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State v. Cowan

January 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT COWAN, DEFENDANT-APPPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0479.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2008

Before Judges Parrillo and Messano.

Tried by a jury, defendant Herbert Cowan was convicted of conspiracy to commit robbery in the first degree, N.J.S.A. 2C:5-2a and 2C:15-1; four counts of robbery in the first degree, N.J.S.A. 2C:15-1; possession of a handgun for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a; unlawful possession of a firearm in the third degree, N.J.S.A. 2C:39-5b; and aggravated sexual assault in the first degree, N.J.S.A. 2C:14-2a. After returning its verdict on these charges, the same jury convicted defendant of possessing a firearm having previously been convicted of certain crimes, N.J.S.A. 2C:39-7b, a crime of the second degree.

Judge Ronald G. Marmo sentenced defendant to an extended term of imprisonment of fifty years on the aggravated sexual assault conviction, and ran all other sentences on the substantive charges concurrently. He imposed a mandatory 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. On the "certain persons" conviction, N.J.S.A. 2C:39-7b, the judge imposed a consecutive eight-year term of imprisonment with a mandatory five-year period of parole ineligibility.

Defendant raises the following points on appeal:

POINT I THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN ADMITTING "OTHER BAD ACTS" EVIDENCE AS PROOF OF THE DEFENDANT'S MOTIVE.

POINT II THE PROSECUTOR COMMITTED PLAIN ERROR BY IMPROPERLY BOLSTERING THE CREDIBILITY OF CO-DEFENDANT MITCHELL AND THE VERACITY OF HIS TESTIMONY INCULPATING THE DEFENDANT. (NOT RAISED BELOW)

(A)

The Prosecutor Improperly Injected "Judge Marmo" Into The Jury's Evaluation Of Co-Defendant Mitchell's Credibility And Veracity. (Not Raised Below)

(B)

The Prosecutor Improperly Injected Himself Into The Jury's Evaluation Of Co-Defendant Mitchell's Credibility And Veracity. (Not Raised Below)

POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW)

POINT IV IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 58 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.

(A)

The Trial Court Abused Its Discretion In Sentencing The Defendant To An Extended Term As A Persistent Offender.

(B)

Imposition Of A Base Extended Term Of 50 Years Was Manifestly Excessive.

(C)

The Court Abused Its Discretion In Imposing A Consecutive Sentence On The Defendant's Conviction On Count Nine For Being A Person Prohibited From Having A Weapon.

(D)

The Court Abused Its Discretion In Applying "A Total Package" Analysis.

POINT V THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING PROOF OF THE DEFENDANT'S DNA BECAUSE THE EVIDENCE TESTED WAS NOT RELIABLE AND BECAUSE A "CHAIN OF CUSTODY" COULD NOT BE ESTABLISHED. (NOT RAISED BELOW)

POINT VI THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW WAS VIOLATED. (NOT RAISED BELOW)

POINT VII THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY AN IMPARTIAL JURY BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A RECHARGE. (NOT RAISED BELOW)

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We summarize the substantial, incriminating evidence introduced by the State at trial. Larry Jones, David E. Edwards, and Dondray Goodwin were in the first-floor apartment of 31 Holsman Street, Paterson, at approximately midnight on May 16, 2003. The apartment, which various witnesses described as a "crack house," was occupied by Rosemary James and her cousin, Sheryl Leach. Jones, Edwards, and Goodwin all knew James and Leach for many years from the neighborhood, knew they were drug dealers, and knew both had significant drug habits. On the night in question, Jones, Edwards, and Goodwin were in the living room of the apartment smoking crack cocaine. James, and her boyfriend Donald Ferrar, were in one bedroom in the apartment, and Leach was in a second bedroom.

The various witnesses testified that they heard a knock on the front door, and when Jones asked who it was, a voice identified himself as "Nick," or "Nicky," the name of James' former boyfriend. Jones opened the front door and two men armed with handguns entered the apartment. One was dressed in dark clothing, the other wore a light colored jacket, and both had masks or stocking caps that covered their faces.

The intruder in the dark coat shot a round into the ceiling of the apartment because the occupants in the living room, all of whom were "high," were not paying attention to him. Everyone was made to strip to their underwear and lay on the floor as the man in the light-colored jacket searched their clothes for money, other valuables, or drugs. At one point, the dark-clothed individual ordered James into the room, calling her by her nickname, "Punchy." When she came in the room, the intruder made her lean over a chair and raped her while holding a gun to her head. Shortly thereafter, both men left. Jones, Edwards, and Goodwin could not identify either of the assailants. With the exception of some minor discrepancies, the testimony of the three men as to these events was remarkably consistent.

Leach testified, as did Edwards and Goodwin, that Lena Coleman, another drug addict that they all knew from the neighborhood, came to the apartment earlier in the evening and asked for change of a fifty dollar bill. She was accompanied by another neighborhood drug user, Tyrone Williams. Leach grew suspicious because the apartment had been robbed several times in the past. So, after Coleman left, she hid all her drugs and money in her bedroom. She was in the bedroom when the intruders entered, so she did not see any of the actual events that took place in the living room. Leach did hear a gunshot, heard someone say "[e]verybody get on the floor," heard someone ask for "Punchy," and later saw a very upset James who claimed she had been raped. Leach left the apartment with her drugs before the police arrived.

James also testified that Coleman came to the apartment earlier looking for change for a fifty-dollar bill. Later in the evening, as she left her bedroom to go to the bathroom, James saw everyone in the living room lying on the floor. She saw two men, one in light clothing and one in dark clothing, standing over them. The man in the dark clothing fired a bullet into the ceiling, and the other man took the jewelry she was wearing. James testified that the intruder in the dark clothing pointed a gun to her head, forced her to bend over a chair, vaginally penetrated her, and ejaculated.

On cross-examination, James acknowledged that she knew defendant from the neighborhood, but by his nickname, "Hameen." Defendant had never come to the apartment to buy any drugs from her. She also testified that she knew Matthew Mitchell from the neighborhood and that he had come to her apartment to buy drugs. James was unable to identify either of the assailants.

After the intruders left, the Paterson police were called to the scene, and James was taken to St. Joseph's Hospital to undergo a sexual assault examination. Inside the living room of 31 Holsman Street, police found a .380 caliber shell casing on the floor, and they recovered a pair of blue sweatpants, a white coat, and two pieces of black cloth in a nearby backyard.

Both Matthew Mitchell and Lena Coleman, who were indicted with defendant, entered plea bargains with the State and testified at trial. Mitchell claimed that he met defendant and Coleman earlier in the evening and that Coleman said she knew that the "bitches" that lived at 31 Holsman Street had drugs and money. Mitchell, Coleman, and defendant agreed to rob the occupants of the crack house, and it was decided that Coleman would go there first to make sure James and Leach were home.

Mitchell testified that Coleman left and returned shortly thereafter advising that everyone was in 31 Holsman Street as planned. Mitchell put on a white jacket, defendant put on black sweatpants, and both put on black face masks; defendant was armed with a gun. When they arrived at the apartment, defendant knocked on the door and used the name "Nick," which Coleman had told him to use. After Mitchell and defendant were let in the apartment, defendant ordered everyone on the ground, fired a shot into the ceiling, and Mitchell frisked ...


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