STATE OF NEW JERSEY v. SAMUEL CATHCART

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2697-04T42697-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL CATHCART,

Defendant-Appellant.

____________________________________________________________

 

Submitted February 15, 2006 - Decided April 25, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-12-1553 and 03-12-1565.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosuector, on the brief).

PER CURIAM

Defendant, Samuel Cathcart, was charged under Indictment Number 03-12-1553, with second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), third degree possession of a weapon, a knife, for unlawful purpose, N.J.S.A. 2C:39-4d (count two) and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three). Defendant was also charged under Indictment Number 03-12-1565 with fourth degree certain persons not to have weapons, N.J.S.A. 2C:39-7a. Following a trial, the jury found defendant not guilty on count one of second degree aggravated assault, but guilty of the lesser included offense of third degree aggravated assault under N.J.S.A. 2C:12-1b(7). The jury found defendant not guilty of counts two and three. In spite of its determination that defendant was not guilty of the weapon offenses, the same jury determined in the separate trial of the bifurcated certain persons charge that defendant was guilty as a convicted felon in possession of a weapon.

At the sentencing hearing, the court imposed on Indictment Number 03-12-1553, aggravated assault, a term of five years in prison, of which two and one-half years is to be served without eligibility for parole. On Indictment Number 03-12-1565, certain persons not to have weapons, defendant was sentenced to a consecutive term of eighteen months in prison, with nine months of ineligibility for parole.

The State's proofs established the following facts. On September 19, 2003, sixteen-year-old C.K. was in New Brunswick visiting his cousin, Maurice. Maurice introduced him to defendant, nicknamed "Self," and two other men, Brian Williams and Aaron Brister, who lived on Fulton Street in New Brunswick. Defendant, Williams and Brister were all approximately thirty years old.

At about 10:00 p.m., Maurice's mother, Donna, telephoned C.K.'s mother, Monique, and told her that Christopher had bruises on his arm and was riding around with a thirty-year-old man named "Self." Donna also told Monique that C.K. had been hanging out with "Self" on Fulton Street. Monique and C.K.'s father, Charles, drove to New Brunswick that night from their home in Somerset to confront "Self" and to investigate what their son had been doing and to take him home.

Monique knocked on the door and a man answered. Monique asked to speak to "Self." Defendant then stepped out. Monique asked defendant why her son was bruised and why defendant was riding around with a sixteen-year-old boy. When defendant explained that C.K. had asked him for boxing lessons, Monique became angry. The conversation became intense as Monique poked defendant in the chest, objecting to him spending time with her sixteen-year-old son. When it appeared defendant was going to hit Monique, Charles, who had been standing nearby, intervened by stepping between the two. At which point, defendant struck Charles in the chin and in the abdomen.

At first, neither Monique nor Charles realized that he had been stabbed. They drove to Monique's brother's house a few blocks away and discovered that Charles was bleeding. They also found defendant's knife embedded in Charles' shirt. Charles was rushed to the hospital and admitted to the emergency room as a trauma patient. The surgeon examined him and found two puncture wounds: one on the left side of his neck and the other on the left side of his abdomen. Although the wounds were not life threatening, surgery was performed to treat the wounds. Charles remained in the hospital for a week recovering from his wounds and the surgery, and the wounds resulted in permanent scarring.

Defendant was arrested by the New Brunswick Police on September 20, 2003. Defendant gave a statement regarding the prior night's events. He told the police that C.K.'s mother confronted him and that her "boyfriend then swung a hammer at him" and as the hammer was swung at him, Monique pulled at his shirt. Defendant stated that he pulled out a knife with a three to four inch blade and cut the man across the neck and across the stomach as he tried to avoid the hammer swings.

Defendant makes the following arguments on appeal:

POINT ONE: THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO SUPPORT THE CREDIBILITY OF MR. [K.] BY ADMITTING EVIDENCE THAT HE WAS IN THE MILITARY.

POINT TWO: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW).

POINT THREE: THE DEFENDANT'S ACQUITTAL ON COUNTS TWO AND THREE OF INDICTMENT 03-12-1553 (POSSESSION OF A WEAPON FOR AN UNLAWFUL POSSESSION OF A WEAPON) PRECLUDES HIS CONVICTION FOR POSSESSION OF A WEAPON BY A CONVICTED FELON ON INDICTMENT 03-12-1565.

POINT FOUR: THE AGGREGATE CUSTODIAL SENTENCE OF SIX AND ONE-HALF (6 1/2) YEARS WITH A PAROLE INELIGIBILITY PERIOD OF THREE AND ONE-QUARTER (3 1/4) YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

A.: IMPOSITION OF BASE SENTENCES IN EXCESS OF THE THEN EXISTING PRESUMPTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

B.: IMPOSITION OF SENTENCES IN EXCESS OF THE PRESUMPTIVE SENTENCES VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

C.: THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON BY A CONVICTED FELON CONSECUTIVE TO THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT.

D.: THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING MAXIMUM PERIODS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTIONS.

We have considered defendant's arguments in light of the record and applicable law and we find points one, two and three to be without sufficient merit to warrant reversal or remand. As to point four, the State agrees that defendant's sentence should be remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005).

Defendant's argument that the court improperly permitted the State to bolster the credibility of the victim by allowing the victim to testify, over defendant's objection, that he was in the military is without merit. "[R]elevant evidence means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In determining whether evidence is relevant, the inquiry focuses upon "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358, (App. Div. 1990), and "whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting State v. Deatore, 70 N.J. 100, 116 (1976)). However, a determination that "evidence is irrelevant in the sense that it lacks probative value" means that it "does not justify any reasonable inference as to the fact in question." State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985) (quoting McCormick on Evidence, 185 at 544 (3rd ed. 1984)).

Defendant contended in his statement to the police that the victim was the aggressor and was attacking him with a hammer. The State countered by introducing testimony by the victim about his military service to demonstrate that it was unlikely that the victim would have swung a hammer at defendant and missed. In other words, the State contended, and the trial judge accepted, that the victim's military training was relevant to the validity or believability of defendant's contention. That decision is reviewed under an abuse of discretion standard. State v. Morton, 155 N.J. 383, 452 (1998); State v. Marrero, 148 N.J. 469, 505 (1997). We find no abuse of discretion by the trial judge.

Next, defendant contends the prosecutor made improper comments that require this court to grant a new trial. "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The assessment of the alleged misconduct is guided by the following considerations:

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153, 586 A.2d 85 (1991); see also State v. Scherzer, 301 N.J. Super. 363, 433, 694 A.2d 196 (App. Div.) certif. denied, 151 N.J. 466, 700 A.2d 878 (1997). Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Marshall, supra, 123 N.J. at 153, 586 A.2d 85; Ramseur, supra, 106 N.J. at 322-23, 524 A.2d 188; State v. G.S., 278 N.J. Super. 151, 173, 650 A.2d 819 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460, 678 A.2d 1092 (1996); State v. Ribalta, 277 N.J. Super. 277, 294, 649 A.2d 862 (App. Div. 1994) certif. denied, 139 N.J. 442, 655 A.2d 444 (1995). Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323, 524 A.2d 188. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207, 689 A.2d 173 (App. Div.), certif. denied, 150 N.J. 25, 695 A.2d 668 (1997).

[Id. at 83-84.]

At issue here are the following comments by the prosecutor:

As I said, on September 19th 2003, in the evening, in front of . . . Fulton Street, the defendant stabbed Charles [K.], stabbed him under the chin in the neck area, and he stabbed him in the stomach under the rib cage in his abdomen area.

When he did this, he had no other purpose but to try and cause serious bodily injury to the victim, because I would submit to you[,] you don't put a knife this size into the neck or the stomach of another human being unless you're trying to cause serious injury. And when he did that, not once, but twice, there was nothing else in his mind but to hurt Charles [K.].

How do we know this? How do we know that the defendant stabbed Charles [K.]? You've heard the testimony of Charles. He came in and told you he was stabbed. He showed you the scars. He showed you the wounds. You heard the admission by the defendant when he gave a statement to the detective that he had the knife and that he used it against Charles [K.]. And you heard the testimony of the doctor who told you that there [were] puncture wounds, not slashes, not scratches, not cuts, puncture wounds in two places on the victim.

You have the knife. You'll have the bloody tee shirt. You've seen the scars on the victim right here in court, and you'll have the medical records. And there's absolutely nothing in this case to contradict any of that evidence.

. . . .

There's two sides to every story, ladies and gentleman. That's true in this case. There's one side of the story that's backed up by the facts, by the testimony and by the evidence. There's another side of the story that's backed up by nothing. And because of that, you should find defendant guilty of all the charges.

[(emphasis added).]

Our first observation is that defense counsel did not object to the prosecutor's comments at trial. Second, we observe that defendant's statement was before the jury. The prosecutor's reference to uncontroverted evidence referred to the facts that defendant did not dispute, that is, that defendant used a knife against the victim and that the victim suffered wounds, which resulted in permanent scarring. The next comment by the prosecutor referencing "two sides to every story" dealt with evidence presented at trial that supported the State's contention while defendant's assertions of self-defense contained in his statement were not supported by the evidence adduced at trial. In addition, the victim suffered puncture wounds not slashes as defendant contended. Also, defendant's contention that the victim was wielding a hammer was not supported since no hammer was recovered at the scene. We do not accept defendant's characterization that the prosecutor's statement was an impermissible comment on defendant's right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant argues the not guilty verdicts on the counts charging possession of a knife for an unlawful purpose and unlawful possession of the knife preclude the subsequent guilty verdict on the charge of possession of a weapon by a convicted felon. Undoubtedly, the verdicts are inconsistent. However, "[i]nconsistent verdicts, even if illogical, are sustainable if the charge to the jury on all offenses was correct and the evidence supports each of the guilty verdicts." Pressler, Current N.J. Court Rules, comment 1.4 on R. 3:19-1 (2006) (citations omitted). Defendant does not challenge the substance of the charge to the jury and his statement, whose admission he does not dispute, which established that he possessed a knife and that he twice struck the victim with it. Also, defendant stipulated that he was previously convicted of a crime, endangering the welfare of a child. Consequently, defendant's conviction of the certain persons offense was well supported by sufficient credible evidence. Less comprehensible are the favorable jury verdicts on the two weapon counts of Indictment Number 03-12-1553 in the face of defendant's own statement that acknowledged his use of a knife against the victim.

Finally, defendant contends that his sentence to a maximum term for each of his convictions violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), since such sentence exceeded the respective presumptive terms for the crimes of which he was convicted. The State agrees that, in light of the Supreme Court's decision in State v. Natale, 184 N.J. 458, 482 (2005), this matter should be remanded for a reconsideration of defendant's sentence. On remand, the court should consider whether the imposition of a sentence at the maximum of the range is appropriate. The court should not impose the maximum for the third degree aggravated assault solely because it may have disagreed with the jury's decision finding defendant not guilty of the charged second degree offense. Likewise, the court should be careful to articulate clearly the basis for its decision to impose consecutive sentences, if it adheres to that determination. See State v. Miller, 108 N.J. 112, 122 (1987) (holding that a judge's failure to expressly state the reasons for imposition of consecutive sentences may compel a remand for resentencing).

Affirmed, except as to the sentence, which is remanded for further consideration.

 

(continued)

(continued)

12

A-2697-04T4

April 25, 2006