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State v. Mc Kane


October 15, 2010


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-07-1115.

Per curiam.


Submitted September 22, 2010

Before Judges R. B. Coleman and J. N. Harris.

Defendant Mike Mc Kane was indicted by a Hudson County Grand Jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (counts one, two, and three); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts six, seven, and eight); first-degree robbery, N.J.S.A. 2C:15-1 (count four); and second-degree burglary, N.J.S.A. 2C:18-2 (count five). Defendant was tried before Judge Frederick J. Theemling, Jr. and a jury, which resulted in the conviction of defendant on all counts except count four, of which defendant was convicted of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1.

At sentencing, the trial court granted the State's application to impose an extended term upon defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). On count three, the judge sentenced defendant to a fifty-year term of incarceration, subject to an 85% term of parole ineligibility pursuant the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining counts were merged with count three.

Defendant raises the following issues on appeal:





We have reviewed completely the trial record under the lens of the arguments raised by defendant, and the relevant law. For the reasons that follow, we affirm defendant's conviction and the sentence imposed.


These were the facts presented at trial. In the early hours of December 17, 2005, after returning to her first-floor apartment in Jersey City from an office Christmas party and a very brief date, the victim, G.B., became immersed in online computer activities. Suddenly, an uninvited male emerged from the bedroom. The stranger -- clad in all black and wearing a ski mask or hood drawn close to his face -- approached where G.B. was sitting. The individual made a gesture as if he were carrying a gun, and then demanded "something along the lines of where is the money." As the perpetrator grabbed G.B. by the throat and forced her into the kitchen, she gave defendant three hundred-dollar bills from a coffee cup. A struggle ensued as the man pushed G.B. back into the living room, all the while holding her throat, making it difficult for her to breathe and speak. The attacker then began to sexually assault G.B. She was able to convince him to put on a condom, after which he proceeded to rape G.B. for approximately forty minutes.

Once the assault concluded, the intruder attempted to have a conversation with G.B. to the point of apologizing for breaking into her apartment. He also went into the kitchen to help himself to some food and water. The victim was able to retain the Poland Spring bottle defendant drank out of for evidence, in addition to recovering the condom defendant used during the rape. Shortly thereafter, the assailant left the apartment through G.B.'s bedroom window.

Thirty minutes after the attack, the victim called 9-1-1. After the police arrived, she explained what had happened and was subsequently taken to the hospital where a medical examination was conducted and evidence -- using a rape kit -- was gathered. A nurse observed that there were marks on G.B.'s neck consistent with choking, and that there was redness and swelling of the vaginal area, consistent with traumatic sexual intercourse. G.B. was subsequently released from the hospital suffering from pain in her neck and left shoulder, and with a sore throat.

Several months passed while the assailant remained at large. In 2007, through the Combined DNA Index System (CODIS),*fn1 the December 17, 2005 rape was linked to defendant, who was then confined in South Woods State Prison on an unrelated crime. The indictment was returned on July 3, 2007, and the trial commenced less than one year later, in June 2008.

At trial, the State presented evidence that the DNA evidence collected from the rape kit, water bottle, and condom matched that of defendant. The defense attempted to impeach the victim's credibility by noting that she did not call the police right away after the sexual intercourse, and that there were several inconsistencies in her story between what she told the police and what she testified to at trial. Additionally, the defense sought to introduce emails that G.B. had distributed in the days immediately after her rape, referring to her then-unknown attacker as a "savage" and a "sub-human coon." The trial court excluded such evidence for its lack of probative value and its capacity to engender confusion and undue prejudice.

The defense also sought to introduce testimony from Hudson County Prosecutor's Office Detective Shonda Rosario, who was unavailable at the time of the trial. Detective Rosario had prepared an unsworn narrative summary compiled at the scene of the crime in which it was reported that defendant and victim remained lying in bed after the rape, chatting with one another.

Such evidence, according to the defense, would raise reasonable doubt regarding the consent element of the State's case against defendant for rape. Defendant requested a short adjournment of the trial in order to obtain the testimony of this unsubpoenaed witness, but the trial court denied such request, determining that the testimony was merely tangential to the case.



A criminal defendant has the right under both the United States and New Jersey Constitutions "to be confronted with the witnesses against him," and is also afforded the right to present all relevant evidence in his defense, and to have a fair trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Defendants are also afforded a "fair opportunity to defend against the State's accusations," and to confront the witnesses presented by the prosecution against them. State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). It is unquestioned that "[c]oupled with the rights to compulsory process and to due process, the right of confrontation guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" State v. Budis, 125 N.J. 519, 531 (1991)(quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed. 2d 636, 645 (1986)).

Nevertheless, these essential constitutional rights are not absolute, and may, in appropriate circumstances, bow to competing interests.

States may exclude evidence helpful to the defense if exclusion serves the interests of fairness and reliability. Thus, trial courts retain wide latitude... to impose reasonable limits on... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Because confrontation is fundamental to a fair trial, however, its denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interests be closely examined. [Id. at 531-32 (internal citations and quotations omitted).]

Some twenty-four hours after the attack, G.B. sent emails referring to her attacker as a "savage" and a "sub-human coon." Defendant sought to have these emails introduced to impeach the victim, as they were claimed to be exculpatory and "probative because they showed potential bias or prejudice" of the victim towards persons of color.

Defendant notes that several federal cases have discussed the potential violation of a defendant's right to confrontation when prevented from cross-examining witnesses who displayed potential racial or ethnic bias. See Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008) (evidence of victim's extreme racial bias entitled defendant to cross-examination because it is reasonable to suppose that one whose bias was of such intensity might distort or fabricate testimony against an object of his bias); United States v. Figueroa, 548 F.3d 222 (2d Cir. 2008) (harmless error to prohibit cross-examination of government witness about swastika tattoos and any related bias).

In this case, the State's evidence of guilt was overwhelming. Moreover, the credibility of G.B. regarding the derogatory identifying characteristics of defendant -- a "savage" and a "sub-human coon" -- were not in issue due to the nature of how defendant was ultimately apprehended. We find unpersuasive defendant's assertion that G.B.'s bias was directly related to the issue of whether G.B. consented to sexual activities, because our review confirms that consent was collateral and not, as defendant argues, "a central issue in the case." Thus, we find those federal authorities distinguishable.

As outlined in the New Jersey Rules of Evidence, evidence is relevant only if it has probative value and has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The probative nature of evidence is determined by the court focusing on "the logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). If found to be relevant, evidence may still be excluded from trial if its probative value is substantially outweighed by the risk of "undue prejudice, confusion of the issues, or misleading the jury." N.J.R.E. 403.

Our Supreme Court generally gives substantial deference to a trial court's evidentiary rulings. State v. Ramseur, 106 N.J. 123, 266 (1987). Where a trial judge has excluded evidence that is apt to mislead or confuse jurors or create undue prejudice, appellate courts will uphold such rulings unless there is a "clear error of judgment." State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); see also N.J.R.E. 403.

The derogatory portions of the emails in which G.B. referred to the person who turned out to be defendant were properly excluded by the trial court, as Judge Theemling found them to be utterly without probative value and unduly prejudicial, as do we. However, the trial court specifically instructed the defense attorney that if the contents of the emails contradicted the victim's direct testimony at trial, those emails could be used -- absent the derogatory terms -- during cross-examination to impeach the witness. Defendant's right to confrontation through cross-examination was not infringed by such redaction, as the defense did so cross-examine the victim, referring to the substantive contents of the emails during this process.

As the trial court reiterated during defendant's motion for a new trial, [a]dmitting the email[s] would have only served to inflame and distract the jurors to such a degree that it's unlikely that they would have been able to perform their proper function as fact finders... this case did not involve an identification of the defendant at the time of the incident or relatively short period of time thereafter. The only time that the victim happened to see the defendant was in this court after the defendant was identified by a CODIS hit and DNA.

Therefore, any bias that the victim may have harbored against persons of color was irrelevant, as she never directly identified defendant prior to trial as sexually assaulting her; a DNA match did that for the State. Moreover, given the totality of the evidence against defendant on all elements of the crimes charged, any curtailment of cross-examination of the victim was harmless. See State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971).


As part of its plenary trial management duties, a court "has the power to tightly control its calendar to assure the efficient administration of the criminal justice system." State v. Ruffin, 371 N.J. Super. 371, 388 (App. Div. 2004). Rulings on requests to adjourn a trial are discretionary and do not amount to reversible error unless the reviewing court finds that the trial court abused its discretion. State v. Garcia, 195 N.J. 192, 196 (2008); see also State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).

It has been held in several cases cited by defendant that it was an abuse of discretion to decline an adjournment request. See State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000); State v. Middleton, 299 N.J. Super. 22 (App. Div. 1997); State v. Garcia, 195 N.J. 192 (2008). The defendant's reliance on these cases is misplaced, as those cases involved newly discovered witnesses, new alibi claims, and an attempt to bring an inmate -- who was a witness to a confession -- to court from jail. Bellamy, supra, 329 N.J. Super. at 377-78; Middleton, supra, 299 N.J. Super. at 34; Garcia, supra, 195 N.J. at 204-05.

Here, the defense was fully aware of Detective Rosario's review of the incident, and her conversation with the victim at the scene. Yet the defense failed to subpoena the witness even though it was aware of her proposed testimony long before trial. The trial court took note of this, additionally finding that the testimony to be given by the detective was only "tangential" to the case. See also State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961) (holding that "the tardiness of defendant's request [for an adjournment] would have been sufficient reason to have denied it in the first place"), aff'd, 36 N.J. 307 (1962).

Moreover, defendant's right to present evidence in his defense was not curtailed in this case. The victim testified at trial that she and the defendant had a conversation after the sexual assault, but flatly denied during extensive cross-examination lying in bed with him afterwards. Additionally Lieutenant Honey Spirito, Detective Rosario's supervisor, testified for the State. During cross-examination, the lieutenant indicated that the report prepared by Detective Rosario made reference to the victim's statement that G.B. and defendant remained in bed talking, but this was not a direct quotation, just a summary of the victim's discussion with the detective. Thus, the jury was well aware of the circumstances that existed immediately following defendant's sexual congress with G.B. Detective Rosario's testimony would have been cumulative. More importantly, defendant has never indicated how the addition of the detective's testimony might have "led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.


Defendant next argues that the trial court improperly excluded a jury instruction regarding statements that defendant made to the victim during the incident, citing the Kociolek*fn2 /Hampton*fn3 doctrine. The nature of G.B.'s testimony regarding defendant's statements during the intrusion itself were limited to defendant's demand for money; defendant threatening G.B. that he would kill her if she kept resisting; defendant's instructions to G.B. to remove her clothing; defendant telling G.B. that he was going to rape her; defendant and G.B. arguing about what sexual acts she would be required to perform on him; defendant's apology for breaking into G.B.'s home; defendant continuing to look for money and food in the kitchen after the attack; and defendant's attempts to turn off G.B.'s cell phone.

Defense counsel requested a jury charge regarding defendant's statements for "when [G.B.] or anyone else testified to what the defendant told her when he was in the apartment" while committing the crime. In reviewing the necessity of such a charge, the trial court concluded that it was designed for when an individual is remembering the statement of the statement, talking about an incident that happened outside of the witness's presence and outside the defendant's presence when he's making the statement. This has no applicability at all to a res gestae when the conversations or the witness is talking about the actual conversation of a defendant during the incident. This is not a statement by the defendant afterwards describing an incident or what he did or didn't do.

Our settled law provides that absent a defendant's request to the contrary, "a Hampton charge should always be given," State v. Jordan, 147 N.J. 409, 425 (1996), and "[l]ike the Hampton charge, the Kociolek charge should be given whether requested or not." Id. at 428. "The failure of a court to give a Hampton charge, however, is not reversible error per se," and the same is true of the failure to give a Kociolek charge. Id. at 425, 428.

The statements of defendant during the event that were reported to the jury by G.B. were part of the res gestae. We do not believe that the principles that undergird the Kociolek/Hampton doctrine apply to a lay witness's description of defendant's res gestae statement during the event. Moreover, we find no plain error in the trial court's refusal to instruct the jury along the lines of Kociolek/Hampton. See Jordan, supra, 147 N.J. at 428-30.


Defendant contends that the trial court erred in ruling that several of his prior indictable convictions were admissible. Pursuant to State v. Brunson, 132 N.J. 377, 392 (1993), those convictions were made available for presentation to the jury in sanitized form, as impeachment evidence. Specifically, defendant claims that his convictions from 1990 (possession of controlled dangerous substance), 1993 (attempted robbery), and 1995 (robbery) are too remote to the present offense, and should have been excluded. We disagree.

Defendant argues that because of the trial court's ruling, he chose not to testify in his own defense, and therefore his conviction must be vacated on appeal. This claim is cognizable on appeal despite defendant's decision to refrain from testifying. See State v. Whitehead, 104 N.J. 353, 360-61 (1986).

"[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978); accord State v. Spivey, 179 N.J. 229, 243 (2004). "This discretion is broad, and the key to exclusion is remoteness." State v. Drury, 382 N.J. Super. 469, 484 (App. Div. 2006), aff'd, 190 N.J. 197 (2007). The trial court "shall admit evidence of criminal convictions to affect credibility of a criminal defendant" unless the court, in its discretion, finds that the evidence's "probative force... is substantially outweighed so that its admission will create undue prejudice." Sands, supra, 76 N.J. at 147; accord Spivey, 179 N.J. at 243.

The trial court did not err in permitting the prosecution to use defendant's prior convictions for impeachment purposes. The probative value of defendant's convictions was not outweighed by the potential for unfair prejudice, Brunson, supra, 132 N.J. at 390, and the jurors were entitled to consider defendant's disregard for the rules of ordered society in evaluating his credibility. See State v. Morris, 242 N.J. Super. 532, 544-45 (App. Div.), certif. denied, 122 N.J. 408 (1990).


Lastly, defendant argues that the trial court's imposition of the extended term fifty-year sentence subject to NERA is excessive and not supported by the record. Our role in reviewing excessive sentence claims is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-09 (2010). As long as the sentencing judge's findings of statutory aggravating and mitigating factors "'were based upon competent credible evidence in the record,'" and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for the sentence imposed by a trial judge, who is afforded considerable discretion in the imposition of sentence. Id. at 608 (quoting State v. Roth, 95 N.J. 334, 345 (1984)).

When trial judges exercise their discretion in accordance with the principles set forth in Roth and in the New Jersey Criminal Code, "they need fear no second-guessing." Ibid. (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Here, the judge found the following aggravating factors: three, the risk defendant will commit another offense; six, the extent of defendant's prior record; and nine, the need for deterrence.

N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge did not find any mitigating factors. Those findings are well supported by the record.

Prior to sentencing, the State moved to have defendant sentenced to a mandatory extended term, pursuant to N.J.S.A. 2C:44-3(a), as a persistent offender. The judge granted the motion based upon defendant's extensive criminal record, and defendant does not challenge the sentencing judge's determination that he was extended-term eligible.

Finally, nothing about the ultimate sentence is conscience shocking. It falls well within the statutory framework and is supported by competent credible evidence.


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