STATE OF NEW JERSEY v. JUNE GORTHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2678-09T2


STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


JUNE GORTHY a/k/a

JUNE GOVERNALE,


Defendant-Appellant.

October 9, 2012


Submitted December 5, 2011 - Decided


Before Judges Parrillo and Alvarez.


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-11-2612.


Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the briefs).


Peter E. Warshaw, Jr., Monmouth County Prosecutor,attorney forrespondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the briefs).


PER CURIAM

Defendant June Gorthy, also known as June Governale, appeals from a jury verdict finding her not guilty by reason of insanity of fourth-degree stalking, N.J.S.A. 2C:12-10(b). See N.J.S.A. 2C:4-1. She also appeals her convictions on the remaining two counts of the indictment, fourth-degree possession of prohibited weapons, namely, hollow-point bullets, N.J.S.A. 2C:39-3(f)(1), and third-degree unlawful possession of a .22 Ruger handgun, N.J.S.A. 2C:39-5(b). We remand as to the stalking count, but affirm as to the weapons offenses.

After the trial, the judge conducted a Krol1 hearing on the stalking count, pursuant to N.J.S.A. 2C:4-8, during which expert testimony and a report were submitted. The judge concluded that defendant could not be released "without supervision or conditions without posing a danger to the community and to herself," and therefore ordered her "as a person civilly committed" to a mental health facility approved by the Commissioner of Human Services to receive treatment, not to exceed eighteen months. See N.J.S.A. 2C:4-8(b)(3). On that same date, September 30, 2009, the court imposed two concurrent five-year terms of probation on the weapons counts, subject to defendant having no contact with the stalking victim or her family. At that juncture, because of defendant's several arrests and eventual incarceration while awaiting trial, she had accumulated 1215 days of jail credit.

At the conclusion of the pretrial competency hearing, having found defendant competent to stand trial, the judge also concluded that she could not "voluntarily, intelligently and knowingly waive" the defense of not guilty by reason of insanity on the stalking count because defendant's expert opined that defendant's beliefs about the victim were delusional. He overruled defendant's vigorous objection because she could be "incarcerated into a hospital" to being compelled to present a not guilty by reason of insanity defense. Defendant also objected based on the irrefutable fact that even if convicted of all the charges, she had accumulated such substantial credits that additional incarceration was unlikely. Additionally, she was concerned about the stigma that might result from such an acquittal. Defendant instead wished to present to the jury her claim that she had been invited to New Jersey by the victim and that their consensual relationship constituted a defense to the stalking charge.

We glean the following facts from the record, noting that the indictment alleges that the stalking occurred between July 1, 2002 and May 31, 2006. Defendant met the victim, C.L., in 1998 while attending a workshop on "Healing Trauma" at Esalen Institute in California. C.L. is a licensed marriage and family therapist in New Jersey and was one of the two presenters at that workshop. Defendant attended a second seminar, in which C.L. was involved, in November 1999. In violation of Esalen's protocols, she asked C.L. personal questions. Afterwards,defendant began to attempt to communicate with the victim, who wrote to defendant once that she wanted no contact with her and that defendant should obtain professional help. Because defendant persisted, C.L. took significant steps to conceal her whereabouts, including removing her address from her business cards and her number from the phone directory.

Sometime in very early July 2002 defendant left her home in Colorado, and drove a truck and horse trailer to New Jersey. On July 8, 2002, defendant left a message on C.L.'s answering machine indicating she "was in town." The following day, C.L. found a note from defendant taped to her office door. C.L. immediately contacted the Manasquan Police Department.

On July 10, 2002, C.L. was notified that defendant was taken into custody, having been located that day seated on the floor in front of the victim's office door. C.L. was also informed by police that they had seized an axe, guns, knives, and ammunition from defendant's vehicle.

Officer Donald Scott Clayton of the Manasquan Police Department, the arresting officer, testified that on that date when he encountered defendant at C.L.'s office, she claimed she had become friendly with the victim while attending seminars in California. When she could not produce either the victim's home phone number or home address, however, the officer requested that she produce identification. When defendant stood up, the officer asked if she had any weapons, and she handed over a folded buck knife that hung from a sheath on her belt. After Officer Clayton confirmed telephonically that the victim wanted no contact with defendant, he obtained defendant's permission to search her truck. In it he found a .22 Ruger handgun in a duffle bag on the front seat and five rounds of .22 caliber ammunition in a small white envelope in the driver's side door well. Officer Clayton also seized the following items from defendant's horse trailer, in which her personal belongings were stored: a 30-30 rifle wrapped in bubble wrap, four more handguns and several hundred rounds of ammunition, .22 caliber and 9 mm caliber ammunition in the pouches of a saddlebag, a long-handled axe, a hunting knife in a sheath, 9 mm Ruger hollow-point bullets, .25 automatic ammunition, and .45 caliber ammunition. Defendant was charged only with possession of the hollow-nosed bullets and the .22 Ruger handgun.

Despite a no-contact order, defendant left a voicemail message on C.L.'s phone in December 2002, resulting in an additional arrest. In April 2006, defendant resumed leaving messages on the victim's office voicemail.2

On May 9, 2006, Officer Keith Smith responded to a report that a woman was yelling at patrons as they walked in and out of a local post office. When Officer Smith asked the person for her name, defendant gave him C.L.'s last name and C.L.'s home address.

Detective Sergeant Jacob Kleinknecht, who also responded to the scene during the post office incident, had participated in the 2002 investigation. He knew that in April 2006, the victim had reported that defendant was again attempting to contact her.

Detective Kleinknecht explained to the jury that when he encountered defendant at the post office, he happened to have with him the number from which the suspicious calls made to C.L. in April 2006 originated. While standing in front of defendant, he dialed that number, and heard defendant's cell phone ring. He asked her to remove it, and saw that the call's origination point was his number. When Detective Kleinknecht "confront[ed]" defendant about this, she did not respond, and was rearrested.

During the trial, defendant testified on her own behalf. She said that C.L. wanted a relationship with her, but was denying it in order to protect her career. With regard to the weapons found in the vehicles, defendant said merely that all were legal to possess in Colorado and that she had no intention of harming anyone. She had been involved in the sport of target shooting since childhood.

Defendant's expert, Kenneth J. Weiss, M.D., explained to the jury that defendant suffered from "schizoaffective disorder," in other words, that "beyond the mood swings" symptomatic of bipolar disease, she also suffered from "persistent delusions." He opined that her "hybrid condition" caused her to genuinely lack understanding that her conduct towards the victim was threatening, because she had no ability to perceive the difference between right and wrong with regard to C.L. See N.J.S.A. 2C:4-1 ("A person is not criminally responsible for conduct . . . if . . . he did not know what he was doing was wrong."). Dr. Weiss's opinion was limited to the stalking charge.

On appeal, defendant raises the following points:

POINT I

IT WAS ERROR FOR THE TRIAL COURT TO ALLOW AN INSANITY DEFENSE OVER THE OBJECTION OF DEFENDANT. (Not raised below)


POINT II

THE ADMISSION OF TESTIMONY REGARDING DEFENDANT'S POSSESSION OF UNCHARGED FIREARMS FOUND IN A LOCKED GUN CASE IN HER VEHICLE WAS IMPROPER OTHER CRIME EVIDENCE WHICH DENIED HER A FAIR TRIAL


POINT III

CERTAIN QUESTIONING BY THE PROSECUTOR AND IMPROPER COMMENTS MADE DURING HIS SUMMATION DENIED DEFENDANT A FAIR TRIAL. (Not raised below)


POINT IV

THE COURT'S ERRONEOUS RESPONSES TO QUESTIONS OF THE JURY DURING DELIBERATIONS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not raised below.)


POINT V3

THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND UNDULY PUNITIVE AND SHOULD BE MODIFIED AND REDUCED. (Not Raised below.)


POINT V[I]

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL (Not raised below)


I

We first address defendant's contention, with which we agree, that the court erred by directing the jury, over defendant's objection, to simultaneously consider the insanity defense along with other defense theories. Our discussion is informed by State v. Handy, 421 N.J. Super. 559 (App. Div. 2011), certif. granted, 209 N.J. 99 (2012).

In Handy, we concluded that a defendant found competent to stand trial

who wishes to present a substantive defense based upon at least some evidence, or who otherwise wishes to put the State to its burden of proving the elements of the offense beyond a reasonable doubt, should not be required to first submit to a trial restricted to the issue of insanity.


[Handy, supra, 421 N.J. Super. at 565.]


The defendant in Handy was adjudged to be competent despite suffering from paranoid delusions. Id. at 571-72. While the psychiatric experts in Handy acknowledged that defendant's self-defense explanation for the homicide with which he was charged was possible, they also noted the persistence of his paranoid delusions. Id. at 572-73.

Relying upon State v. Khan, 175 N.J. Super. 72 (App. Div. 1980), the trial court in Handy ruled, over defendant's objection, that he was not guilty by reason of insanity because he was "floridly psychotic at the time of this incident." Id. at 578. Although defendant understood the nature and quality of the conduct which resulted in the criminal charges, he did not know what he did was wrong. See id. at 578. We reversed, finding that a competent defendant should not be compelled to accept an acquittal by reason of insanity unless his substantive defenses are addressed first. Id. at 608-09. We concluded that a defendant is entitled to an initial trial at which he may present his or her substantive defenses. If he or she is convicted, then a second trial is to be conducted at which the jury would be presented with the insanity defense. Id. at 612-13. In accord with Handy, since this defendant was found competent to stand trial, she was seemingly competent to make a knowing, voluntary election to pursue her substantive defenses at an initial trial, without asking the jury to simultaneously consider an alternative, inconsistent defense of insanity. Of course, only if convicted, might she be compelled to undergo a separate proceeding at which to present the not guilty by insanity defense.

There is, obviously, a significant difference between Handy and this case. In Handy, the judge conducted a bench trial. In this case, the jury was presented with the insanity defense as well as alternate defense theories, albeit during one proceeding. The outcome was the same, however, as that in Handy. Once they heard defendant's own expert's unrefuted opinion that defendant could not distinguish between right and wrong as to C.L., along with the court's final instruction, it no doubt became a compelling basis for a verdict of not guilty by reason of insanity. In our view, the single presentation of all defense theories in one trial effectively deprived this defendant of the opportunity to have the jury fairly and impartially consider her other defenses on their own merit. Her mental health diagnosis was the dominant theme on the stalking count. In theory the jury was not restricted to an insanity defense but in actuality, it was virtually a foregone conclusion.

Therefore, on count one, we remand the matter to the trial court for further proceedings consistent with this opinion. Assuming defendant is again found competent to stand trial, and opts to waive her right to claim double jeopardy if retried, she may proceed in the bifurcated manner described in Handy. She shall be afforded a new trial on the merits, and "if necessary, a second trial before the same jury will proceed on any asserted insanity defense." Handy, supra, 421 N.J. Super. at 612.

II

Defendant's second point on appeal is that, on the stalking charge, the evidence presented to the jury regarding her possession of weapons other than those with which she was actually charged, was "grossly prejudicial and denied [her] a fair trial." Because defendant was found not guilty by reason of insanity, in other words, acquitted, it cannot be reasonably contended that the testimony prejudiced the outcome. But since the issue may arise again, in the event defendant opts for a retrial of the matter, we briefly address it.

Relevant evidence is that which "ha[s] a tendency in reason to prove or disprove [a] fact of consequence to the determination of the action." N.J.R.E. 401. "[A]ll relevant evidence is admissible unless it is excluded by a specific rule." N.J.R.E. 402, quoted in State v. Wilson, 135 N.J. 4, 13 (1994).

The trial judge ruled, after conducting an N.J.R.E. 104 hearing on the admissibility of evidence regarding the uncharged weapons, that it was relevant to the stalking charge. He concluded that the probative value outweighed the potential for prejudice, thereby making it admissible. See N.J.R.E. 403. He explained:

the defendant engaged in [a] course of conduct . . . [which] would cause a reasonable person to be in fear of bodily injury or death . . . . C.L. was told of all the weapons that were recovered from the defendant . . . . It is relevant and material to that particular element of the offense, because certainly the number of weapons, the type of weapons that were recovered would add or subtract to what a reasonable person would, the extent to which a reasonable person would be put in fear of bodily injury or death.

The judge granted the defense request that the officer would only testify as to the items, but that neither photos nor the actual weapons would be admitted. He did admit the actual handgun that corresponded with the hollow-point bullets and some bullets that corresponded with the .22 Ruger handgun.

The stalking statute provides that a person is guilty if the actor "purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety . . . or suffer other emotional distress." During the trial, defense counsel acknowledged that testimony regarding the uncharged weapons was relevant to "whether a reasonable person[,] specifically the victim, would have been afraid." Defendant now argues, however, that the evidence should be excluded pursuant to N.J.R.E. 403 and/or 404(b).

"[R]elevant evidence may be excluded if the probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a); see State v. Long, 173 N.J. 138, 163-64 (2002). We agree with the trial judge's ruling that the victim's knowledge of the sheer number of weapons and ammunition that defendant possessed would affect her level of fear. Knowing that defendant possessed a .22 Ruger handgun and hollow-point bullets is quite different from knowing that, in addition, her vehicle contained a 30-30 rifle, four additional handguns, hundreds of rounds of ammunition, a hunting knife, and an axe. The probative value was therefore substantial and exceeded the potential for prejudice.

Moreover, defendant's possession of the uncharged weapons was not subject to the strictures of N.J.R.E. 404(b), as defendant now urges. Indeed, it may be considered "intrinsic evidence" within the meaning of State v. Rose, 206 N.J. 141, 177 (2011). Evidence which proves a charged offense such as the stalking in this case, where the victim's knowledge of defendant's armory established the basis for her heightened fear of defendant is inappropriate for N.J.R.E. 404(b) consideration. See Rose, supra, 206 N.J. at 180.

The evidence is relevant, its probative value not outweighed by its potential for prejudice, and is intrinsic to the crime of stalking. If the matter is retried, the State may seek to introduce it again. Moreover, the trial court did not abuse its discretion in admitting the evidence at defendant's trial.

III

a.

Defendant also contends that the prosecutor's questioning regarding "prearrest silence" denied her a fair trial on the issue of stalking. Again, because the matter may well be retried, even though defendant was found not guilty by reason of insanity on the stalking charge, we address the issue.

Detective Kleinknecht told the jury that he "confronted" defendant about her cell phone ringing when he dialed the number found on C.L.'s caller ID and that she did not respond. Arguably, this was cumulative given that Detective Kleinknecht heard defendant's phone ring when he dialed the suspicious caller's number.

Indisputably, when the State attempts to use a defendant's silence "at or near" the time of arrest as evidence of guilt, the privilege against self-incrimination is violated. State v. Muhammad, 182 N.J. 551, 564 (2005). Therefore this evidence should be excluded during any future proceeding, although its admission here was harmless in light of the other proofs. It was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.

b.

In summation, the prosecutor stated that defendant's possession of a gun "gives fear, it brings about death, it can kill, it can maim, it can destroy families." Defendant now contends that the statement constituted prosecutorial misconduct.

We are mindful that prosecutors are "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). The State is entitled to summarize its case "graphically and forcefully," State v. Pratt, 226 N.J. Super. 307, 323 (App. Div.), certif. denied, 114 N.J. 314 (1988). But prosecutors must refrain from "inflammatory and highly emotional" appeals having the capacity to divert the jury from a fair consideration of the evidence of guilt. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993).

In order to constitute a ground for reversal of a criminal conviction, a prosecutor's misconduct must be "so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). It cannot be fairly disputed that the prosecutor's statements regarding the potential effects of guns on society were intended to impassion the jury. These fleeting comments, however, were not so egregious that they deprived defendant of a fair trial on the weapons offenses, particularly in light of their nature, that they are possessory offenses, which defendant did not even deny. The comments were not so prejudicial as to warrant reversal of the conviction. If error, it was harmless. See R. 2:10-2.

IV

During jury deliberations, the jury posed the following questions: (1) when did defendant enter New Jersey and when was she searched?; (2) "[i]s there a grace period to register guns in New Jersey?;" and (3) "[d]oes knowingly and willingly clause [sic] apply to counts two and three?" Defendant contends the judge's responses were not sufficient and prejudiced the outcome.

"[A]dequate and understandable instructions" are essential to a fair trial. State v. Gartland, 149 N.J. 456, 475 (1997). When juries pose questions, the trial court "is obligated to clear the confusion." State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 194 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). Judges are expected to read jury questions "with care to determine precisely what help is needed." State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995) (quoting State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994)). The judge's responses were not objected to by counsel. Accordingly, we review the claims under the plain error standard. See R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

When responding to the first question, the judge limited himself to the evidence presented to the jury. Hence he reiterated the limited information developed during the trial on that point that C.L. found a message on her answering machine from defendant regarding her arrival in New Jersey on July 8, 2002, and that defendant's vehicle was searched here on July 10, 2002.

As to the second question, the judge reread the statute, which plainly states that a person having a handgun in their possession without obtaining a permit to carry is guilty of a crime. N.J.S.A. 2C:39-5(b). Nothing else was presented during the trial with regard to this question.

The third question the judge answered by rereading the jury instruction with regard to the weapons charges, including that the requisite mental state, knowingly, was required for conviction.

The judge's replies to all three questions were reasonable given the proofs in the record. They did not constitute plain error which prejudiced the outcome.

V

Defendant also contends that the sentence was excessive. The maximum term of Krol commitment on the stalking charge was eighteen months. The term of a Krol commitment cannot exceed the maximum term of incarceration for the offense for which it is imposed, see N.J.S.A. 2C:4-8(b)(3), but is discretionary within that range. Defendant objects to the imposition of the maximum possible Krol term without identifying any error of law or fact or abuse of discretion. This contention therefore does not warrant further discussion. See R. 2:11-3(e)(2).

Defendant also objects to the imposition of a period of five years probation on the weapons offenses, which she asserts was excessive in light of her credits for time served. The two concepts, however, are unrelated. A defendant's accumulated jail credit offsets custodial time, but none was imposed in this case. Because of defendant's difficulty in complying with the no-contact orders over a number of years, a lengthy term of probation was warranted.

In any event, we review sentencing decisions not to substitute our judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 608 (2010). When a trial court's findings of aggravating and mitigating factors are supported by the record, the sentencing overall complies with the Criminal Code, and the individual's sentence does not shock our conscience, the sentence will be upheld. Ibid.

Modification of a sentence is appropriate only if a judge has abused his or her broad discretion and imposed a sentence that "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Where a sentence is permitted by statute and is not unduly punitive, the trial court has properly exercised its discretion and the decision should be upheld. Ibid.; State v. Morton, 292 N.J. Super. 92, 99 (App. Div. 1996). This sentence does not shock our conscience, was supported by the record, and complies overall with the Criminal Code. We do not consider it to be excessive.

VI

Defendant's final point is that the aggregate errors denied her a fair trial. Isolated errors that in and of themselves might be otherwise harmless, in conjunction with each other, "can cast sufficient doubt upon the verdict to warrant reversal." State v. Reddish, 181 N.J. 553, 615 (2004). But we do not consider any of the asserted errors to have any basis but for the imposition of a not guilty by reason of insanity over defendant's objection. This argument lacks merit.

Remanded as to the first count; affirmed as to the remaining counts and defendant's sentence.

1 State v. Krol, 68 N.J. 236 (1975).

2 The record is not clear as to defendant's bail status in the intervening years.

3 This point was omitted from the table of contents but included in defendant's brief on appeal.