STATE OF NEW JERSEY v. RICHARD HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1044-04T11044-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD HILL,

Defendant-Appellant.

___________________________

 

Submitted March 14, 2006 - Decided July 13, 2006

Before Judge Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, I-3809-12-01.

J. Michael Farrell, attorney for appellant.

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Robin A. Hamett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant was convicted of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1) and (2); three counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(3), (4) and (5); one count of simple assault, contrary to N.J.S.A. 2C:12-1(a); one count of third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a); one count of third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d); and second-degree conspiracy to commit the offenses of first-degree kidnapping and first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:5-2, 2C:13-1(b) and 2C:14-2(a). On September 16, 2004, after merger of offenses, Judge William J. Cook sentenced defendant to an aggregate custodial term of thirty-five years with parole ineligibility of twenty-nine years, two months and eight days.

J.P., aged thirty-four, testified that she endured a night of horror when following her kidnapping, she was raped multiple times, endured various other forms of sexual abuse and was subjected to physical abuse as well as terroristic threats. She testified that she left her sister's house to walk to her home in Haddonfield and decided to stop at the Westmont Inn, a local tavern, on the way. When she entered, she saw defendant and Ryan Shavitz. J.P. had known defendant and his wife for about ten years. She knew Shavitz as a friend of defendant, having met him on one prior occasion when he invited her for a ride on his motorcycle. She said that the two later exchanged calls but never met again.

J.P., defendant and Shavitz remained in the tavern until shortly before the 2 a.m. closing time when she accepted Shavitz's offer to driver her home. J.P., defendant and Shavitz got into Shavitz's SUV and they drove to defendant's home in Oaklyn. When they arrived, defendant invited the others to finish a six-pack of beer he had purchased before leaving the bar. Shavitz told J.P. that they would have one beer and then he would take her home. She agreed, and the three entered a detached, two-story garage where they each drank a beer and smoked some marijuana. When defendant insisted J.P. sit on his lap, she began to feel uncomfortable. She thanked Shavitz for the ride and began walking down the driveway to Beechwood Avenue.

Testifying pursuant to a plea bargain in which he pleaded guilty to one count of aggravated sexual assault, conspiracy to commit kidnapping and possession of a handgun without a permit, Shavitz said that defendant ordered him to bring J.P. back after she walked away. Shavitz said that defendant was his sponsor in the Pagan Motorcycle Club and understood from defendant's tone that he was required to bring J.P. back to the garage. Accordingly, he drove to find J.P. walking down the road and was able to coax her to return by telling her she would not be hurt. J.P. testified differently. She said that Shavitz grabbed her and made her go back into the garage. Again defendant told her to sit on his lap. When she refused, Shavitz pushed her over to defendant. As J.P. struggled and pleaded to leave, defendant began kissing her. She continued to struggle and said defendant pushed her against a workbench, grabbed a knife and held it to her throat. He then forcibly took off J.P.'s shirt and bra with Shavitz's assistance. Both men pushed her upstairs to a mattress on the floor where the two men forced her to lie on her back as they stripped her of all of her clothing except her socks. Defendant put his hands over her mouth and nose and then began choking her. He forced her to perform fellatio and then vaginally penetrating her while Shavitz watched.

J.P. said she began to hyperventilate and told defendant she had to urinate. Shavitz took her outside, and she begged him to let her go. When she began to physically resist, Shavitz wrestled her to the ground and dragged her back into the garage. He threatened to kill her and choked her so that she lost consciousness. When she awoke, she was on the garage floor. She heard Shavitz tell the defendant, "I think I killed the bitch." Defendant told Shavitz to drag J.P. back upstairs. Defendant was undressed and said to her, "Now you're really going to pay." He pushed her back onto the mattress and raped her while forcing her to perform fellatio on Shavitz at the same time. She said that both men continued to sexually abuse her. Defendant degraded her by pouring beer over her and then raped her two or three more times.

Defendant directed that Shavitz go downstairs and remain there rather than leave for work, an order which Shavitz said he had to follow because of his association with the Pagan's.

After defendant finally dozed off to sleep, J.P. managed to escape by removing a screen from an upstairs window. Armed with a pair of scissors and a beer bottle for use as protection, she fell to the driveway. She ran toward the White Horse Pike where she found a payphone in front of the Oaklyn Liquor Store and called the police. It was 4:50 a.m. J.P. identified herself and gave the location of the payphone. She told the police dispatcher that she had been raped by two men, and she was afraid they might find her. The dispatcher kept J.P. on the phone and called Officer Jayne Jones to go to J.P.'s location. On arrival, she saw J.P. crouched in a corner of the phone booth while still on the phone. She was naked and clutching a pair of scissors. Officer Jones described J.P. as hysterical, and she tried to calm her down. J.P. told the officer that she had been raped by two men and was afraid that they were looking for her and would find her. After Officer Jones put her in the patrol, she said her assailants were Dick Hill and a man named Brian and that they lived three houses away.

Meanwhile, defendant woke up and saw that J.P. had escaped. According to Shavitz, defendant threatened to murder him for letting her go. Shavitz and defendant then grabbed J.P.'s clothing, her purse and stashed them under a landscaping trailer outside the garage. At this point, police vehicles arrived. Defendant and Shavitz were standing outside the garage next to the trailer. They were arrested and taken into custody.

J.P. was taken to the emergency room of a nearby hospital where she was examined by a certified Sexual Assault Nurse Examiner, who later testified that the internal examination revealed tears on J.P.'s external genitalia and urethra as well as redness in the entire genital area, all of which were consistent with sexual penetration. During her cross- examination, J.P. acknowledged that she had been sexually intimate with two other individuals within two days of the August 17 incident.

The defense called Patricia Hill, defendant's wife, who stated she had a poor relationship with J.P. She said they had a confrontation in a local tavern and had to be physically separated. She testified that J.P. looked her "dead square in the eye and said I will get you back."

Defendant testified on his own behalf that he began drinking on the afternoon of August 16 shortly after he arrived home from work at about 3:30. He began at Greenwood Tavern where he "did shots" with his wife and son-in-law. He said that he also took a Xanax pill given to him by a friend. He then moved on to the Westmont Inn. He said he was "woozy" when he arrived but continued to drink beer and shots. He said that he dozed off at the tavern because of the combined effect of the Xanax and alcohol.

Defendant admitted leaving the tavern with Shavitz and J.P. and going to his home. He said they agreed to go to his garage to have some beer and smoke some pot. He said he was talking with Shavitz and J.P. and finally told them he was going to go inside his house to "rest a second." He said he fell asleep until his wife awoke him. He went outside and saw Shavitz by the garage. As he asked Shavitz what he was still doing there, the police arrived and arrested him. He specifically denied kidnapping, raping, abusing or assaulting J.P. in any manner.

Following his conviction and sentence, defendant filed his notice of appeal and now makes the following arguments:

POINT I - THE TRIAL COURT ERRED IN FAILING TO DISMISS JUROR NUMBER FIVE AFTER THE JUROR TOLD THE COURT HE FEARED FOR HIS SAFETY FOLLOWING TESTIMONY WHICH INDICATED THE DEFENDANT WAS MEMBER OF THE PAGAN MOTORCYCLE CLUB.

POINT II - PURSUANT TO THE NEW JERSEY SUPREME COURT'S DECISION IN STATE OF NEW JERSEY V. NATALE AND COMPANION CASES, THIS COURT SHOULD VACATE THE DEFENDANT'S SENTENCE AND REMAND THIS MATTER FOR A NEW SENTENCING HEARING BASED ON THE RECORD FROM THE PRIOR SENTENCING WITH INSTRUCTION TO THE TRIAL COURT TO DETERMINE WHETHER THE ABSENCE OF THE PRESUMPTIVE TERM IN THE WEIGHING PROCESS REQUIRES IMPOSITION OF A DIFFERENT SENTENCE NOT GREATER THAN THE SENTENCE ALREADY IMPOSED.

POINT III - THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S KIDNAPPING AND AGGRAVATED SEXUAL ASSAULT CONVICTIONS DID NOT MERGE AND IMPOSING CONSECUTIVE SENTENCES, IN THAT ITS DECISION REQUIRED THE FINDINGS OF FACTS EITHER ADMITTED BY THE DEFENDANT NOR FOUND BY THE TRIAL JURY IN VIOLATION OF BLAKELY V. WASHINGTON.

After careful review of the record and the briefs submitted, we find that the arguments made by the defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We make only the following comments.

Prior to trial defense counsel submitted to the trial judge a series of questions about the Pagan Motorcycle Club to weed out any potential prejudice by members of the jury. The trial court agreed, and these questions were included during the court's voir dire examination. Three days into the trial, Ryan Shavitz testified for the State. On cross-examination he was confronted with the fact that some of his testimony on direct examination described incidents or conversations which he did not include in his original statement to the police. On re-direct he stated that the reason he was not completely truthful during his earlier statement was that he was afraid of possible repercussions from the defendant. The following day after the prosecution presented its final witness, the trial judge advised counsel that he had received a note written by a court aide stating, "[O]ne of the jurors wants me to talk to the judge concerning his and his family's safety regarding the fact that the defendant is a Pagan. When would be a good time to approach the judge?" After reading the note, the judge ascertained that the juror in question was juror number five, Horatio Rodriguez. He had Rodriguez come into the courtroom and examined him with counsel and defendant present. Rodriguez said he had had no association with the Pagan's and had not shared his concerns about his safety and the safety of his family with the other jurors. The court inquired further:

THE COURT: Do you want to elaborate any more on this?

JUROR #5: Well, I think it's a logical concern based on the fact that the co-defendant was threatened as he testified, you know. I don't think it depends on the outcome of the case, I think I'm uncomfortable with the fact that we stated our names up front and said where we lived before the case started.

THE COURT: You understand, by the way, that you are not to come to any conclusion about the credibility or truthfulness

. . .

JUROR #5: It has nothing to do with that.

THE COURT: . . . until you get back in the jury room, right?

JUROR #5: Right.

THE COURT: But you have a concern because of the fact that the evidence you heard so far, whether its truthful or not, you have a concern about you and your family.

JUROR #5: I don't think its based on any of the evidence, I think this concern stems from the initial stating your name and where you live.

THE COURT: Okay. Of course. Of course. Let my ask you this. Is this concern such that you don't think you could stay on this jury?

JUROR #5: Oh, no, absolutely not. I think we're in it. I'm committed to doing the right thing and I'm very unbiased. But I don't think it has anything to do with being . . . the question of being on the case or off the case.

THE COURT: Your addresses, by the way, and I should tell you this, are not public.

JUROR #5: Okay.

The judge directed Rodriguez to return to the jury room, after which he stated for the record that he was satisfied that the juror could be fair and impartial and follow the court's instruction. Defense counsel moved to excuse Rodriguez for cause, arguing that his answers were insufficient to show he could competently serve as a juror. The judge then called the court aide to testify. She said that Rodriguez told her he was "a little concerned for his safety" since defendant was a member of the Pagans and asked if the court provided some form of protection. She said Rodriguez added that a number of other jurors were similarly concerned that their names and addresses were known, but did not identify the other jurors. Defense counsel renewed his request for excusing Rodriguez as a juror for cause, asserting he had not been forthright in response that he had not discussed the matter with other jurors. The judge had Rodriguez return to the courtroom for further questioning. He responded that he had not discussed the matter with other jurors, and, to his knowledge, no other jurors had raised any concern about their safety. The judge sent Rodriguez back to the jury room and denied the defense motion.

We conclude that there was no error by the trial judge in denying defendant's motion to excuse Rodriguez or declare a mistrial. Judge Cook followed the procedure outlined by our Supreme Court in State v. R.D., 169 N.J. 551, 557-61 (2001). Giving deference to the ability of the trial judge to assess the credibility of the juror, we perceive no abuse of discretion which would impact in denying defendant a fair trial. See State v. Dreher II, 302 N.J. Super. 408, 501 (App. Div.), certif. denied, 152 N.J. 10 (1997) (quoting Smith v. Philips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982)).

Affirmed.

 

(continued)

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A-1044-04T1

July 13, 2006