STATE OF NEW JERSEY v. KEVIN A. MATTHEWS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2930-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN A. MATTHEWS,

Defendant-Appellant.

____________________________

May 26, 2011

Submitted May 4, 2011 - Decided
 

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-11-1171.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2b. Defendant argues the judge improperly limited defense counsel's remarks during summation and that he received an excessive sentence. We affirm.

New Jersey State Troopers Erin Miccula and Jamie Ablett observed defendant speeding, engaged their overhead lights, and pulled defendant over to the side of the Garden State Parkway. As both troopers approached defendant's car from the passenger side, Trooper Ablett noticed several items on the front passenger seat and asked defendant about them. Defendant then grabbed a sandwich bag containing several wax packages and ingested it. Trooper Ablett walked to the driver side of the car and struggled with defendant to have him exit. Defendant then suddenly drove away, almost seriously injuring Trooper Ablett. The troopers pursued defendant until he eventually stopped the car. Defendant was upset and apologized for speeding and driving away. He was arrested and read his Miranda1 rights.

When defendant was brought to the police station he was read his Miranda rights again and admitted to eluding the troopers. Defendant offered several explanations for the contents of the sandwich bag. Initially, he stated that the bag contained candy, and then identified it as sugar. Thereafter, he explained that he did not know the contents of the bag and that he found the bag at a tollbooth. He also stated that the contents were missing because the wind tore them out of his car.

Defendant was tried before Judge James J. Morley and a jury on September 10, 15, 17, and 18, 2009. During summation, defense counsel argued defendant's admission at the police station to eluding was not credible because he was upset and emotionally distraught when he was arrested. He stated:

I suggest to you[,] ladies and gentlemen, that it's very credible to believe that someone in those circumstances might be willing to just about apologize for anything or be very agreeable under those circumstances.

The State objected to defense counsel's characterization of defendant. Judge Morley sustained the objection because there was nothing in the record to support the inferences suggested by defense counsel. The judge's curative instruction to the jury stated:

Ladies and gentlemen, during [defense counsel's] summation, there were statements made concerning his - asking you to draw certain conclusions about [what] the defendant's demeanor may have been when he returned to . . . the state police station. You have before you evidence of the defendant's conduct out on the parkway after the stop. You have no evidence before you of what his demeanor or his presentation was when he was back at the station. So you have to rely on what you know of what was occurring at the scene and you may not assume what his conduct or his demeanor was back at the [police station] because you just have no information about what was going on at the [police station] when he returned.

The jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-2b; not guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and not guilty of fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1). Because defendant had six prior indictable convictions, Judge Morley sentenced defendant to an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to a thirteen-year term with five years of parole ineligibility.

On appeal, defendant raises the following points:

POINT I

THE COURT PROVIDED THE JURY AN IMPROPER CURATIVE INSTRUCTION THAT PRECLUDED THEM FROM CONSIDERATION OF THE DEFENDANT'S EMOTIONAL DEMEANOR BASED ON HIS POST-ARREST CONDUCT. (Argued Below)

POINT II

THE SENTENCE RECEIVED BY THE DEFENDANT WAS ERRONEOUS AND EXCESSIVE.

Defendant argues the jury should have been allowed to infer that defendant's demeanor at the police station was similar to his demeanor at the time of his arrest, and that he, therefore, was likely "to be very agreeable" in admitting he eluded the troopers. Defendant's argument is without merit.

Defense counsel is afforded wide latitude when making closing arguments. State v. Jones, 308 N.J. Super. 174, 184-85 (App. Div. 1998). "'[C]omment[s] [, however,] must be restrained within the facts shown or reasonably suggested by the evidence adduced.'" State v. Feaster, 156 N.J. 1, 97 (1998) (quoting State v. Bogen, 13 N.J. 137, 140 (1953)). Therefore, "it is proper for a trial court to preclude references in closing arguments to matters that have no basis in the evidence." Jones, supra, 308 N.J. Super. at 185.

Here, the record discloses, as did the judge's curative instruction, that there was no evidence introduced at trial of defendant's demeanor at the police station following his arrest. Further, defendant's full unredacted statement reveals that he gave several inconsistent answers when attempting to explain the contents of the sandwich bag that he swallowed and was anything but agreeable or apologetic. Thus, the trial judge's curative instruction properly prohibited references "to matters that have no basis in the evidence."

Next, defendant argues that the judge imposed an excessive sentence by improperly applying aggravating factors, N.J.S.A. 2C:44-1a(3) and (9); and ignored mitigating factor, N.J.S.A. 2C:44-1b(11).

Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009); State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. We are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65). A sentence will be found improper when it "shock[s] the judicial conscience." Roth, supra, 95 N.J. at 365.

Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines, and the record supports the judge's findings of aggravating factors set forth in N.J.S.A. 2C:44-1a(3) and (9), and his finding that they substantially outweighed the non-existent mitigating factors.

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).