STATE OF NEW JERSEY v. SCOTT L. CAWTHRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5552-03T45552-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT L. CAWTHRON,

Defendant-Appellant.

__________________________________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, No. 99-08-1116.

Yvonne Segars Smith, Public Defender, attorney

for appellant (Roger L. Camacho, Designated Counsel,

of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Adrienne B. Reim, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

An Ocean County Grand Jury returned an indictment charging "Scott L. Cawthorn" with the following offenses: third degree burglary, N.J.S.A. 2C:18-2 (count one); second degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); third degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count three); second degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); second degree possession of controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(4) (counts five through eleven); and fourth degree possession of a radio for the purpose of intercepting emergency communications during the commission or attempted commission of a crime, N.J.S.A. 2C:33-22 (count twelve).

Cawthron moved to dismiss the indictment for undue delay and to suppress the evidence seized from a car for lack of probable cause. After those motions were denied, the case was tried to a jury. At the close of the State's case, Cawthron moved unsuccessfully for acquittal, and the jury found him guilty on all counts of the indictment, except count four, which had been dismissed before trial at the State's request. The State moved for a mandatory extended term of imprisonment under N.J.S.A. 2C:43-6f, and the judge granted the motion, sentencing Cawthron to an aggregate prison term of twenty years with ten years of parole ineligibility. Cawthron appeals, and we affirm the convictions but remand for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005).

I

On August 15, 1997, in Howell Township, the police stopped a car containing Cawthron and his accomplices, Edward Michael Murphy, III, and Frank Lawrence Senibaldi. The stop occurred because the police had a well-founded suspicion that the three men had recently committed a series of burglaries. In fact, before the stop -- which was made necessary when the men left the motel in which they had been staying, after packing the car with a number of large boxes -- the police had already begun preparing an affidavit for a search warrant.

During the search, which took place at the police station to which the car had been towed, the police found extensive evidence of guilt, including thousands of prescription narcotic pills, plastic bottles with prescription liquid narcotics, wire cutters, a flash light, bolt cutters, a hacksaw, two crowbars, a sledgehammer, work gloves, hypodermic syringes, a scanner that contained the radio frequency of the Brick Township Police Department, two two-way radios, an envelope with police radio frequencies, a torn-out piece of Yellow Pages with a list of Ocean County pharmacies, a Parkway information guide which had the address of the Brick Pharmacy handwritten across the front, and the rental agreement for the car.

The search warrant affidavit read in pertinent part as follows:

4. Between the hours of 11:30 PM, August 8, 1997 and 4:48 AM, August 9, 1997, a burglary and theft were committed at the Drum Point Pharmacy, located in Drum Point Plaza in Brick. This affiant was assigned to investigate this crime. The Modus Operandi which relates to this burglary are: the phone wires were severed, the rear door was pried open, and the alarm box inside the store was torn off the wall and disabled. Among the items taken were money, controlled dangerous substances, particularly Darvocet, Dilaudid, Morphine, Codeine, Percocet and Valium.

5. On August 13, 1997, this affiant contacted Detective Henderson of the Manalapan Township Police Department. Manalapan Township had suffered a similar burglary to a pharmacy, in which the following Modus Operandi was used; the rear door was pried open, the telephone and burglar alarm wires were cut prior to entry, and the vehicle utilized was a lease vehicle with Massachusetts registration. Their investigation resulted in the arrest of three persons, two of which are from Lynn, Massachusetts. Further investigation revealed that the suspects had rented a motel room in a nearby town which was used as a basis for their operation. Additionally, Detective Henderson provided the following additional information; There is a police task force in Massachusetts as a result of numerous pharmaceutical burglaries involving the same Modus Operandi as previously described and is believed to be conducted by an organized criminal group with possible affiliations to the outlaw motorcycle gang known as the HELLS ANGELS. Further intelligence revealed that this organized criminal group involved in the burglaries has broken down into small splinter groups, and that these groups are now operating in New Jersey.

6. On August 14, 1997, the Brick Police responded to the Brick Pharmacy located on Route 88 on a report of a suspicious condition. A report was taken by Ptl. Reinhart of the Brick Township Police Department. Subsequently this writer spoke to the complainant, Mario Chiarella, who provided the following information; a white male believed to be in his early 30's, entered the store and requested to use the bathroom. After using the bathroom, the male exited and walked around the store acting suspicious. After purchasing a pack of gum, the suspect left the store. Prior to the suspect leaving the store, Mr. Chiarella exited the store, suspecting something was not right. While outside the store, he noticed a Red Pontiac Grand Am bearing the following plate number: 825YYZ, with the state being either New Hampshire or Massachusetts registration. The vehicle contained a front passenger. He watched a third male walk towards the car and get in the drivers side rear seat. He observed the suspect from the store exit the store and observed Mr. Chiarella. The suspect walked to the pay phone, but did not use it. He instead motioned to the car as he walked onto Edge Street. The male in the rear seat then got into the drivers seat and drove out of the parking lot onto Edge Street, where he picked up the suspect and then left the area.

7. This writer along with other members of the Brick Township Police Department initiated a stationary and roving surveillance of pharmacies in Brick Twp. At approximately 11: 30 PM on August 14, 1997, Det. Waldhelm found an open door at the rear of the Rite Aid Pharmacy located in the Dorado Shopping Center. Further investigation revealed that a burglary had occurred at that location and the following Modus Operandi was utilized: The rear door was pried open, the telephone wires were cut, and inside the rear door the alarm and alarm door had been damaged. Further investigation revealed numerous articles including controlled dangerous substances

were taken. Actual types are pending inventory by the pharmacy.

8. Surveillances were initiated on the area hotels and motels to look for the vehicle described above. Additionally, this writer contacted surrounding towns and asked them to check for the vehicle.

9. At approximately 4: 30 AM on August 15, 1997, Howell Township Police advised that they had the vehicle parked at the Capri Motel on Route 9. Det. Schlueter responded to that location and on foot, confirmed that the vehicle is in fact a 1993 Pontiac Grand Am, color red, bearing Massachusetts registration 825YYZ. It was backed in front of Room 18. Det. Schlueter was advised by Howell Township Police that the car belonged with the people occupying Room #18. The people were described as 3 white males. Detective Schlueter was provided with a copy of the Hotel Guest Registration which showed the room to be rented by SCOTT CAWTHRON, with an address of 36 Newhall St. #1, Lynn, Massachusetts. The slip further indicated that the room was rented on August 14, 1997. Det. Schlueter and other members of the Brick Township Police Department initiated a surveillance on the vehicle.

At approximately 8:35 AM, Det. Frank Field observed the three males exit the room and load large cardboard boxes in the trunk of the vehicle. What appeared to be gym bags were loaded into the rear seat of the car. The occupants of the room appeared to be vacating the premises. Once they exited the premise, they were stopped, by a marked Howell Township Police Car. As a result of the stop, all three occupants identified as SCOTT LOGEN CAWTH[RO]N, EDWARD MICHAEL MURPHY III, AND FRANK LAWRENCE SENIBALDI, were arrested by Howell Township Police for possession of controlled dangerous substances, believed to be methamphetamine. The vehicle was towed to Howell Police HQ and secured pending Search Warrant Approval.

10. It should be noted that FRANK LAWRENCE SENIBALDI, was one of the persons who was arrested in the aforementioned burglary of a pharmacy in Manalapan, and is currently out on bail for that charge.

Based on the aforegoing, my training, experience and education and the information contained in this affidavit, it is this affiant's opinion that, FRANK SENIBALDI, EDWARD MICHAEL MURPHY III, and SCOTT LOGEN CAWTHRON, are involved in the Burglary Theft of the Rite Aid store on August 14, 1997 and that the proceeds of said burglary and theft, as well as burglary tools and other evidence are located within their vehicle, that being a 1993 Pontiac Grand Am, Color Red 4dr, bearing Massachusetts Registration 825YYZ and Vehicle Indentification Number 1G2NE5430PM556597.

The State's trial testimony included most of the information contained in the affidavit. In addition, among other things that need not be detailed, Mr. Chiarella identified Murphy as the suspicious customer who had been in his store; and the nature and street value (about $70,000) of the stolen drugs was established by expert testimony.

Cawthron testified, claiming that he had come from Massachusetts with Senibaldi to pick up a repaired truck and to fix the truck if it broke down on the way back home. Because the truck was not ready, they began looking for a motel. Before finding the motel, Murphy, who was driving the car, stopped at a strip mall and got out. After about fifteen minutes, Cawthron saw Murphy come out of a pharmacy and drove the car over to him and picked him up. The evidence supported the inference that Murphy had just come out of Chiarella's pharmacy. Cawthron admitted registering at the motel, but said he was not feeling well and stayed there while the others went shopping. He became suspicious when the others returned to the motel with work gloves, a sledgehammer, a crowbar, and two-way radios, but he said nothing because Senibaldi had promised to pay him for coming down to help with returning the truck to Massachusetts, and he needed the money. The others left the motel again and returned with bags, then left once more and again returned. Cawthron asserted that the next morning, Senibaldi and Murphy loaded the car while he placed his own duffle bag in the back seat. They took off in the car and were stopped by the police in short order.

II

On appeal, Cawthron offers the following arguments:

POINT I

THE MOTION COURT REVERSIBLY ERRED IN REJECTING CAWTHRON'S MOTION TO SUPPRESS THE CONTRABAND SEIZED IN THE TRUNK OF THE RED PONTIAC AS EVIDENCE AGAINST HIM BECAUSE THE STOP OF THAT VEHICLE WAS ILLEGAL AS BEING WITHOUT A REASONABLE AND ARTICULABLE SUSPICION, CA[W]THRON'S ARREST FOR CONSTRUCTIVE POSSESSION OF A SMALL AMOUNT OF CDS SEIZED DURING A PAT DOWN OF HIS CO-DEFENDANT AND BECAUSE CAWTHRON'S MERE PRESENCE WAS INSUFFICIENT TO ESTABLISH THAT HE HAD EITHER ACTUAL OR CONSTRUCTIVE POSSESSION OF THE CONTRABAND FOUND IN THE TRUNK

(U.S. Const. Amends 4, 6, 14; N.J. Const. (1947) Art. I, Para 10)

POINT II

THE MOTION COURT REVERSIBLY ERRED IN DENYING CAWTHRON'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF A FAILURE TO PROVIDE HIM WITH A SPEEDY TRIAL.

(U.S. Const. Amends 4, 6, 14; N.J. Const. (1947) Art. I, Para 7)

POINT III

THE PROSECUTOR'S OFFICE FAILED TO PROVIDE CAWTHRON TIMELY WITH AN EXCULPATORY STATEMENT OF HIS CO-DEFENDANT THAT CAWTHRON WAS NOT INVOLVED IN THE INCIDENT

(U.S. Const. Amends 6, 14; N.J. Const. (1947) Art. I, Para 10)

POINT IV

THE TRIAL COURT REVERSIBLY ERRED IN DENYING CAWTHRON'S MOTION FOR ACQUITTAL AT THE END OF THE STATE'S CASE.

(U.S. Const., Amend 6; N.J. Const. (1947) Art I, Para. 10)

POINT V

CAWTHRON WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

(U.S. Const. Amend 6; N.J. Const. (1947)

Art I, Para. 10)

POINT VI

CA[W]THRON'S SENTENCES WERE ILLEGAL, EXCESSIVE AND UNCONSTITUTIONAL

(U.S. Const. Amend 6; N.J. Const. (1947)

Art I, Para. 10)

And in a pro se brief, Cawthron also argues that prosecutorial misconduct requires reversal and that he was denied gap time for the period during which he was incarcerated in Massachusetts awaiting trial for robbery.

After carefully considering the record and briefs, we are satisfied that all of the arguments offered for and by Cawthron are without merit, R. 2:11-3(e)(2), with the exception of the need for re-sentencing under Natale, supra. Nonetheless, we add the following comments.

On the motion to suppress, we affirm substantially for the reasons expressed by Judge Turnbach in his thorough and well-reasoned oral opinion delivered on December 2, 2003.

On the order denying dismissal of the indictment, we also affirm substantially for the reasons expressed by Judge Turnbach in his oral opinion of December 2, 2003. We note that Cawthron was released on bail in June 1998, that he was indicted on August 17, 1999, and that the first trial date was set for April 24, 2000. The trial had to be adjourned because on April 13, 2000, Cawthron was arrested in Massachusetts for robbery. Cawthron remained in jail in Massachusetts on that charge until the Spring of 2003 when he was found not guilty and returned to New Jersey. He did not file his motion to dismiss the New Jersey indictment until November 21, 2003. The only substantial delay that occurred here that can be counted against the State was the two years between arrest and indictment, but that period of delay, in the absence of prejudice and a timely motion for a speedy trial, did not warrant dismissal of the indictment, State v. Gaikwad, 349 N.J. Super. 62, 88-89 (App. Div. 2002), especially when Cawthron was represented by counsel at all times. State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002). We note that Cawthron has shown no prejudice arising from the delay that occurred here.

Under Point III, Cawthron argues that he is entitled to a new trial because of the State's failure to provide him with an exculpatory statement. The statement was made on March 18, 1998, by Murphy to the officer who prepared his pre-sentence report, and was apparently included in that report and later described in Cawthron's pre-sentence report. That report reads in pertinent part: "IT SHOULD BE NOTED, ON 3/18/98, CO-DEFT. EDWARD MURPHY STATED TO OFFICER MARY PETTROW, WHO PREPARED HIS PSI REPORT, THAT SCOTT CAWTHRON HAD NO KNOWLEDGE OF THE OFFENSE."

Although Cawthron became aware of Murphy's statement before sentence was imposed, he did not move for a new trial on the ground now raised on appeal; namely, that the State violated its obligation to provide exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Knight, 145 N.J. 233 (1996). Conceding that the plain error rule applies, Cawthron argues that we should grant a new trial because the alleged withholding of Murphy's statement was clearly capable of producing an unjust result.

We cannot reach the legal conclusion suggested by Cawthron on this record for a number of reasons: (1) the statement is hearsay, and Cawthron does not contend that it would be admissible under one of the exceptions to the hearsay rule; (2) we do not know whether Murphy was available as a witness at the time of trial; (3) we do not know whether Murphy would have been called by defense counsel had he been available; (4) Cawthron or his attorney may have known before trial that Murphy would testify to Cawthron's lack of involvement if called and may have decided not to call him as a witness anyway; and (5) we have no ruling on the issue by the trial judge evaluating the impact of such cumulative evidence when considered in relation to the rest of the evidence. However, the issue may be presented by a petition for post-conviction relief.

The trial judge was unquestionably correct in denying the motion for acquittal at the end of the State's case under the principles set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967). Cawthron's argument is based largely on the fact that the boxes of drugs and the tools were in the trunk at the time of the arrest. But the police testimony was that all three men loaded the trunk of the car together. Also, the front of the car contained evidence of guilt; namely, the torn-out piece of Yellow Pages listing area pharmacies, the handwritten address of Chiarella's pharmacy, and the handwritten list of police radio frequencies. Given the quantity of drugs and the additional fact that Cawthron rented the room at the motel, sufficient evidence of guilt was presented beyond his mere presence at the scene of the motel or the arrest. See, e.g., State v. Palacio, 111 N.J. 543, 551-52 (1988).

Cawthron claims that he was denied the effective assistance of counsel. Specifically, he argues this his lawyer should have called as witnesses at the suppression hearing the police officers who stopped the car and should have taken the investigatory steps necessary to obtain Murphy's statement about Cawthron's lack of involvement in the crime. The record contains no facts supporting those contentions. Since these issues involve evidence, if it exists, that lies outside the record, these claims should be submitted in a post-conviction proceeding. State v. Preciose, 129 N.J. 451, 460 (1992).

Although we affirm the convictions, we must remand for re-sentencing. The judge sentenced defendant to more than the presumptive term based in part on aggravating factor 5, "There is a substantial likelihood that the defendant is involved in organized criminal activity." N.J.S.A. 2C:44-1a(5). Since that factor was not decided by a jury, re-sentencing is required. Natale, supra; State v. Abdullah, 184 N.J. 497, 505 (2005). We reject, however, Cawthron's claim to gap time credit for the time spent in jail between his arrest and acquittal in Massachusetts. In re Hinsinger, 180 N.J. Super. 491, 499-500 (App. Div. 1981) (holding that "R. 3:21-8 only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration"); Pressler, Current N.J. Court Rules, comment 1.1 on R. 3:21-8 (2006).

Affirmed in part; reversed in part; and remanded for re-sentencing.

 

The judgment, the notice of appeal and appellant's brief spell defendant's last name as "Cawthron", as does defendant's pro se brief, but the indictment uses "Cawthorn." We will use Cawthron since that is the only name used in the judgment.

Defense counsel's brief argues that "[t]he Howell police never specifically testified that Cawthron himself was seen placing the boxes or gym bags in the trunk of the red Pontiac." We note that Detective Field, a Brick police officer, did testify that he "noticed that three white males were exiting the room and loading boxes and . . . bags into . . . the vehicle in question." The detective then expressly identified Cawthron as one of those men.

(continued)

(continued)

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A-5552-03T4

December 14, 2005