State v. MergottState v. Mergott
Defendants Bruce Mergott and Carl Eckhart were charged in an indictment for the rape of N.M., in violation of
At the close of the State‘s case, defendant Eckhart‘s motion for a judgment of acquittal on the charge of assаult with intent to kill was denied. Defendant Eckhart renewed his motion at the close of the trial and Mergott made a similar motion; both were denied. These rulings are claimed by defendants to have been in error.
From this juncture the State and defense versions of events diverge radically. Defendants сlaimed that N.M. told Mergott that she wanted to “ball” (i.e., have sex) with several of the men in the house, but that she didn‘t want M.S. to know what was going on. The State‘s theory was that N.M. was repeatedly raped.
M.S. testified that at 3:00 or 3:30 in the morning he was dragged from the bed he shared with N.M. by defendants Eckhart and Mergott. His hands were forced behind his back and Eckhart poked at him with a hunting knife. Someone said, “We want the girl.” He was then blindfolded and led down to the basement by Probst and Eckhart. Because of the poor blindfolding job he was able to see N.M. yanked naked from the bed.
When the men first burst into the room N.M. screamed. Eckhart told M.S. to shut her up or he would kill him. As he was being led away M.S. was repeatedly told that he wouldn‘t get hurt unless he tried to be a hero, but that if he did try, he‘d be a dead hero. Both defendants made threats.
M.S., who was naked, having gone to bed with no clothes on, was taken to the basement, tied up and placed on the floor. He was kicked and beaten by Probst when he refused to show appreciation for the record album Probst was
After a time defendant Mergott came downstairs and asked “Who‘s next to play with the girl? Who‘s next to plug N.?” There was also talk from Eckhart about cutting off one of M.S.‘s fingers or an ear so thаt he would remember not to go to the police.
After a passage of time codefendant Catalano (not an appellant here) entered. N.M., wrapped in a blanket, was then brought downstairs. In M.S.‘s presencе Catalano had intercourse with N.M. and then demanded that she perform fellatio on him, threatening her with anal rape if she did not comply. N.M. acquiesced.
N.M. testified that after M.S. was taken downstairs she was raped by defendаnt Mergott and forced to perform an act of fellatio on him. She was mistreated in identical fashion by defendant Eckhart. She testified that she acquiesced in the sexual activity solely from fear and that she tried to talk both defendants out of raping her, promising not to go to the police if they left her alone. Both defendants had knives.
After Catalano finished with N.M., M.S.‘s hands were untied and he was told to go gather his belongings. Upstairs, M.S. took a couplе of letters from a dresser top, in order to have a record of the address.
N.M. and M.S. were warned that defendants had their addresses and that if they went to the police the Pagans — or their Hell‘s Angels affiliates — would find them and “gеt” them. Everyone then went to sleep in the basement.
Later that morning N.M. woke M.S. up, and John, one of the people in the house, told M.S. and N.M. to leave, giving them directions to the highway. In town they flagged down a police cаr and told their stories. Later that day they identified defendants.
Other state witnesses testifiеd that both defendants were armed with knives. Only one witness — other than defendants themselves — offered testimony in support of defendants’ position. Peter Muti testified that he was at the house that early morning and saw N.M. walk out of the bathroom nude while defendant Mergott had his arms around her. Muti testified further that he heard Mergott ask N.M. if she was willing to go along with “this so-called fun thing” and that N.M. answered, “Yeah.”
Probst, originally a defendant, testified that defendant Eckhart, at one pоint, removed an ax from one of the backpacks M.S. and N.M. had been carrying and began talking about “chopping them up.”
Defendants testified that their initial desire to have sex with N.M. cooled because they thought she might havе a disease; hence, they only let her perform oral sex and that only at her urging.
A trial judge must enter a judgment of acquittal, whether at the end of the State‘s case or at the conclusion of the entire case wherе, after viewing the relevant evidence in its entirety and giving the State the benefit of all reasonable inferences to be drawn therefrom, he finds that a reasonable jury could not find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459 (1967). In reviewing a decision of the trial court on this question, this court is governed by that same standard. State v. Moffa, 42 N.J. 258, 263 (1964).
From our review of the record we are satisfied that the evidence adduced at trial was not sufficient to establish that defendants assaulted M.S. with the intent to kill him, within the purpose and meaning of
The reported cases arising out of offenses found to have been committed in violation of
An assault with intent to kill entails conduct whiсh has surpassed the preparatory or attempt phase of criminality. As such, it must be characterized by assaultive behavior intended presently and contemporaneously to kill. Thus, in State v. Still, 112 N.J. Super. 368 (App. Div. 1970), certif. den. 57 N.J. 600 (1971), the court concluded that an assault with intent to commit sodomy involved greater proximity to completion of the offense than did an attempt to commit sodomy. 112 N.J. Super. at 371; Cf. State v. Blechman, 135 N.J.L. 99, 102 (Sup. Ct. 1941). Hence, while assault with intent to commit a particular crime encompasses an аttempt to do so, attempt as such does not necessarily include an actual assault with criminal intent.
In Commonwealth v. Clopton, 447 Pa. 1, 289 A.2d 455 (Sup. Ct. 1972), this distinction was drawn. Defendant there was acquitted of the charge of assault with intent to kill, the court noting that the assault statute
It seems reasonably clear from the evidence that defendants did not intend contemporaneously to kill M.S. when they “assaulted” him. While there was ample evidenсe that M.S. was assaulted, the proofs did not establish that at the time M.S. was assaulted, defendants then intended to kill him.
The State argues that should the convictions for assault with intent to kill be reversed, this court ought to find defendants guilty of the lesser included offense of assault with a dangerous weapon. That course of action, however, would not be appropriate in this case. Defendant was not charged with the offense now suggested by the State and thаt crime is not necessarily included in the offense for which he was charged. More importantly, the jury, not having had the opportunity to do so, did not determine him to be guilty of the other offense. Cf. State v. McCoy, 114 N.J. Super. 479 (App. Div. 1971).
Accordingly, the convictions of the defendants of the crimes of assault with intent to kill are reversed. It is unnecessary, in light of this determination, to address the additional argument for reversal on the ground that the trial judge erroneously denied defendant Mergott‘s new trial motion on the charge of assault with intent to kill and that the verdicts thereon were contrary to the weight of the evidence.
It is further contended that the trial court denied erroneously defendants’ motions for a new trial on the charge of rape. Defendants emphasize, in support of this argument, the lack of medical evidence and the incredibility of the testimony of the victim.
The absence of medical evidence as bearing upоn the rape was not crucial. It did not in any degree diminish
Other points are raised by defendants pro se. It is asserted that Probst should not have been allowed to testify because he was unreliable. It is also claimed that there was an imрroper identification of defendants at police headquarters. These arguments we find devoid of merit.
Finally, it is argued that the sentences imposed were manifestly excessive. In view of our reversal of the conviсtions of assault with intent to kill we need be concerned only with the sentence of a 10 to 15-year term imposed on each defendant for his rape conviction. We note the further argument that in view of defendants’ relative youth, the balance of their sentences should be modified to be served at the Youth Reception and Correction Center at Yardville in view of its superior rehabilitative facilities.
We have considered the еntire record in this matter, including the presentence report and the additional reasons advanced pro se by letter bearing upon defendants’ sentence and incarceration. We are satisfied that the sentencеs imposed are not manifestly excessive or a mistaken exercise of discretion. We do not perceive any sufficient basis for a modification of the sentences.
The convictions for rape are affirmed. The convictions for assault with intent to kill are reversed.