STATE OF NEW JERSEY v. EDWARD MCEWEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6444-04T46444-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD McEWEN, IV,

Defendant-Appellant.

__________________________________

 

Submitted March 19, 2007 - Decided April 13, 2007

Before Judges Lintner, S.L. Reisner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

04-09-0632.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant, Edward McEwen, was convicted of two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (Counts One and Two), and fourth-degree resisting arrest as a lesser-included offense of third-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Three). The trial judge merged the resisting arrest conviction with the Count One aggravated assault conviction and sentenced defendant to two concurrent five-year terms with two years of parole ineligibility on the first and second count convictions. Defendant appeals and we affirm the judgment of conviction but remand for resentencing in accordance with State v. Natale (Natale II), 184 N.J. 458, 466 (2005), for a determination whether a lesser sentence would be imposed in the absence of the presumptive term.

On May 7, 2004, Christopher Schoonhoven, age twenty-four, and his two roommates held a barbeque at their apartment at 57 J. Russell Smith Road to celebrate their upcoming graduation from The College of New Jersey. Although only friends were invited to the barbeque, they did not turn away neighbors who came to the party.

Around 6:00 p.m. that evening, Schoonhoven noticed a black male, later identified as defendant, with facial hair and long dreadlocks, wearing sweatpants and a long-sleeved shirt, standing in the backyard of his apartment. Schoonhoven assumed defendant was a neighbor he had not previously met. Schoonhoven approached defendant, introduced himself, and offered him food and beer. According to Schoonhoven, defendant "was just pretty much hanging around" and was "nice to everybody else that was there . . . just having a drink[,] talking with other people who were in the party."

Later in the evening, Schoonhoven observed defendant enter the apartment and go upstairs to the second floor. Schoonhoven followed and found defendant in the bathroom "taking some of the magazines." Schoonhoven asked defendant what he was doing and defendant responded, "be cool" and "be quiet, don't tell anyone." Schoonhoven asked defendant to leave. Defendant became visibly upset, "breathing . . . like he's a little mad," and putting his hands by his head. Defendant, however, complied with Schoonhoven's request and left the residence.

Schoonhoven then walked down the street and observed defendant walking back toward the house, wearing a backpack, and carrying a five-inch long, white-handled knife. Defendant was also holding some balloons that Schoonhoven had seen on a neighbor's mailbox. Schoonhoven told everyone at the party to go inside, while he remained outside to keep an eye on defendant. Using his cellular phone, Schoonhoven called the police. Before the police arrived, Schoonhoven observed defendant enter the vehicle of a party guest and take several CDs out of the car. Defendant then walked down the road and Schoonhoven followed. Schoonhoven saw him enter the front door of 18 J. Russell Smith Road. While Schoonhoven waited for the police to arrive, he saw defendant standing inside the doorway of 18 J. Russell Smith Road.

Officer Kelly Longo of the Lawrence Township Police Department was the first to arrive on the scene. She was in full uniform and drove a marked police car. As Longo pulled onto the road, she saw Schoonhoven waving at the police car. Longo pulled over and Schoonhoven related what he had seen. At that time, defendant exited the residence at 18 J. Russell Smith Road and began walking north up the street.

Officer Robert Loveless of the Lawrence Township Police Department arrived to assist Longo. He was also in full uniform and driving a marked police car. Both officers approached defendant. They asked him to stop, and he complied. The officers advised defendant that he fit the description of a man reported to be carrying a knife. Defendant responded that he did have a knife, but that he had been pruning the bushes in front of 18 J. Russell Smith Road, where he was living, and had left the knife there.

Defendant was wearing a pair of white work gloves with the plastic hanger tag still attached. The officers asked defendant to take off the gloves so they could conduct a pat-down search to see if he was carrying any weapons. Defendant took off one glove and put it on the ground. He then took off the second glove, threw it toward Loveless, and charged the officer. As defendant ran toward Loveless and pushed him out of the way, Loveless turned and tried to grab defendant. A struggle ensued.

According to Loveless, as soon as he turned to grab defendant, defendant hit him several times on the left side of his head. Longo ran over and attempted to pull defendant off of Loveless by grabbing his dreadlocks; however, the dreadlocks tore. Defendant turned toward Longo and struck her in the face. He knocked her to the ground and continued hitting her in the head. When Longo attempted to get up, defendant pushed her back down and stomped his foot into her chest approximately three or four times.

Loveless drew his sidearm and ordered defendant to let Longo go. At first, defendant, who was dragging Longo across the ground, did not react. Loveless repeated his command two more times, after which defendant released Longo and began running down the street.

Both officers gave chase with their sidearms drawn. As they chased defendant, Loveless used his radio to call for more backup, while Longo yelled to defendant to "stop and get down." Defendant continued to run until he reached an area with a high fence. He turned toward the officers and took a fighting stance. Loveless told defendant to lie down on the ground, but he did not comply and remained in the fighting stance. Loveless attempted to spray defendant with pepper spray. However, the canister malfunctioned and the spray never made contact. While Loveless used his radio to communicate with backup units, Longo continued to order defendant to get on the ground. Defendant eventually complied and the officers maintained cover over him while waiting for the arrival of backup. Officers Chianese, Miller, and Sergeant Doldy arrived to assist Longo and Loveless. Chianese assisted them in handcuffing defendant in order to take him into custody. Defendant kept his hands beneath his stomach and refused to place them behind his back. Defendant continued to struggle as Loveless and Chianese moved his hands behind his back to handcuff him. Longo held the top half of defendant's head to prevent him from moving while he was being handcuffed, with her knee on his back and her hands holding his head. After defendant was handcuffed, the officers searched defendant for weapons, while defendant continued to kick and move his legs around. Doldy used flex cuffs to hold defendant's legs together at the ankles and prevent him from kicking. Defendant then appeared to fall asleep on the grass. The officers checked defendant to be sure that he was not injured or impaired, and determined that he was all right. They woke defendant up, placed him in a police car, and transported him to headquarters.

Longo was treated for injuries to her left eye, left cheekbone, the bridge of her nose and her chest. Loveless was treated for cuts and scrapes to his face.

Detective William Chester arrived at the scene and met with Schoonhoven, who described what he had witnessed. Schoonhoven accompanied Chester to the door of 18 J. Russell Smith Road, where they looked through the door and saw the magazines and CDs that were taken. Chester went into the residence and retrieved the items, and returned them to Schoonhoven.

At headquarters, Detective Chester asked defendant if he needed any medical attention. Defendant responded that he did not and that he had not taken any medication or narcotics that day. Detective Chester read defendant his Miranda rights, after which defendant stated that he did not remember what had happened. On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE JURY ON SELF-DEFENSE, THEREBY DENYING MR. MCEWEN HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

POINT II

THE TRIAL COURT COMMITTED ERROR IN ALLOWING THE JURY TO HEAR EVIDENCE OF PRIOR BAD ACTS/OTHER CRIME EVIDENCE BY THE DEFENDANT, WHICH CAUSED UNDUE PREJUDICE TOWARD THE DEFENDANT AND DEPRIVED HIM OF A FAIR TRIAL.

POINT III

THE TRIAL COURT FAILED TO ISSUE A CURATIVE INSTRUCTION AFTER PREJUDICIAL TESTIMONY WAS ELICITED FROM OFFICER LONGO. (Partially Raised Below.)

POINT IV

DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14th AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below.)

POINT V

THE TRIAL COURT'S OMISSION OF ANY INSTRUCTION REGARDING THE JURY'S OBLIGATION TO ASSESS THE CREDIBILITY OF OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY MR. MCEWEN TO THE POLICE DEPRIVED MR. MCEWEN OF DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)

POINT VI

THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING MR. MCEWEN HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below.)

POINT VII

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT VIII

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

POINT IX

THE SENTENCE IMPOSED BY THE COURT VIOLATED MR. MCEWEN'S RIGHTS UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Defendant first argues that the trial court committed error by failing to charge the jury on self-defense. Specifically, he argues that the testimony of Longo and Loveless established a rational basis for a jury to believe that defendant feared for his life or serious physical injury because the officers had their guns drawn when they initially confronted him, and because Longo pulled defendant's hair and had her knee in his back.

Self-defense is defined as:

[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

[N.J.S.A. 2C:3-4a.]

"Self-defense requires an actual, honest, reasonable belief by the defendant in the necessity of using force." State v. Burks, 208 N.J. Super. 595, 604 (App. Div. 1986). Also, "the force against which a defendant uses self-defense must be unlawful." Ibid.

A trial judge must charge the jury on self-defense "if there exists evidence in either the State's or the defendant's case sufficient to provide a 'rational basis' for [its] applicability." State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.) (quoting State v. Martinez, 229 N.J. Super. 593, 600 (1989)), certif. denied, 144 N.J. 589 (1996). When a defendant requests a self-defense jury instruction, the trial court must "examine the evidence presented by both the State and defendant to determine whether a rational basis existed in the evidentiary record to require the requested charge." State v. Moore, 158 N.J. 292, 310 (1999).

A person may not resist an arrest by one he knows to be a police officer, whether the arrest is legal or illegal. State v. Mulvihill, 57 N.J. 151, 156 (1970). "If the [person] resists the arrest, the officer is not only justified in but has the duty of employing such force as is reasonably necessary to overcome the resistance and accomplish the arrest." Ibid. "[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them . . . ." Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443, 456 (1989).

If a defendant uses greater force in protecting himself against an officer's unlawful force than reasonably appears to be necessary, the defendant becomes the aggressor and forfeits the right to claim self-defense. Mulvihill, supra, 57 N.J. at 157. Also, if the defendant "knows that if he desists from his physically defensive measures and submits to arrest the officer's unlawfully excessive force would cease, the arrestee must desist or lose his privilege of self-defense." Ibid.

Rejecting defendant's request for the jury charge on self-defense, the trial judge noted:

Now, while [defense counsel] states that there was testimony by Officer Longo that she did pull the defendant's hair, that she had her knee on his back as they were trying to keep him on the ground in order to effect the arrest, I do find that that occurred after the testimony, after it was alleged that the defendant approached Officer Loveless, and then Officer Longo, and as [the prosecutor] stated, it was the defendant who was the aggressor, as it was

found the defendant was the aggressor in State v. Rivers.

The judge correctly found that there was not a rational basis given to charge self-defense.

Defendant next argues the trial judge erred in allowing the jury to hear evidence of prior bad acts by defendant. Specifically, defendant raises the judge's refusal to grant his motion to bar Schoonhoven's testimony referring to stolen magazines and CDs, and the judge's denial of his motion. He also argues that Schoonhoven's testimony, which defendant did not object to, concerning party balloons he believed defendant had cut off a mailbox constitutes inadmissible prior bad acts.

Generally, evidence of other crimes, wrongs, or acts may not be introduced to show that a person is, in general, disposed toward criminal behavior, and, therefore, guilty of committing the crime charged. N.J.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

N.J.R.E. 404(b) "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). "Other crimes" evidence that relates directly to the crimes for which the defendant is on trial is admissible if it "serves to paint a complete picture of the relevant criminal transaction," "furnishes part of the context of the crime," or "is necessary to a full presentation of the case." State v. Martini, 131 N.J. 176, 242 (1993) (internal quotations and citation omitted), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995), overruled in part on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004); see also Cherry, supra, 289 N.J. Super. at 522 (holding that evidence of events that take place during same time frame as crime charged will not be excluded if evidence establishes context of criminal event, explains nature of, or presents full picture of crime to jury). No limiting instruction is necessary when the "other crimes" evidence relates to the res gestae. Martini, supra, 131 N.J. at 242.

Denying defendant's motion to exclude Schoonhoven's testimony about the stolen magazines and CDs, the trial judge reasoned:

[F]rom what the proffer is what the testimony will be, it wasn't that there was just a man with a knife and that's when he called. He talked about following him . . . while he was on his cell phone. I find that it is part of what happened that evening and, therefore, I will allow it. I deny the motion.

The judge instructed the jury as to the limited purpose for which the evidence was admitted:

Now, you have heard testimony in this case that the defendant took the property of another without permission, namely, some magazines and CDs. The defendant has not been charged with any offense relating to the taking of the magazines and the CDs. And you are not to consider any allegations of or any such allegations in your deliberations. The testimony of the taking and recovery of the magazines and CDs was introduced solely for purposes of completeness of the record, and identification of the defendant as the individual who was the subject of Mr. Schoonhoven's initial call to the police.

The trial judge's determination was not error as the challenged evidence was part of the res gestae of the crime. Schoonhoven's account of what happened at the party was necessary for understanding the continuing course of conduct leading up to defendant's confrontation with the police and was necessary to present a full picture of the crime to the jury. The testimony was helpful in explaining to the jury why Schoonhoven called the police and why he followed defendant to the extent that he did. Additionally, the testimony contributed to the identification of defendant, as the CDs and magazines were later recovered from defendant's residence.

Defendant next asserts that the trial judge erred in failing to issue a curative instruction after Longo's testimony that she believed defendant was reaching for her gun when they were struggling. During a pretrial conference, defendant asked that the State not be allowed to have Longo testify that she believed defendant was going to grab her gun during the fight. The State agreed that it would be impermissible for Longo to express an opinion as to what may have been defendant's state of mind. However, the parties agreed that it would be acceptable for her to describe physical actions taken by defendant and to testify that during physical confrontations police officers are trained to move their bodies so that their guns are not accessible.

At trial, during the direct examination of Longo, the following exchange took place:

Q: How? What part of his body did he use to push you back down?

A: His hands and then started to try to hit me. He was holding my shoulder with one hand, trying to hit me with the other, and I was then by that time put the other hand down and put my right hand up to shield the punches.

Q: Okay. What did he do after that?

A: He looked like he was grabbing around, I didn't know exactly where he was going to grab. I felt he was going to grab for my gun. So I put my hands on top of my gun.

[DEFENSE COUNSEL]: Objection, your honor.

. . . .

[PROSECUTOR]: I'll clarify this. Okay.

THE COURT: Objection is sustained.

[PROSECUTOR]: Rephrase the question, Judge.

Q: Okay. Now, Officer Longo, I mean, you can't read this individual's mind; correct?

A: Correct.

Q: Okay. But you do have devices and weapons on your utility belt; correct?

A: Yes.

Q: Are you trained that in physical, close, you know, confrontations, scuffles, it's you're trained to try to make sure that no matter what's going on, you try to blade [sic] your body so that weapons are

away; correct?

A: Correct.

Q: Whether or not anyone is reaching for them or not?

A: Correct.

A defendant is entitled to a fair trial, but not a perfect one. State v. Feaster, 156 N.J. 1, 84 (1998), cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). In reviewing evidence, a court must look at whether the error was so prejudicial that it clearly had the capacity to produce an unjust result and, therefore, denied the defendant the right to a fair trial. See State v. Vandeweaghe, 177 N.J. 229, 232 (2003).

Defendant objected to the testimony, the trial court sustained the objection, and the witness then clarified her testimony, thus curing any prejudice that may have resulted from the testimony. After Longo clarified her initial statement, defendant had no further objection nor did he request a curative jury charge. Further, the evidence presented at trial, which consisted of three witnesses all stating that defendant took the initial aggressive action by throwing the glove at the officers, overcame any prejudice that might have resulted from the testimony. Contrary to defendant's contention, there was no error in the failure to give a curative instruction.

Defendant next argues that the prosecutor's comments during summation constituted misconduct and deprived him of a fair trial. The three remarks challenged by defendant were made by the prosecutor without objection. We are, therefore, governed by the plain error standard of review. R. 2:10-2. Defendant claims that the following two comments represented the prosecutor's personal opinions:

The officers were both in marked units in full uniform. There is no doubt whatsoever they were law enforcement officers in the performance of their duties. And he attacked them and he inflicted bodily injury on them. Officer Loveless got a cut on his ear, and scratches on the side of his face. And Officer Longo got the bruise under her eye, the little scrape on her nose, and she had some soreness on her central chest plate area from the stomp. That is bodily injury, ladies and gentlemen, and it's bodily injury on law enforcement officers acting in the performance of their duty. . . .

. . . .

He's not struggling because he's being beat on by Officer Longo. He's struggling for the same reason he was doing all this behavior that day. He just wasn't going to do what the officers were telling him to do. That, ladies and gentlemen, him using his physical force, his strength to prevent the officers from effecting a lawful arrest is resisting arrest, the highest level, the third level. Him running away and ignoring orders to stop is the next level, resisting arrest by flight. He's guilty of both of those levels of resisting arrest, flight, and using physical force to prevent the arrest.

Contrary to defendant's arguments, these two comments were based on the evidence and reasonable inferences drawn from it and, therefore, not prosecutorial misconduct. See State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).

Defendant asserts that the prosecutor attempted to associate defendant with other "threats," when he stated:

Your obligation is to try this case and to make findings of fact without passion, prejudice, or sympathy. You now have evidence: the testimony, physical exhibits, pictures. You have the evidence to take into the deliberation room with you. And think of your role -- this is a good way I've heard another judge describe this in the past. Our nation, our system, our freedom has external threats. We know that. And there are the armed forces that protect us from external threats. But, ladies and gentlemen, who protects us from internal threats? Who protects us from a government that may deny the rights guaranteed under the constitution? Who protects us from individuals who break the law and don't want to obey the laws enacted by the legislature and the executive branch and enforced by the Courts? That group who protects us from the internal threats: the overreaching government, the criminal, is you, the jury. That's your job. And that's why, ladies and gentlemen, you have to find each and every element of the offense beyond a reasonable doubt in order to convict the defendant. (emphasis added).

In State v. Knight, 63 N.J. 187, 193 (1973), the Court noted that it did not approve of a prosecutor's comment that "if the jurors had not been convinced of the defendant's guilt, they would not have 'met the responsibility' thrust upon them." However, the Court held that the remark did no harm because the trial court instructed the jury as to its role in reaching a verdict solely on the basis of the evidence. Ibid. Here, the comment was that it was the jury's job to protect society from threats from both government and criminals. There was overwhelming evidence of defendant's guilt. The prosecutor's comments, although better not said, were not so egregious as to constitute plain error. They were neither "clearly capable of producing an unjust result," nor capable of denying defendant a fair trial. R. 2:10-2.

Defendant next argues, again for the first time on appeal, that the jury instructions on defendant's oral statements fell short of the requirements of State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957). The testimony concerned defendant's understanding of his Miranda rights, his response that he did not remember what happened, and his statement that he did not want medical attention. The statements attributed to defendant were primarily in response to questions regarding his welfare. They were not inculpatory. Moreover, the judge instructed the jury that as judge of the facts it was its duty to evaluate credibility. The failure to give an instruction under Hampton and Kociolek is reversible only when the omission is clearly capable of producing an unjust result. State v. Jordan, 147 N.J. 409, 425 (1997). Here, again, there was no error, much less plain error, "clearly capable of producing an unjust result." R. 2:10-2.

Next, defendant asserts that it was plain error not to give an identification instruction. Even when defendant does not request the charge, a trial judge is required to instruct the jury on identification when identification is a "key issue" in the case. State v. Cotto, 182 N.J. 316, 325 (2005). Generally, an identification charge is to "be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). Identification was not a key issue in this case. The defense argued that defendant acted in self-defense. It did not argue that the police had the wrong person or defendant did not have a scuffle with the police. Moreover, there was sufficiently strong corroborative evidence from three eyewitnesses. Under these circumstances, the failure to give an identification instruction was not plain error.

Defendant's argument that the judge erred in denying his motion for judgment because there was insufficient evidence to convict lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Lastly, defendant argues that his sentence was excessive because (1) the trial judge abused his discretion in determining the aggravating and mitigating factors and (2) the five-year term, which is above the then-applicable presumptive term, is violative of the decision in Natale II, rendered while this appeal was pending. We have considered defendant's contention and supporting argument and are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). However, because the aggravating factors considered by the judge were not based solely upon defendant's prior record, we are constrained to remand under Natale II for consideration whether the judge would impose a lesser sentence in the absence of the presumptive term.

 
Accordingly, we affirm the judgment of conviction but remand for re-sentencing in accordance with the decision in Natale II.

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

(continued)

(continued)

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A-6444-04T4

 

April 13, 2007