STATE OF NEW JERSEY v. STEVEN MCGOWAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4682-03T44682-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN MCGOWAN,

Defendant-Appellant.

__________________________________________________________

 

Submitted October 25, 2005 - Decided November 18, 2005

Before Judges Coburn and Collester

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment

No. 02-07-2857.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

Steven McGowan, appellant pro se.

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Debra G. Simms, Special Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

An Essex County grand jury returned an indictment charging Steven McGowan and Hector Mazza with first degree attempted murder, N.J.S.A. 2c:11-3 and N.J.S.A. 2c:5-1; second degree aggravated assault, N.J.S.A. 2c:12-1b(1); fourth degree unlawful possession of a weapon, N.J.S.A. 2c:39-5d; and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2c:39-4. McGowan was tried alone, the jury found him guilty of second degree aggravated assault, but not guilty on the other charges. The judge sentenced McGowan to an extended term of imprisonment of fifteen years, with eight and one-half years to be served without parole. McGowan appeals, and we affirm.

Around midnight on April 22, 2002, after consuming a considerable amount of vodka and beer in a friend's house, the victim, Richard Otero, and Gerald Rockefeller and Ronnie Davis, walked down Main Street in West Orange. Near the Llewellyn Hotel, Otero noticed that there were two men, later identified to be McGowan and Mazza, standing across the street. One of them made an unidentified remark to Otero. Rockefeller and Davis were unaware of the remark and continued walking. Otero crossed the street towards the two men, with a bottle of vodka in his hand.

After exchanging of words, a scuffle ensued between Mazza and Otero, during which Mazza punched Otero in the stomach while McGowan held Otero's arms for around twenty seconds and said to Rockefeller, "let him go one and one." Rockefeller and Davis were not engaged in the fight.

After Otero knocked Mazza down to the ground, McGowan started exchanging blows with Otero. Seeing a knife in McGowan's hand and a shiny object in Mazza's hand, Otero fled down the street. McGowan pursued Otero yelling, "I'm going to kill you." To impede McGowan's movement, Otero threw a garbage can in the middle of the street. Otero reached a corner and McGowan stopped chasing him. Otero saw that there was blood all over him and that his intestines were hanging down to his knees.

Otero was subsequently transported to the University Hospital in Newark, where he underwent surgery for multiple stabs to his abdomen, chest, buttocks, left arm and right hand. The operating surgeon stated that the stab wounds were life-threatening and Otero could have died if his treatment had been delayed for another twenty or thirty minutes.

The day after the stabbing, Rockefeller identified Mazza's photo for the police. The afternoon after the surgery, without hesitation, Otero identified McGowan's photograph from a six-photograph array as that of one of his two assailants. The investigating detective testified that Otero was alert when he made the identification. After the identification, police tried in vain to locate McGowan by patrolling the area he lived in and issuing a crime alert.

The detectives went to the Llewellyn Hotel and observed blood smears from the sidewalk, front door, inner door of the hotel to McGowan's room. Although no one was present in McGowan's room then, detectives found a blood-stained white shirt and paper towels. DNA testing revealed the blood on the shirt and paper towels was from neither the victim nor McGowan.

McGowan's girlfriend, Stephanie Cerreto, came to McGowan's room on April 23, 2002, and removed all of his belongings for him. He never returned. Cerreto also testified that on August 2, 2002, three and a half months after the stabbing incident, she and McGowan were stopped by the police in Byram Township. She claimed that she could not remember whether police asked McGowan for his name and address or whether he gave incorrect information.

Investigator Todd Guess testified that in a pre-trial interview one week before the trial, Cerreto told him that being aware of a warrant issued for his arrest, McGowan lied to the Byram police about his name and date of birth.

The State moved for imposition of a persistent offender extended term, N.J.S.A. 2C: 44-3a. After finding that McGowan had a history of twenty two arrests, four open bench warrants, nine municipal court convictions, and two previous indictable convictions, the judge granted the motion. In deciding the length of the sentence, the judge found no mitigating factors and three aggravating factors: the gravity of the harm because the victim nearly died, the risk that defendant will commit another crime, and the need for deterring the defendant and others from violating the law.

II

On appeal, McGowan's attorney offers four arguments:

I. THE INCLUSION OF THE FLIGHT CHARGE IN THE JURY INSTRUCTION CONSTITUTES REVERSIBLE ERROR.

II. THE ADMISSIBILITY OF DEFENDNAT'S CONDUCT SUBSEQUENT TO THE OFFENSE WAS UNDUELY PREJUDICIAL AND CONSTITUTES REVERSIBLE ERROR.

III. THE AGGREGATE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED.

IV. DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED.

a. The lower court abused its discretion by imposing an extended term

b. The lower court erred by failing to recognize appropriate mitigating factors and /or recognizing an inappropriate aggravating factors

c. The lower court violated the Sixth and Fourteen Amendments to the United States Constitution(Blakely argument).

In addition, McGowan filed a pro se brief with the following arguments:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR BY CHARGING THE JURY WITH ACCOKPLICE LIABILITY ON AGGRAVATEDE ASSAULT OURT OF SEQUENTIAL ORDER. THE TRIAL COURT CHARGED THE JURY ON SECOND DEGREE AGGRAVATED ASSAULT-SIMPLE ASSAULT, THEN CHARGED THIRD DEGREE AGGRAVATED ASSAULT-SIMPLE ASSAULT, CREATING CONFUSION OF THE JURY AS TO THE PROPER ORDER OF THE LESSER INCLUDED OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT BASED ON ACCOMPLICE LIABILITY. THE TRIAL COURT FAILED TO PROVIDE A COMPREHENSIBLE EXPLANATION OF THE QUESTION THAT THE JURY MUST DETERMINE INCLUDING THE LAW OF THE CASE APPLICABLE TO THE FACTS THAT THE JURY MAY FIND THE TRIAL COURT FAILED TO INCORPORATE SPECIFIC EVIDENTIARY FACTS INTO THE JURY CHARGE WHICH IS ESPECIALLY HELPFUL IN A PROTRACTED TRIAL WITH CONFLICTING TESTIMONY. THE TRIAL COURT FAILED TO MOLD THE INSTRUCTION IN A MANNER THAT EXPLAINS THE LAW TO THE JURY IN THE CONTEXT OF THE MAWTERIAL FACTS OF THE CASE. THIS DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY, U.S. CONST. AMEND. 6; ART I PAR. 10 N.J. CONST. (1947). THIS DEPRIVED THE DEFENDANT OF HIS RIGHT TO DEFEND LIFE AND LIBERTY WITH DUE PROCESS OF LAW, U.S. CONST. AMEND. 14, ART I PAR 1 CONST. OF N.J. (1947). THE COURT ENCROACHED AND IMPAIRED THE JURY'S PROVINCE BY DEPRIVING THEM OF A INSTRUCTION THAT WOULE ENABLE THIS JURY TO DELIBERATE AND DETERMINE THE FACTS PRESENTED IN EVIDENCE BY TESTIMONY, THEREBY DEPRIVING THE JURY OF THEIR OPPORTUNITY TO DECIDE THE RELEVANT FACTUAL QUESTION, IT IS NOT SUFFICIENT TO URGE THAT THE RECORD CONTAINS EVIDENCE THAT WOULD SUPPORT A FINDING OF GUILT EVEN UNDER A CORRECT VIEW OF THE LAW. U.S. CONST. AMEND. 6, ART I PAR. 9 N.J. CONST. (1947). CHARGE WAS CONFUSING IN THE CASE AT BAR. [SIC]

POINT II

PHOTOGRAPHS OF THE DEFENDANT'S APARTMENT AS WILL AS OF DEFENDANT'S T-SHIRT WERE ADMITTED INTO EVIDENCE EVEN THOUGH THE D.N.A. TESTING CONFIRMED THAT THE SAMPLES TESTED BY THE STATE WERE NOT THE DEFENDANT'S D.N.A. AND ALSO WERE NOT THE VICTIMS D.N.A. THE EVIDENCE SHOULD HAVE BEEN EXCLUDED BY THE TRIAL COURT AS IT LACKED PROBATIVE VALUE AND IT WAS NOT RELEVANT AS ESTABLISHED BY LABORATORY TESTING. THE PREJUDICIAL VALUE OUTWEIGHES THE PROBATIVE VALUE, CAUSING PREJUDICE TO THE DEFENDANT AS THIS INFECTED THE JURY CAUSING STRUCTURAL CONSTITUTIONAL ERROR WHICH IS PLAIN ERROR, DEFYING HARMLESS ERROR ANALYSIS. THIS DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY, U.S. CONST. AMEND. 6, ART. I PAR 10 N.J. CONST. (1947), AND DEPRIVED THE DEFENDANT OF DUE PROCESS OF THE LAW APPLIED TO THE STATES THROUGH THE 14TH AMEND. OF THE U.S. CONST., ART I PAR 1 N.J. CONST. (1947).

[SIC]

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT STATED THAT THE PROSECTION MUST PROVE ITS CASE BY MORE THAN A MERE PREPONDERANCE OF EVIDENCE, WHICH DILUTED THE STANDARD OF PROOF AND REDUCED DEFENDANT THE PROCESS OF PRESUADING THE FACTFGINDERS OF THEIR TRUE FUNCTION. THIS INFECTED THE JURY'S ABILITY TO ACT AS IMPARTIAL JUROURS AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. THIS CLEARLY AMMOUNTS TO STRUCTURAL DEFECTS IN THE CONSTITUTION OF THE TRIAL MECHANISM, REQUIRING AUTOMATIC REVERSAL BECAUSE IT INFECTED THE ENTIRE TRIAL PROCESS. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY UNDER THE U.S. CONST. AND ART. I PAR. 10 OF THE CONST. OF N.J. (1947). DEFENDANT WAS ALSO DEPRIVED OF HIS RIGHT TO DEFEND LIFE, PROPERTY AND LIBERTY SECURED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONST. AND ART. I PAR. 1 OF THE CONST. OF N.J. (1947). THE JURY WAS GIVEN AN INSTRUCTION TO APPLY A LITTLE MORE THAN THE CRITERIA FOR CIVIL ACTION "MORE THAN A MERE PREPONDERANCE OF EVIDENCE." [SIC]

After carefully considering the record and briefs we are satisfied that all the arguments offered by McGowan's attorney and by McGowan himself are without sufficient merit to warrant discussion. R. 2:11-3(3)(2). Nevertheless, we add the following comments on the attorney's arguments:

McGowan argues that the trial judge erred in giving a fight charge because there was no testimony to support it.

As the Court noted in State v. Sullivan, 43 N.J. 209, 238-39 (1964),

[f]or departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.

Here, the State presented substantial evidences, including McGowan's leaving his residence after the stabbing; having had his girlfriend to remove his belongings, and lying to police officers about his identity three months later to avoid arrest for the charges arising from the stabbing incident. The trial judge's inclusion of the flight charge was not erroneous.

Defendant argues that the admission of the evidence that he lied to the Byram police had little probative value and was unduly prejudicial.

The admissibility of a relevant evidence falls largely within a trial judge's discretion. State v. Nelson, 173 N.J. 417, 470 (2002). In performing the weighing process called for by N.J.R.E. 403, the trial judge's "discretion is a broad one." State v. Sands, 76 N.J. 127, 144 (1978).

Here, the evidence was relevant because it showed McGowan's consciousness of guilt. The trial judge's decision to admit this evidence does not constitute an abuse of his discretion.

Given McGowan's record, we cannot agree that the judge erred in imposing an extended term; nor can we agree that the sentence was excessive. Although McGowan's concedes that he was eligible for an extended term because of his two prior indictable convictions, he claims that a proper exercise of discretion would have resulted in a denial of the State's motion. The point is without sufficient merit to warrant discussion. McGowan received the presumptive term. Therefore, State v. Natale, 118 N.J. 458 (2005), provides no basis for resentencing. Moreover, we note that McGowan was sentenced under the No Early Release Act, N.J.S.A. 2C:43-7.2, which provides that the parole ineligibility term shall be fixed at eighty-five percent of the sentence imposed. In this case, based on the fifteen year sentence, the parole ineligibility term should have been twelve and one-half years. But the point is not raised by the State by way of a cross-appeal, and thus we will not discuss it further, other than to note that had the judge been aware of this, he might have given a lower sentence.

Affirmed.

 

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A-4682-03T4

November 18, 2005