STATE OF NEW JERSEY v. MARCUS B. McMULLEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1374-07T41374-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS B. McMULLEN,

Defendant-Appellant.

_________________________________________________

 

Submitted May 13, 2009 - Decided

Before Judges A. A. Rodr guez, Payne and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Indictment No. 05-12-0852.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Anderson D.

Harkov, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Paul Salvatoriello, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant, Marcus McMullen, was found guilty of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4a, after exposing himself to a ten-year-old girl at a water park. He was sentenced to three years in custody, subject to Megan's Law. He has appealed.

On appeal, defendant raises the following issues:

POINT I

THE NUMEROUS ERRORS MADE BY THE TRIAL COURT WHEN IT ALLOWED THE INTRODUCTION OF EVIDENCE OF "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE, WHEN IT FAILED TO GIVE CRITICAL JURY INSTRUCTIONS, AND WHEN IT FAILED TO RESTRICT THE STATE'S USE OF SUCH EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL.

(Partially Raised Below.)

a. The court erred when it allowed the State to introduce portions of the video tape that had nothing to do with the alleged victim.

b. The court erred when it allowed the State to introduce evidence defendant had a Levitra pill in his possession.

c. The court erred when it failed to give a limiting instruction regarding the Levitra pill at all; and when it failed to give a limiting instruction regarding the video tape when it was played for the jury.

d. The court erred when it allowed the state to use "other crimes, wrongs, or bad acts" evidence to cross examine character witnesses.

POINT TWO

THE COURT ERRED WHEN IT COERCED A VERDICT FROM THE JURY BY TWICE NOT DECLARING A MISTRIAL WHEN THE JURY INDICATED IT WAS DEADLOCKED, AND BY FAILING TO PROVIDE GUIDANCE TO THE JURY THROUGH PROPER INSTRUCTIONS THE SECOND TIME IT FAILED TO DECLARE A MISTRIAL.

POINT THREE

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE ON HIS BEHALF WHEN THE COURT PRECLUDED HIS EXPERT FROM TESTIFYING THE STATE'S USE OF DEFENDANT'S VIDEOTAPE TO SHOW MOTIVE AND/OR INTENT WAS NOT SCIENTIFICALLY SUPPORTED.

POINT FOUR

THE BIAS AND ANIMOSITY EXPRESSED BY THE TRIAL JUDGE, ON AND OFF THE RECORD, TO DEFENDANT AND HIS ATTORNEY, COMBINED WITH HER PREJUDGMENT OF THE CASE BEFORE ANY WITNESSES WERE CALLED, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT FIVE

THE STATE PRISON SENTENCE IMPOSED ON DEFENDANT AFTER A JUDICIAL FINDING THAT DEFENDANT'S INCARCERATION WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO A JURY TRIAL.

Following our review of defendant's arguments in light of the record and applicable precedent, we affirm.

I.

The record in this matter discloses that on July 9, 2005, defendant, dressed in shorts, a shirt, flip-flops, and a "Gilligan's" hat, traveled to Wildwood for the day. Once there, he strolled the area, including a water park, taking video pictures as he went.

As the day progressed, H.J., a ten-year-old girl visiting a Wildwood water park, became the subject of defendant's videos, and at some point, H.J. became aware that she was being videoed. Just before H.J.'s departure from the park, defendant, while seated at a picnic table, exposed himself to her. H.J. informed her mother, who initially did not believe the child. However, when defendant walked off and H.J. commenced to cry, the mother credited her story. She called her husband, a Wildwood summer policeman who was the child's step-father. Soon thereafter, the mother called her husband again to inform him that defendant had a video camera that he had used to take pictures of H.J.

The father soon arrived on the boardwalk and, with another officer, confronted defendant, who denied the crime. The father then asked defendant whether he had a video camera, and when defendant admitted that he did, the father seized it. Additionally, the police confiscated a fanny pack being worn by defendant that was found to contain a Levitra pill and a pill cutter. While at headquarters, defendant told the police that, at the time of the incident at issue, he had been scratching a bug bite on his inner thigh, which might account for the child's belief that he was exposing himself. When, after obtaining a warrant, the police viewed the videotape, they observed footage of H.J., focusing on her buttocks and pubic area, as well as footage of those areas of other young girls.

At trial, defendant gave a different view of the events, stating that he took the video to show to his girlfriend in Maryland in an effort to convince her and her two children to spend time with him in Wildwood. Defendant testified that he filmed H.J. because she reminded him of his own daughter, who was then living with defendant's divorced former spouse. He testified further that H.J. and her siblings had gathered around him to see what was on his video camera. While looking at the video, H.J. also looked between defendant's legs, causing defendant to do so also. H.J.'s mother, standing at a distance, saw defendant glance down, and gave him "a look," whereupon defendant gestured to her that he was merely showing the children the video pictures. In addition to testifying on his own behalf, defendant offered the testimony of numerous character witnesses who testified to defendant's reputation as truthful and law-abiding.

II.

On appeal, defendant first challenges the introduction of the videotape into evidence at trial. Prior to jury selection, the trial judge held a hearing on the video's admissibility. At its conclusion, the judge ruled that the first part of the video, which pictured a trip to Philadelphia on a different day, was inadmissible, but she admitted the remainder. In doing so, the judge concluded that the Wildwood portions of the video were part of the res gestae of the case, observing that "[t]o suggest that a defendant charged with lewdness, that films he took of the victim over the course of however many hours it was in this case, is not relevant makes no sense. It's highly relevant, highly probative, and part of the entire incident. The film is a natural segue [] into the act of exposing himself."

Additionally, the judge found the Wildwood portion of the video was admissible pursuant to N.J.R.E. 404(b) to demonstrate defendant's motive, intent and plan. In reaching her conclusion, the trial judge examined the four factors set forth in State v. Cofield, 127 N.J. 328 (1992); namely (1) whether the evidence was relevant; (2) whether it was similar in kind and occurred reasonably close in time to that which was being charged; (3) whether the evidence was clear and convincing; and (4) whether the probative value of the evidence outweighed its prejudicial effect. Id. at 338. In that regard, the judge found that the evidence, which consisted of non-criminal bad acts encompassed within the Rule, was relevant to the material issue of defendant's state of mind and to defendant's likely defense of inadvertent exposure. Addressing the second prong, the judge recognized that defendant's conduct in taking the video on the day of the crime (thereby satisfying Cofield's proximity requirement) differed from his conduct in exposing himself. However, citing State v. Nance, 149 N.J. 376 (1997), the judge held that similarity was not required when motive and intent were at issue. The judge found further that the evidence was clear and convincing, since there was no question that defendant had taken the video at issue. As a final matter, the judge found that the probative value of the evidence outweighed the prejudice arising from its introduction. In this regard, the judge found the evidence to be "unique" in that it "fills in" the element of state of mind. The judge continued: "It's not conduct which is per se illegal. The defendant will proffer his explanation of why these films were made, and it will be up to the jury to determine whether or not, in light of what they're going to see, they consider the defense argument of accident reasonable."

We agree with the trial judge's analysis of the video's admissibility as res gestae evidence as it has been characterized in cases such as Robertson v. Hackensack Trust Co., 1 N.J. 304, 312 (1949).

In this regard, we find that the video's depiction of H.J. and the other young girls illuminated the context in which defendant's criminal conduct occurred, thereby assisting in the jury's understanding of the events as they unfolded. It added credence to the State's claim that defendant, having stalked H.J. throughout the day--although on occasion diverted by the bodies of other young girls--was seeking sexual gratification when the exposure took place, and that the exposure was not inadvertent. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Additionally the evidence was relevant to a consideration of defendant's claim that he videotaped H.J. because she reminded him of his daughter, since the videotape included images of the buttocks and pubic areas of other young girls. It tended to negate defendant's defense that he was merely scratching a bug bite at the time the alleged exposure occurred, demonstrating instead that defendant was seeking sexual gratification. And finally, the videotape was relevant to the jury's evaluation of defendant's testimony that he took the images to convince his girlfriend and her children to visit Wildwood with him, since the videotape contained no images of the town itself and its amenities, but only close-up shots of young girls. As we held in Cherry, "[e]vidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the event, explains the nature of the event, or presents the full picture of the crime to the jury." Ibid.

We conclude additionally that the videotape was admissible pursuant to N.J.R.E. 404(b). See, e.g., State v. Muhammad, 359 N.J. Super. 361, 390-91 (App. Div.) (recognizing dual grounds for admissibility), certif. denied, 178 N.J. 36 (2003). We adopt the trial judge's analysis in this regard, finding that she accurately evaluated the evidence in the light of the four Cofield factors. We add only that we are satisfied that the probative value of the evidence outweighed its prejudicial nature. See State v. Barden, 195 N.J. 375, 389 (2008) (permitting introduction of other crimes evidence when other evidence to prove the point is unavailable); State v. Covell, 157 N.J. 554, 570-71 (1999) (requiring that the prejudice be "very strong" to justify the exclusion of N.J.R.E. 404(b) evidence). See also State v. Zeidell, 299 N.J. Super. 624, 618 (App. Div. 1997) (admitting defendant's prior acts of lewdness to show motive), reversed on other grounds, 154 N.J. 417 (1998); State v. Cusick, 219 N.J. Super. 452, 464 (App. Div.) (admitting testimony concerning a prior sexual assault to show motive and absence of mistake), certif. denied, 109 N.J. 54 (1987).

We note that because the evidence was independently admissible as res gestae, the cautionary instructions that normally accompany the introduction of evidence pursuant to N.J.R.E. 404(b), Cofield, supra, 127 N.J. at 340-41, were unnecessary. State v. Long, 173 N.J. 138, 165 (2007) (holding that "generally no limiting instruction is necessary insofar as res gestae is concerned); State v. Martini, 131 N.J. 176, 242 (1993). Nonetheless we note the lengthy and careful instruction provided by the trial court at the conclusion of the trial regarding the proper use of the evidence at issue. While no limiting instruction was provided when the videotape was shown, no such instruction was requested. In circumstances in which the evidence was independently admissible as res gestae, we find no prejudice to have resulted. R. 2:10-2; State v. Blakney, 189 N.J. 88, 93 (2006) (finding it a "better practice" to give a contemporaneous instruction); State v. Angoy, 329 N.J. Super. 79, 89 (App. Div.) (finding no error in giving instruction only at conclusion of the case), certif. denied, 165 N.J. 138 (2000).

Defendant also argues that plain error occurred when defendant's brother, testifying as a character witness, was asked by the prosecutor whether he had seen the videotape, and he responded "no." Defendant asserts error in a similar question posed to defendant's ex-girlfriend. And finally, he claims error in permitting the prosecutor to ask his present girlfriend, after she testified that she could have requested that defendant videotape the water park, whether she instructed him to videotape a ten-year-old child's buttocks and vagina.

Rule 404(a)(1) bars the prosecutor from introducing character evidence as proof of the defendant's propensity to commit the crime charged. However, when the defendant opens the door by offering evidence of his good character, such negative evidence may be introduced on cross-examination. State v. Baluch, 341 N.J. Super. 141, 188 (App. Div.), certif. denied, 170 N.J. 89 (2001); State v. Raymond, 46 N.J. Super. 463, 467 (App. Div.), certif. denied, 25 N.J. 490 (1957); N.J.R.E. 607.

In light of this precedent, we find the State's cross-examination to have been proper.

III.

Defendant additionally argues that the trial court erred in permitting the introduction into evidence of the Levitra pill, together with a pill cutter found in defendant's fanny pack. The two items were introduced without objection through the testimony of one of the arresting police officers, who testified that, when stopped, defendant had refused to state what the pill was, calling it generically a "health pill." However, the officer had subsequently determined that it was a medication used in the treatment of impotence.

We tend to agree with the defendant that the evidence was irrelevant to his prosecution, particularly since no effort was made to connect impotence with the lewd conduct in which defendant engaged. Thus, the evidence should not have been admitted. See N.J.R.E. 402 (limiting admissible evidence to that which is relevant); see also N.J.R.E. 401 (defining relevant evidence). But because no connection between the evidence and defendant's crime appears to exist, we see no grounds for concluding that the admission prejudiced defendant. R. 2:10-2.

IV.

The defendant also claims error to have occurred in connection with the jury's two messages to the trial judge that they were deadlocked. In that regard, the record reflects that the jury was charged on October 5, 2006, and then briefly deliberated. Their deliberations then continued on October 10, 2006, from 10:00 a.m. to 11:30 a.m. At this point, the jury sent the judge a note declaring deadlock. After summoning counsel, the judge indicated that she intended to re-read to the jury the instruction "regarding consulting with each other" and "ask them . . . if giving them again, any definitions would be of use, and then send them back." Defense counsel objected to any instruction other than the deliberation one. Nonetheless, the judge overruled the objection. She then re-read the basic instruction about deliberations and asked the jury foreman to tell her if re-reading any other instruction would be helpful. None was requested.

After the lunch break and a playback of requested testimony, the jury deliberated again from approximately 2:40 p.m. to 4:00 p.m., when they again reported that they were deadlocked. Upon receiving the jury's note, the judge determined to require the jury's return on the following day. She stated to the jury:

Folks, I've received your, I guess, second note saying that you're deadlocked. It's a problem in a case that took four days to release a jury after basically one day. I'm not going to do it. I don't think it would be reasonable on my part. I will require you to return tomorrow morning, but I can tell from your expressions that you are fairly tired. I want you to come back tomorrow morning. Hopefully -

JUROR: We tried.

THE COURT: I know. As I said, four days is too much time for me to just discharge you. So don't think about it. Forget the pink elephant in your living room, and come back tomorrow and we'll start afresh.

After the jury was discharged, defense counsel moved for a mistrial, arguing that the judge's statements had constituted an impermissible "dynamite charge." State v. Czachor, 82 N.J. 392, 394 (1980). The denial of that motion is also asserted to have been erroneous.

In Czachor, the Court rejected the charge established in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) to encourage deadlocked juries to reach a unanimous verdict. Czachor, supra, 82 N.J. at 394. The Czachor Court expressed concern about the coercive effect of a charge that "tends to focus upon possibly the weakest links in the chain locking the jury in disagreement, namely, the minority holdouts on the jury," requiring them, in particular, to reconsider their beliefs, and engendering in them a sense of guilt for the impasse. Id. at 398. The Court indicated that the charge did so "through various references to such matters as the expense and waste of a mistrial, the need for a retrial, and the cost and inconvenience of a new trial." Ibid. The Court continued: "The charge further intimates that the dissenting jurors may not be acting properly or conscientiously since another similar jury will be called upon in a new trial to perform the identical task and presumably will achieve it, i.e., reach a unanimous verdict on the same evidence." Ibid. Thus, the charge "may easily influence a minority juror to acquiesce in the majority vote." Id. at 399.

Our review of the judge's statements satisfies us that they did not fall within the purview of those prohibited by Czachor. There was no reference whatsoever to dissenting jurors, to a need for a retrial, or the wasted costs of the present action. The judge merely remarked on the disproportion between the length of trial and the length of deliberations, and gave her opinion that jury discharge in the circumstances would not be reasonable.

Moreover, we find nothing inherently coercive in requiring the deadlocked jury to continue its deliberations on the following day, determining that such course was within the judge's discretion, given the short period of time that the jury had devoted to its deliberations. Id at 406. See also State v. Figueroa, 190 N.J. 219, 239-40 (2007) (finding one day of deliberations after a three-day trial to have been brief, and finding no error in requiring the deliberations to continue).

V.

Defendant also argues that the trial judge erred in barring testimony by defendant's expert psychologist, who would have testified that there was no connection between defendant's act of filming young girls and his act of exposing himself. According to the expert's report: "There is no research that can or cannot demonstrate a relationship between such videos and the potential for sexual acting out." However, that was not the State's theory. It did not contend that because defendant took videos, he was also likely to expose himself. Rather, the State sought to prove that the videotape provided evidence of defendant's prurient interest in young girls, and likewise, evidence of his state of mind at the time he exposed himself. Thus, the expert's testimony lacked the relevance required by N.J.R.E. 702 (requiring that expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue."); see also State v. Berry, 140 N.J. 280, 291 (1995); State v. Kelly, 97 N.J. 178, 208 (1984).

VI.

Defendant makes two additional arguments: that the judge exhibited bias and should have recused herself, and that his sentence was excessive and violative of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We find neither argument to have sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

We find none to the recorded instances of conduct by the judge, upon which defendant relies, to have exceeded the broad authority conferred upon her to control the courtroom and proceedings therein. D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008). We further find that the judge properly exercised her authority under N.J.R.E. 403(b) in cutting short defendant's lengthy recitation of his life history. And as a final matter, we find nothing inappropriate in the judge's determination not to admit defendant to pre-trial intervention over the prosecutor's objection. Nothing suggests that the prosecutor's determination in this regard constituted a "patent and gross abuse of discretion." State v. Wallace, 146 N.J. 576, 582 (1996).

As far as sentencing is concerned, we note that the judge, having reasonably concluded that the presumption against imprisonment established by N.J.S.A. 2C:44-1(e) had been overcome in this case as the result of the risk of reoffense and the need for deterrence, N.J.S.A. 2C:44-1(a)(3) and (9), sentenced defendant at the bottom of the third-degree range. We find no error in that result. State v. Roth, 95 N.J. 334, 363-64 (1984). We find defendant's argument that the sentence violated Apprendi's principles to be misplaced, since defendant was sentenced within the range provided by statute, and not above it.

 
Affirmed.

See also State v. Williams, 190 N.J. 114, 131 (2007) (suggesting this factor can arguably be eliminated in factual circumstances such as these); State v. Long, 173 N.J. 138, 162 (2007) (permitting admission of a wider range of evidence when the motive or intent of the accused is material).

We do not find the trial judge's single reference to res gestae evidence in the course of her careful instruction on the proper use of the videotape to have led the jury to misuse the evidence presented, thereby causing plain error.

We are uncertain what the judge meant in her reference to the "pink elephant," but assume she merely sought to instruct the jury to forget the trial for the night, and to deliberate anew in the morning.

(continued)

(continued)

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A-1374-07T4

RECORD IMPOUNDED

August 17, 2009