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State v. Muhammad3/15/2005
Argued October 12, 2004
A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his state law privilege against self-incrimination. In this case, we reaffirm that a suspect's silence while in custody, under interrogation, or "at or near" the time of his arrest cannot be used against him in a criminal trial. We agree with the Appellate Division that the prosecutor's improper use of defendant's pre-arrest silence as evidence of guilt requires the reversal of his conviction of criminal sexual contact. We disagree, however, with the appellate panel's conclusion that the trial court did not have a rational basis to instruct the jury on the charged offense of aggravated criminal sexual contact and the lesser-included offense of sexual contact. Because defendant's conviction was supported by sufficient evidence in the record, we also reject defendant's argument that any seeming inconsistency between the verdict acquitting him of the sexual assault charges and convicting him of sexual contact warranted a dismissal. We, therefore, vacate the panel's entry of a judgment of acquittal on the sexual contact charge. In light of the prosecutor's improper use of defendant's pre-arrest silence, we remand for a new trial.
I.
A Passaic County grand jury indicted defendant Naseem Abdul Muhammad for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The charges alleged that defendant abducted and raped M.M. The strange events that led to those charges were detailed at defendant's eight-day jury trial in April 2002.
M.M. testified that at approximately 11:30 p.m. on December 22, 1999, she was walking home from her cousin's house in Paterson through an area known for prostitution. As she approached the corner of Ellison Place and East 22nd Street, a slowly driven Nissan Maxima pulled up in front of her and stopped. Defendant, dressed in street clothes, stepped out of the vehicle, displayed a silver badge and identification card, and announced, "I'm a Paterson Police Officer, you're under arrest for soliciting prostitution." M.M. denied that she was a prostitute, explaining that she lived around the corner and was on her way home. Unswayed, defendant told her that she was "going down for soliciting" and ordered her to get into the back seat of his car.
In the driver's seat, defendant drank from a 22-ounce bottle of Budweiser and repeated that M.M. was under arrest for prostitution. He drove to a dark, dead-end street, where he parked the car and told M.M., "if you do me right I'll let you go." After M.M. expressed uncertainty about the meaning of that offer, defendant said the words again and then climbed over the front seat into the back passenger area. Ignoring M.M.'s request to be taken to the police station, defendant put a condom on his penis, pulled M.M. by her hair, and forced her to perform oral sex. Afterwards, defendant ordered M.M. to take her clothes off. When she refused, defendant pulled her pants down, turned her over onto her stomach, and engaged in vaginal intercourse with her against her will for fifteen to twenty minutes until he ejaculated. Defendant then removed the condom, wrapped it in a paper towel, threw it on the floor of the car, and got dressed. As he exited from the rear door to return to the driver's seat, M.M. picked up the paper towel containing the condom and placed it in her pocket.
Back behind the wheel, defendant told M.M. to put on her clothes and get in the front passenger's seat. She refused, fearing that if she exited the car, defe
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