STATE OF NEW JERSEY VS. MAYHEW D. WATSON, JR. (14-02-0075, SALEM COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1645-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAYHEW D. WATSON, JR., a/k/a
MAYHEW D. WATSON,
Defendant-Appellant.
Submitted August 30, 2017 – Decided October 3, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Indictment
No. 14-02-0075.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
briefs).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Geoffrey Gleason,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Tried by a jury, defendant Mayhew D. Watson, Jr., was
convicted of second degree eluding, N.J.S.A. 2C:29-2(b). The
trial judge sentenced him on November 6, 2015, to a nine-year term
of imprisonment. Defendant appeals and we affirm.
At trial, the State presented the testimony of two officers
and moved into evidence Mobile Video Recorder (MVR) films of the
incident. Defendant came to the attention of a Penns Grove
patrolman, Christopher Hemple, when he was captured on radar
driving approximately 46 miles per hour in a 25 mile per hour zone
at 11:00 p.m. The officer activated his lights, and defendant put
on his blinker and began to pull over, slowing to a near stop.
Suddenly, the car pulled away, traveling on the shoulder of the
roadway to the center line of the road, and back again. It passed
the Carney's Point Police Headquarters, a high school, and
travelled through a well-lit residential area. The vehicle
proceeded onto the southbound ramp of Route 295, crossing the
yellow line to the driver's left and back to the fog line on the
right hand side of the road. The officer followed, with his lights
and siren activated. On Route 295, the car suddenly cut in front
of a tractor trailer and drove on for seven to eight miles until
it finally pulled over and came to a standstill. The jury watched
the MVR footage from Hemple's car.
The officer estimated defendant's speed during the chase to
have been in excess of 100 miles per hour. When confronted,
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defendant told Hemple that he did not stop the car because he was
looking for a safe place to pull over.
Sergeant John Stranahan, a second Penns Grove officer, also
testified. He was Hemple's back up, and his MVR also recorded the
event. That CD was also played to the jury. He agreed that
defendant's speed, once on Route 295, exceeded 100 miles per hour.
Because another judge had prepared the charges and verdict
sheet, the trial judge on the record confirmed counsel's possession
of the proposed instructions, drawn from the Model Jury Charges,
and asked if they were "acceptable[.]" Both attorneys answered
in the affirmative. The trial judge added "Defendant's Election
not to Testify," Model Jury Charge (Criminal), "Defendant's
Election Not to Testify (2009), and instructed the jury regarding
the lesser included offense of third-degree eluding. Model Jury
Charge (Criminal), "Eluding an Officer" (2004).
After giving his instructions to the jury, the judge asked
if counsel "wish[ed] to be heard with regards to the charge?" Both
attorneys declined.
At sentencing, the State unsuccessfully moved for an extended
term to be imposed by the judge, pursuant to N.J.S.A. 2C:44-3a.
Defendant had been convicted of six prior indictable offenses and
was convicted on four separate dates. Although the judge denied
the application, he found aggravating factors 3, 6, and 9, and no
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factors in mitigation. N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-
1(b). The judge found the aggravating factors based on defendant's
failure to acknowledge the gravity of the offense that he
committed, the extent of his prior record, and the need to deter
him and others from engaging in such dangerous conduct. The judge
specifically discussed and rejected multiple mitigating factors,
including those in defendant's sentencing brief: 2, 4, 8, 9, 10,
and 11. N.J.S.A. 2C:44-1(b)(2), (4), (8), (9), (10), (11). He
based his decision on defendant's individual circumstances.
Relevant to this appeal with regard to mitigating factor 11, the
judge observed that defendant's incarceration would undoubtedly
cause a hardship on his dependents, however, the hardship was no
greater than that inflicted in every case where a family is left
without a father. Nothing in the record suggested an excessive
or unique hardship.
On appeal, defendant raises the following points:
POINT I
BECAUSE THE JUDGE FAILED TO INSTRUCT THE JURY
THAT IT MUST BE UNANIMOUS WITH RESPECT TO THE
MANNER IN WHICH A RISK WAS POSED TO ANY PERSON
DURING THE COURSE OF AN ELUDING, AND THE
VERDICT SHEET DID NOT REQUIRE THE JURY TO
SPECIFY WHAT RISK WAS POSED, THE DANGER OF A
PATCHWORK VERDICT REQUIRES REVERSAL. U.S.
CONST. Art. I, Pars. 1, 9, 10. (Not Raised
Below)
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POINT II
A POLICE OFFICER FACT WITNESS IMPROPERLY
OFFERED OPINION TESTIMONY THAT WATSON'S
ACTIONS WERE HAZARDOUS, DENYING THE JURY THE
OPPORTUNITY TO SERVE AS THE JUDGES OF THE
FACTS AND DENYING WATSON A FAIR TRIAL. (U.S.
CONST. AMENDS. V, VI, AND XIV; N.J. CONST.
(1947, ART. I, PARS. 1, 9 AND 10) (Not Raised
Below)
POINT III
AN EXCESSIVE SENTENCE WAS IMPOSED AFTER THE
COURT FAILED TO CONSIDER APPLICABLE MITIGATING
FACTORS AND IMPROPERLY CONSIDERED WATSON'S
CONTINUED DENIAL OF GUILT
a. The Court Improperly Considered The Fact
That Watson Maintained His Claims of Innocence
And A Defense At Sentencing
I.
Defendant did not object to the jury instructions now
challenged on appeal. See R. 1:7-2 ("except as otherwise provided
by R. 1:7-5 and R. 1:10-2 (plain error), no party may urge as
error any portion of the charge to the jury or omissions therefrom
unless objections are made thereto before the jury retires to
consider its verdict. . . .") As a result, the plain error
standard informs our consideration of defendant's first point.
See R. 1:10-2; State v. Wakefield, 190 N.J. 397, 473 (2007).
Furthermore, it is presumed that when a defendant does not object
to a jury charge, the charge was not mistaken and was unlikely to
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prejudice defendant's case. State v. Singleton, 211 N.J. 157, 182
(2012).
Defendant contends the jury should have been instructed to
reach a unanimous consensus as to which risks were posed by
defendant's conduct while he was eluding. He further argues that
the verdict sheet improperly failed to elicit a unanimous vote on
the nature of the risk. Defendant asserts that this raised the
specter of a "patchwork verdict[,]" one in which the jury was not
unanimous as to an essential statutory element. We do not agree.
The eluding statute states:
Any person, while operating a motor vehicle
. . . who knowingly flees or attempts to elude
any police or law enforcement officer after
having received any signal from such officer
to bring the vehicle or vessel to a full stop
commits a crime of the third degree; except
that, a person is guilty of a crime of the
second degree, if the flight or attempt to
elude creates a risk of death or injury to any
person.
[N.J.S.A. 2C:29-2(b).]
In construing a statute, we attempt to discern the meaning
and intent of the legislature. The best indicator of such intent
is the law's plain language. State v. Gandhi, 201 N.J. 161, 176
(2010). A statute's culpability requirement generally applies to
all elements of a crime, "unless a contrary purpose plainly
appears." Id. at 177 (citation omitted).
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"[A]ny double jeopardy concerns or issues of non-unanimous
guilty verdicts, may be addressed by carefully tailored jury
instructions, a detailed verdict sheet, or both." State v. Salter,
425 N.J. Super. 504, 516 (App. Div. 2012). However, the need for
such tailoring only arises when the language of the statute
implicates those issues, at the request of counsel, or due to the
circumstances of the offense.
The mere fact that in closing, the prosecutor gave examples
of jeopardy created by defendant's conduct, including the risky
maneuvers around the tractor-trailer and potential injury to the
drivers of three vehicles that defendant passed on Route 295, did
not create the need for an unanimity instruction. Defendant did
not request one because none was required.
In the absence of such a request, "the failure so to charge
does not necessarily constitute reversible error." State v.
Parker, 124 N.J. 628, 637 (1991), cert. denied, Parker v. New
Jersey, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992).
To determine if a specific unanimity charge is required, "[t]he
core question is, in light of the allegations made and the statute
charged, whether the instructions as a whole [posed] a genuine
risk that the jury [would be] confused." Gandhi, supra, 201 N.J.
at 193 (alterations in original) (quoting Parker, supra, 124 N.J.
at 638).
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On review we ask whether the acts alleged are conceptually
similar, or are contradictory, or only marginally related to each
other. Ibid. We also ask if there was any tangible indication
of jury confusion. Ibid. (quoting Parker, supra, 124 N.J. at
639).
The record is devoid of any indication of jury confusion.
Moreover, the very nature of the statute and the prohibited
activity is one that involves a continuing course of conduct,
identical acts occurring on public roadways. See N.J.S.A. 2C:29-
2(b). The acts enumerated by the prosecutor were thus conceptually
similar. See Parker, supra, 124 N.J. at 635. The individuals he
mentioned, including defendant, were all members of the public
whom defendant endangered by the act of eluding. And public safety
is the singular focus of the statute, whether the identity of the
individuals were known or not known. These instructions were
incapable of producing an unjust result. See R. 2:10-2. It is
the general public that is the victim here, not any individuals.
Thus the court did not err by failing to sua sponte provide a
unanimity instruction on the eluding charge or a more detailed
jury verdict sheet.
II.
Defendant next contends that Hemple's statement that
defendant's act of cutting in front of the tractor-trailer was
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"very hazardous" was an improper expert opinion proffered by a
fact witness. We consider this argument to be so lacking in merit
as to not warrant much discussion in a written opinion. See R.
2:11-3(e)(2).
Hemple was describing what he saw and did so as a lay witness.
See N.J.R.E. 704. He was not expressing an opinion on the ultimate
issue as to whether defendant's driving made him guilty of the
offense. He was expressing an opinion from the common sense
perspective that, while driving at speeds as high as 100 miles per
hour, to cut in front of a tractor-trailer was highly hazardous
driving. That un-objected to testimony certainly had no
possibility of producing an unjust result.
III.
Given defendant's substantial prior criminal history, the
record amply supported the trial judge's conclusion that
aggravating factors 3, 6, and 9 applied. The judge was not
required to find mitigating factor 11 because defendant lived with
two of his children and supported a third. Before the failure to
include that factor in the sentencing calculus is considered error,
some individualized harm must be demonstrated.
Appellate review of a sentence ensures that the trial court's
"exercise of discretion [is] based on findings of fact that are
grounded on competent, reasonable credible evidence" and that it
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"appl[ied] correct legal principles in exercising its discretion."
State v. Roth, 95 N.J. 334, 363 (1984). Sentences should be
modified only if a trial court makes "such a clear error of
judgment that it shocks the judicial conscience." Id. at 364.
Aggravating and mitigating factors identify "individual
circumstances which distinguish the particular offense from other
crimes of the same nature." State v. Yarbough, 195 N.J. Super.
135, 143 (App. Div. 1984), remanded for resentencing on other
grounds, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.
Ct. 1193, 89 L. Ed. 2d 308 (1986).
In this case, the aggravating factors were supported by the
record. In contrast, the record did not support a single
mitigating factor.
We review "a trial court's 'sentencing determination under a
deferential standard of review.'" State v. Grate, 220 N.J. 317,
337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).
We do not substitute our judgment for that of the sentencing court.
Id. at 606. We are satisfied the trial court followed the
sentencing guidelines, and its findings of fact and application
of the statutory sentencing factors were based on competent
credible evidence in the record. The term of years imposed does
not shock the judicial conscience. See State v. Bolvito, 217 N.J.
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221, 228 (2014). The judge's sentencing decision was thus entirely
proper.
Affirmed.
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