence under Rule 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Ibid. (quoting Abraham P. Ordover, Balancing the Presumption of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
This second prong of the Cofield test is not found in the text of N.J.R.E. 404(b). Therefore, the Supreme Court has held that the second prong "need not receive universal application in Rule 404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007).
Notably, the fourth prong of the Cofield test, i.e., whether the probative value of the other-crimes proof is outweighed by its apparent prejudice, "is generally the most difficult part of the test," and requires careful consideration. State v. Barden, 195 N.J. 375, 389 (2008). In performing that analysis, a court must consider whether the other-crimes evidence is necessary to prove the fact in dispute or whether other, less prejudicial evidence could be used to prove the same fact. Ibid.; Marrero, supra, 148 N.J. at 482; Oliver, supra, 133 N.J. at 151; State v. Stevens, 115 N.J. 289, 301 (1989).
It also must be kept in mind that, when viewing N.J.R.E. 404(b) in conjunction with the exclusionary terms of N.J.R.E. 403, the rule should be viewed restrictively, as a rule of exclusion rather than inclusion. State v. Darby, 174 N.J. 509, 520 (2002) (citing Marrero, supra, 148 N.J. at 482-83); see also State v. Reddish, 181 N.J. 553, 608-09 (2004) (noting that the fourth prong of the Cofield test is more stringent than the test for admissibility under N.J.R.E. 403).
Applying these principles, our courts have sometimes approved of the admission of other-crimes evidence in cases involving sexually based offenses. For example, in Marrero, supra, 148 N.J. at 489-92, the Court found that evidence of the defendant's prior sexual assault of a different victim was relevant and admissible to prove his motive and intent to kill a second victim in order to prevent her from filing sexual assault charges against him, and to refute his claim that he had not intended to kill her. Significantly, there was no other evidence available to the State in Marrero to prove motive and intent. Id. at 489.
In Stevens, supra, 115 N.J. at 294-95, 306-07, a police officer was charged with subjecting female arrestees to inappropriate strip searches for his own sexual gratification rather than as part of his official duties. There the Court also upheld the admission of evidence of additional similar allegations as relevant under Rule 404(b) to "defendant's purpose for conducting the searches and his knowledge that such conduct was an unauthorized exercise of his official position[.]" Id. at 307; see also State v. Davis, 390 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 192 N.J. 599 (2007) (concluding that other bad acts evidence was admissible, in part because it was probative of whether the defendant intended to engage in sexual acts with a person he met on the internet and believed to be an underage girl, and whether he knowingly possessed child pornography); State v. Cusick, 219 N.J. Super. 452, 464-66 (App. Div.), certif. denied, 109 N.J. 54 (1987) (finding no error in admitting evidence of the defendant's prior, unrelated conviction for assault of underage victims because that evidence was relevant to prove absence of mistake or accident, state of mind, and motive).
By contrast, in State v. G.V., 162 N.J. 252, 258-65 (2000), the Court found that the admission of evidence of the defendant's prior sexual abuse of the victim's sister, where that evidence was not relevant to a material fact in dispute, constituted harmful error. In particular, the proffered evidence was not relevant to disproving the defense of accident or mistake, as found by the trial court, because the defendant never raised that defense and could not have raised it given the nature of the allegations. Id. at 259. The Court also found that the harm in admitting the evidence was "compounded by the prosecutor's misuse of the testimony" in summation, "describ[ing] the other-crime events in broad terms that, in essence, urged the jury to use defendant's character and past conduct as a basis for inferring that [the victim's] testimony was true." Id. at 259-60.
In keeping with these Rule 404(b) principles, our courts have upheld, in appropriate circumstances, the use of joinder to try a defendant in a single trial for sexual crimes committed against multiple victims on diverse dates. See, e.g., Oliver, supra, 133 N.J. at 150-56 (involving a defendant charged with sexually assaulting two women on different dates); State v. Krivacska, 341 N.J. Super. 1, 37-41 (App. Div.) (involving a psychologist defendant who was charged with sexually abusing two children with special needs on different dates because the other-crimes evidence was found relevant to proving defendant's opportunity to commit acts of sexual abuse in his office), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002); cf. Davis, supra, 390 N.J. Super. at 591-92 (concluding that the trial court did not err in denying a motion to sever charges involving predatory behavior on the internet toward victims believed to be underage girls from charges involving possession of child pornography). But see State v. Orlando, 101 N.J. Super. 390, 391-94 (App. Div.) (concluding that the trial court erred in denying a motion to sever counts of alleged sexual abuse of two different child victims on two different dates, where "the effect of the joinder was to give the State two witnesses instead of one to overcome defendant's denial of either offense and, in view of the abhorrent nature of the offense, to multiply the chances that defendant would be convicted"), certif. denied, 52 N.J. 500 (1968).
Because there is thus no "per se" rule allowing or disallowing joinder in matters involving multiple sex crime victims, we must focus upon the particular circumstances of this case and the trial court's analysis of severance and Rule 404(b). We must further consider, even if the denial of severance were justified, whether the trial court's instructions to the jury here appropriately restricted the evidential uses of the Rule 404(b) evidence.
A.
In rejecting defendant's pretrial motion for severance, the motion judge was guided by several considerations. The judge first determined that the other-crimes evidence was "vitally relevant as to all the alleged sexual assaults." On that score, the judge noted that the proofs of all six sexual attacks were relevant "as to defendant's intent to commit a crime, as well as the issue of consent."
We substantially concur with this portion of the judge's analysis. With the exception of the 2003 alleged victim, E.J., as to whom defendant claimed an alibi, defendant maintained at trial that all of the other five sexual assault victims had consented to the sexual acts, essentially trading sex for drugs.
Under Rule 404(b), proof of disputed intent is a permissible basis for admitting "other-crimes" evidence, subject to prejudice factors under Rule 403. As the Supreme Court observed in Oliver, supra, 133 N.J. at 155, "[w]hen a defendant claims that he [engaged in sexual conduct] with permission, he puts his own state of mind in issue [] [by] argu[ing] that he reasonably believed that the alleged victim had affirmatively and freely given him [such] permission[.]" See also State in the Interest of M.T.S., 129 N.J. 422, 447-48 (1992) (noting that, where an alleged sexual assault does not involve violence or force beyond penetration, "the factfinder must decide whether . . . the defendant reasonably [was led] to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration").
Even so, in remanding for a new trial in Oliver due to charge errors, the Court "strongly suggest[ed] that [] the trial court limit the use of the other-crimes evidence to showing only the feasibility of the crimes and defendant's use of pretext." Id. at 156. The Court notably found that "evidence of past acts to show present state of mind raises problems" under N.J.R.E. 403 "because the prejudice to defendant seemingly far outweighs the limited probative quality of that evidence." Ibid.
Here, if, hypothetically, the jury was not persuaded that defendant had used force or a weapon to commit the attacks, then it would need to consider whether, as defendant asserted, he had reasonably perceived that the victims were consenting to engage in sex in order to obtain drugs. Subject to considerations of undue prejudice under Rule 403, the State could use the past acts to negate defendant's claim of an innocent state-of-mind by showing that his alleged perceptions of consent were repeatedly unreasonable or untenable.
We do note that the State's need to present the Rule 404(b) proofs with an intent-based rationale is weaker, and the corresponding prejudice to defendant is greater, as to a victim such as P.S. who was hospitalized after the attack and who had physical manifestations of injury. Lack of consent by such a victim can be adequately demonstrated without resorting to proofs about other victims.
The motion judge went beyond this intent/motive/state-of-mind rationale, however, focusing instead upon another justification to support the denial of severance. Specifically, the motion judge found that admitting proof of all of the sexual assaults at a single trial would bolster the credibility of each of the six sexual assault victims. As the motion judge noted in his written decision denying severance:
Also relevant will be other crimes evidence relating to victim credibility. The details of each alleged attack as well as the background [of] the other victims could theoretically be used to both support and attack the credibility of each witness. Therefore, to demonstrate defendant's state of mind and each victim's credibility, evidence of each of the assaults would be highly relevant.
[Emphasis added.]
This credibility-based justification was contrary to the law. The object of the character provisions in our Rules of Evidence, including Rule 404(b), is to assure that jurors do not use proof of a defendant's other wrongs or acts as evidence that the defendant is an evil person or that he acted in conformity with a predisposition to commit such a wrongful act on a particular occasion. The Rules are designed to guard against the inherent danger of "convert[ing] a trial of the issue to a judgment of the person." State v. Burke, 354 N.J. Super. 97, 109 (Law Div. 2002); see also Reddish, supra, 181 N.J. at 608 (similarly disallowing other-crimes proof to show that the defendant is generally disposed toward criminal behavior).
By adopting the notion that Rule 404(b) proofs can be used to help fortify the credibility of multiple alleged victims of the same defendant, the motion judge erroneously authorized the State to have these discrete attacks combined into one trial. At that trial, the arguably-weaker contentions of some of the victims could be shored up with the arguably-stronger allegations of the other victims. As just one example, the problem of the several-month delay of T.P-P. in reporting her attack and the inconsistencies within her account could be diminished by the jury hearing the accounts of other victims who reported their attacks more promptly and more credibly. This is an impermissible basis for admitting Rule 404(b) proofs or denying severance. Indeed, if the motion judge's rationale were correct, it would authorize the consolidation of multiple offenses in virtually every multi-victim case, as each victim's narrative could be admitted to bolster the narratives of other victims.
As the Supreme Court declared in Darby, supra, 174 N.J. at 520, "ordinarily other-crime evidence should not be admitted simply to bolster the credibility of a witness." Indeed, "[i]f other-crime evidence is admissible merely to support the credibility of a witness, then the Cofield standard designed to severely limit the use of such highly inflammatory evidence becomes meaningless." Id. at 521; see also Orlando, supra, 101 N.J. Super. at 394.
This was an important issue in the present case, where the sexual assault victims each had, albeit to various degrees, serious credibility problems. They were drug addicts and prostitutes who, in some instances, admitted having previously engaged in drugs-for-sex transactions, consistent with defendant's claims as to five of the victims. Most of the victims did not report the crimes until months after they occurred, and the victims all had criminal records, some of which were extensive.
As we have noted, the successful defense theory as to the sixth victim, E.J., was based upon alibi.
Notably, the State does not attempt in its appellate brief to adopt or defend the motion judge's credibility-based justification. In his written opinion, the judge cited to G.V., supra, 162 N.J. at 263, as support for his determination. That case is not particularly helpful to the judge's analysis. As we noted, supra, the Court in G.V. held that other-crimes evidence of the defendant's past sexual attacks on the victim's older sister was not admissible to "use defendant's character and past conduct as a basis for inferring that [the younger sister's] testimony was true." Id. at 260 (emphasis added). This prejudicial use of the older sister's allegations to bolster the younger sister's claims required a new trial in G.V., as the Court found the error was not harmless. Id. at 260-63. The Court did recognize in G.V. that the prosecution might use the attacks on the older sister to rebut defendant's specific claim that the younger sister's allegations were motivated by bias or a vendetta. Id. at 263-65. However, none of the six victims in this case was claimed to have a comparable bias or vendetta against defendant.
Consequently, the motion judge's severance analysis was severely flawed by this credibility-bolstering factor. We are not persuaded that the error was harmless, particularly in light of the other critical error thereafter committed by the judge who presided over the trial, in instructing the jurors that they could consider the other-crimes evidence as evidence of a "plan" under Rule 404(b).
We discuss this error in more detail, infra.
Moreover, a fair assessment of admissibility under Cofield and Rule 404(b) and, thereby, the decision to sever all or parts of the indictment, hinges upon a judicial balancing. The balancing entails a weighing of the points in favor of admissibility and consolidation, on the one hand, against the points in favor of exclusion and severance, as reflected in the fourth prong of Cofield, on the other. That balance may well have come out differently had the motion judge omitted any consideration of credibility-bolstering from his evaluation. Mindful that the evaluation here was tainted and also mindful of the general policy to conduct such evaluations with care in light of the policies underlying Rule 404(b), see Barden, supra, 195 N.J. at 389, we are not confident that the balancing would have been unaffected if the motion judge had ignored the credibility-bolstering rationale.
The record also reflects weaknesses in the State's fulfillment of the second and third Cofield factors. To be sure, as to the second factor, i.e., similarity in kind and reasonable closeness in time, there are some commonalities among the six victims. All of them are drug users, most of them are admitted prostitutes, and all but one of the attacks took place in 2006 in the same general area in Asbury Park. However, the record also shows that several different alleged "weapons" (i.e., a knife, a stick, a gun, and a broken mirror) were used, and that the manner in which defendant was said to get the victims to succumb varied from individual to individual. This was not a "signature crime" matter, and the State did not advance such a theory at trial. Furthermore, given the credibility problems of several of the victims, the third Cofield factor - i.e., whether the evidence of the other crimes is "clear and convincing" - is debatable.
The State also asserted that all six victims were blonde at the time of the attacks, but that contention was not verified in the trial testimony as to each victim.
On the whole, there are more than ample grounds to set aside the pretrial decision to deny severance and to have the severance ruling reconsidered, confining the analysis to only permissible Rule 404(b) uses.
B.
As we have already alluded, these problems were compounded by the trial judge's instruction to the jury allowing the Rule 404(b) proofs to be considered, among other things, as proof of defendant's supposed "plan." The following background on that subject is pertinent.
At the charge conference at trial, defense counsel agreed with the judge's suggestion to have separate verdict sheets for each victim, which ultimately were used. The judge discussed the need for an instruction that directed the jury to assess each crime separately, while at the same time explaining exactly how the jury could consider the other-crimes evidence. The prosecutor argued that the jury should be permitted to consider the other-crimes evidence on the issue of consent. Defense counsel explicitly objected to that argument, but the trial judge accepted it.
The Rule 404(b) jury instruction delivered by the trial judge was not, however, confined to uses relating to defendant's state-of-mind and his contention of consent by the victims. Instead, the judge expanded the juror's uses of the other-crimes evidence by repeatedly injecting into the charge - seven times - the notion that the jury could also consider the other-crimes evidence as proof of a "plan," without defining what a plan consisted of.
More specifically, the trial judge instructed the jurors:
You heard the testimony of six alleged victims. Each alleged victim described acts committed against her and described her assailant, including his physical description and his nickname. You've also heard how each alleged victim selected a photograph in a photo array of the person who assaulted her. You also heard the circumstances surrounding the alleged assaults. This evidence may be considered if you find it to be credible for the limited purpose as evidence in the other attacks individually. You may not conclude that if defendant committed one offense that he must be guilty of all the offenses. You can't say that we found him guilty of one, therefore, he must be guilty of all. Or we found him guilty of three, therefore, he must be guilty of six. You can't make that determination.
There's a specific purpose that you can use the finding of guilt on the others in regard to the one you are considering. Use of the evidence of one crime to prove another crime is limited. Under our law it may be used to prove a motive. It can be used to prove opportunity. It can be used to prove intent. Remember I talked about mental state. Preparation or plan. Knowledge. Identity or absence of mistake or when such matters are relevant to a material issue in dispute.
In this case in addition to his general denial of guilt, Mr. Askins has asserted the defense of consent. What he says is that he didn't do anything against anybody's will. That it was consensual. He asserts that the alleged victim, for example, [P.S.], consented to sexual acts in return for payment of drugs.
You may consider the testimony of the other alleged victims as it related to this material issue in dispute. For example, [P.S.] testified the defendant choked her from behind. You can consider the testimony of [L.C, T.P-P., E.J., C.P. and S.R.], that they or one of them, if you find that testimony to be credible, was also choked from behind by this defendant.
These are - there are other examples within the testimony of each alleged victim which you can use to determine if in fact that alleged victim did not consent. For example, the location of the offenses. The isolation of the alleged victim. The use or threatened use of a weapon. And you may consider each alleged victim's testimony as it relates both to the issue of consent and if defendant reasonably believed the alleged victim consented.
Other crimes [] [e]vidence may also be used to prove plan or motive. For example,
three witnesses, [L.C., P.S., T.P-P.], all say they were approached on the street when they were alone and that defendant took them to the same building at the corner of Fifth and Grand in Asbury Park. You may not take this testimony from the witnesses and conclude from it that defendant is a bad person and, thus, has a disposition which shows that he is likely to have done the act for which he is charged, or show a general predisposition of the defendant to commit bad acts. You may, however, consider this testimony as it may bear on the issue of whether the alleged kidnappings and sexual assaults of the alleged victims [were] part of a plan. Likewise, it may also bear on defendant's motive for doing these alleged acts.
Whether this evidence does in fact demonstrate lack of consent or motive or plan is for you to decide. You may decide that the evidence does not demonstrate lack of consent or motive or plan, is not helpful to you at all. In that case you must disregard the evidence. On the other hand you may decide that the evidence does demonstrate lack of consent or motive or plan and use it for that specific purpose.
However, you may not use this evidence to decide defendant has a tendency to commit crimes or that he's a bad person. That is you may not decide that just because defendant has committed other crimes, wrongs or acts he must be guilty of each of the present crimes.
I've admitted the evidence in regard to the other crimes only to help you decide the specific question of lack of consent or a motive or of a plan. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State had offered evidence that he committed other crimes, wrongs or acts.
[Emphasis added.]
Case law prohibits, however, the admission of evidence under Rule 404(b) to show a "plan" in the general sense of a "method" or a "way." See Oliver, supra, 133 N.J. at 152 ("This Court ruled [in Stevens, supra, 115 N.J. at 305-06] that the other-crimes evidence could not be used to show a 'common plan, design or scheme' by the defendant to exploit his position as a police officer to intimidate helpless females if they did not submit to degrading sexual acts."). "The 'plan' example refers to instances in which the other-crime evidence proves the existence of an integrated plan, of which the other crimes and the indicted offense are components." Stevens, supra, 115 N.J. at 305-06.
As the State conceded before us at oral argument, no such proof of an "integrated" plan exists in this case. Defendant wanted to and was able to have sex with the victims, but his success in accomplishing that in each instance did not increase his ability to do so each time. These were not inter-dependent acts of sexual violence. Consequently, the "plan" justification provided by the trial judge to the jurors was contrary to the law.
The prosecutor similarly expressed these improper considerations in her closing argument. She used the word "plan" and equivalent terms in their everyday, less restrictive sense, and she did so repeatedly. The term "plan" was interchanged in her summation with the terms "purpose," "game," "goal," "task," and "pattern." Among other things, the prosecutor argued to the jurors that defendant's conduct was "planned in advance," and that he had a "plan" to take advantage of several of the victims. These exhortations to common usage exacerbated the trial court's improvident allowance of Rule 404(b) "plan" evidence. See State v. Cooper, 10 N.J. 532, 555 (1952) (noting that a prosecutor's improper remarks in summation "intensified" the error of admitting evidence on improper grounds).
We are aware that defendant's trial counsel did not object to the jury charge's inclusion of a "plan" rationale. Nor did he object to the prosecutor's related remarks in closing argument concerning defendant's "plan" and other synonyms. Nevertheless, these errors, especially when viewed cumulatively, see State v. Orecchio, 16 N.J. 125, 129 (1954), cannot be cast into the dustbin of harmless error.
The State presumably derived a substantial advantage in trying all six of these alleged sexual assault incidents together. Although the jury acquitted defendant entirely as to one of the six victims and found him not guilty of a few of the weapons offenses and other incidental charges, the most serious offenses as to five of the victims produced guilty verdicts. Those convictions are tainted by the trial court's critical errors on severance and the application of Rule 404(b).
C.
For these reasons, defendant's convictions must be set aside, and the counts of the indictment as to the five remaining victims must be tried anew. We do not dictate the manner in which the charges should be retried, nor the ultimate scope of the Rule 404(b) uses that may be pursued by the State. All we hold is that: (1) in re-evaluating severance, the trial court may not take into account the fact that a joinder of the charged offenses may bolster the victims' credibility; and (2) that, regardless of how many offenses are joined together, the trial judge may not instruct the jury that the offenses can be considered part of a common "plan."
The trial court, in its sound discretion, may conclude that five separate trials are warranted or that some combinations thereof are appropriate. We do advise, however, that a separate trial as to P.S. is necessary because of the distinctive corroborating proofs of physical violence that make it unnecessary for the State to resort to Rule 404(b) evidence to disprove consent. In addition, the precise Rule 404(b) uses that the State may invoke are open to further exploration, so long as they do not include a "plan" justification.
In addition, defendant's statement to the police should be appropriately sanitized on retrial, so that the jury is not provided with the details of other crimes that are not properly before them as Rule 404(b) evidence. We do not regard the failure of defendant's prior trial counsel to demand redaction of the statement as foreclosing his trial counsel on remand from seeking such protective measures.
Our disposition makes it unnecessary to consider defendant's claim that his original trial counsel was constitutionally ineffective in failing to request such redactions. In any event, such claims of ineffectiveness are not well suited to be considered on direct appeal. See State v. Castagna, 187 N.J. 293, 313 (2006).
We fully acknowledge that the violent sexual acts attributed to defendant by the five remaining victims, if they are credible and true, are undoubtedly reprehensible. Nonetheless, the harmful errors made by the trial court when these assaults were combined in one trial had the clear capacity to deprive defendant of his right to a fair trial. See R. 2:10-2; cf. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
Defendant's convictions of the lesser-included offense of harassment with respect to the police detectives, however, are unaffected by the errors relating to severance and Rule 404(b) proofs. The indictment charged defendant in counts twenty-six and twenty-seven with terroristic threats against the detectives, based upon his violent behavior and threatening statements after they arrested him. To establish the elements of a terroristic threat, the State was required to prove, among other things, that a reasonable person in the detectives' position would have believed the threats. See State v. Dispoto, 189 N.J. 108, 121-22 (2007) (interpreting the related provision in N.J.S.A. 2C:12-3b); State v. Butterfoss, 234 N.J. Super. 606, 611-12 (Law Div. 1988) (interpreting N.J.S.A. 2C:12-3a). In order to show such a reasonable belief by the officers, it was relevant and appropriate under Rule 404(b) for the jury to consider what they knew about his prior offenses when they arrested him. Moreover, the jury convicted defendant only of the lesser-included offense of harassment as to the detectives, which indicates that defendant was not unfairly prejudiced in the disposition of counts twenty-six and twenty-seven by the "other crimes" proofs admitted. Consequently, we affirm the convictions on those two discrete counts.
Defendant did not expressly argue in his brief that a new trial was necessary as to these counts, but we consider the question to the extent that such a contention might be implied.
III.
For sake of completeness, we briefly address defendant's additional argument that the trial court improperly deprived his counsel of access to the medical and mental health records of P.S., S.R., and L.C. On this subject, we agree with the State that the trial court did not misapply its discretion in denying the defense access to this privileged information. See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010).
The trial court reasonably concluded that the fact that S.R. and L.C. had considered or attempted suicide in the past and that P.S. had received mental health counseling in the past did not overcome those individuals' privacy interests. Defendant did not make the compelling showing that the law requires to obtain such records. See Kinsella v. Kinsella, 150 N.J. 276, 328-30 (1997); see also N.J.R.E. 505; N.J.R.E. 506. Moreover, the denial of defendant's request was consistent with the "special need" in sexual assault cases "to protect victims and witnesses from emotional trauma, embarrassment, and intimidation." State v. Gilchrist, 381 N.J. Super. 138, 147 (App. Div. 2005). The nexus between the alleged victims' suicidal feelings and prior mental health treatment and their veracity as trial witnesses is too attenuated on this record to conclude that the trial court abused its discretion by upholding patients' interests in confidentiality.
Affirmed in part, reversed in part, and remanded for retrial consistent with this opinion.
Because the cases must be retried, we need not address defendant's arguments respecting the severity or legality of his sentence, except that we discern no basis to "second-guess" the two consecutive thirty-day jail terms imposed for the harassment offenses. See State v. Bieniek, 200 N.J. 601, 612 (2010). Defendant's brief, in fact, does not contest the aggregate sixty-day consecutive sentence for these clearly-distinct offenses.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION