STATE OF NEW JERSEY VS. MAURICE GOODEN(13-06-1626, ATLANTIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5528-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE GOODEN, a/k/a MARK
THOMAS,
Defendant-Appellant.
___________________________________
Submitted April 4, 2017 – Decided September 26, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 13-06-1626.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Maurice Gooden appeals from his 2015 conviction
following a jury trial of aggravated sexual assault and robbery,
and his extended term sentence. We affirm.
We discuss the pertinent facts when we address each legal
issue, but begin with a brief overview. Ruth1 was sexually
assaulted and robbed in the early morning hours of April 25, 2002,
in Atlantic City. As she walked home from a bus stop, a young
black man she had spotted on the bus grabbed her from behind,
attacked her, and dragged her into an alley. She struggled to
break free, grabbed his knit hat and briefly saw his face. He
then caused her head to hit a wall, knocking her out. When she
awoke, she was still in the alleyway, her pants gone, her underwear
halfway down her legs, and her purse and cellphone missing.
Later that day, Ruth told police her assailant was a black
man in his mid-twenties, about six-foot-one-inch or six-foot-two-
inches tall. A Sexual Assault Nurse Examiner examined her later
at the hospital. Ruth could not recall if physical sexual contact
took place. However, the nurse discovered bruising and redness
in Ruth's genital area, consistent with sexual assault. Vaginal
and cervical swabs were found to contain semen.
1
We use pseudonyms to protect the identity and privacy of the
victim.
2 A-5528-14T2
While Ruth was in the hospital, police canvassed the area of
the assault. They found keys, apparent blood, and an Atlantic
County welfare identification card that belonged to defendant.
Ruth failed to identify defendant from a photo array, and police
unsuccessfully sought witnesses using defendant's photo.
Several years after the attack, the New Jersey State Police
matched DNA recovered in Ruth's case to DNA attributed to defendant
in New Jersey's DNA database. The State then obtained a buccal
swab from defendant and concluded he was a likely contributor to
the DNA mix recovered from Ruth.2 The grand jury thereafter
charged defendant with two counts of first-degree aggravated
sexual assault — sexual penetration during a robbery and against
a physically helpless victim, N.J.S.A. 2C:14-2(a) and N.J.S.A.
2C:14-2(a)(7); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1); and second-degree robbery, N.J.S.A. 2C:15-1.
After a three-day trial, the jury convicted defendant on all
counts. Judge Bernard E. DeLury, Jr., imposed a fifty-five-year
persistent-offender-extended term, N.J.S.A. 2C:44-3(a), subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law,
N.J.S.A. 2C:7-1 to -23.
2
Apparently, the initial match was found in December 2006;
defendant was deemed incompetent to proceed for a period of years;
and the buccal swab was not collected until 2013.
3 A-5528-14T2
On appeal, defendant presents the following points in his
counseled brief:
POINT I
THE DESCRIPTION OF MR. GOODEN'S IDENTIFICATION
CARD AS A "WELFARE CARD" VIOLATED HIS RIGHT
TO A FAIR TRIAL. (Not Raised Below).
POINT II
THE CUMULATIVE EFFECT OF REPEATED INSTANCES
OF PROSECUTORIAL MISCONDUCT WARRANTS A
REVERSAL OF MR. GOODEN'S CONVICTIONS. (Not
Raised Below).
POINT III
THE ADMISSION INTO EVIDENCE OF A HIGHLY
PREJUDICIAL PHOTOGRAPH [DE]PRIVED MR. GOODEN
OF A FAIR TRIAL.
POINT IV
THE TRIAL COURT'S OMISSION OF JURY CHARGES IN
SUPPORT OF MR. GOODEN'S DEFENSE VIOLATED HIS
RIGHTS TO DUE PROCESS AND 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 V
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Defendant also filed a pro se supplemental brief.3
3
The pro se brief lacks point headings, contrary to Rule 2:6-
2(a)(1), and is difficult to decipher, but we understand defendant
to contend the State failed to prove his guilt beyond a reasonable
doubt and the State obtained his buccal swab unlawfully.
4 A-5528-14T2
I.
We begin with defendant's contention the State wrongfully
implied he had a motive to commit robbery by repeatedly referring
to his welfare ID card and emphasizing his poverty. At trial,
both the prosecutor and defense counsel often referred to the card
found at the scene as a welfare ID.
As defense counsel did not object, we apply a plain error
standard of review, and determine whether "defendant [met] the
burden of proving that the error was clear and obvious and that
it affected his substantial rights." State v. Koskovitch, 168
N.J. 448, 529 (2001); see also State v. Williams, 168 N.J. 323,
336 (2001) (stating defendant must show "the error possessed a
clear capacity for producing an unjust result"); R. 2:10-2. Our
review "depends on an evaluation of the overall strength of the
State's case." State v. Nero, 195 N.J. 397, 407 (2008) (internal
quotation marks and citation omitted).
We are convinced there was no error, let alone plain error.
Prosecutors generally may not "use a defendant's poverty to
establish a criminal motive." State v. Stewart, 162 N.J. Super.
96, 100 (App. Div. 1978). Nor may they introduce "evidence
regarding whether or not a defendant has a regular source of income
. . . ." State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.),
certif. denied, 177 N.J. 577 (2003).
5 A-5528-14T2
However, the State did not refer to the welfare ID to
establish defendant's financial status, his motive to rob, or his
criminal intent. It was introduced to place defendant at the
crime scene. Defendant's failure to object undermines his newly
minted claim that the evidence was misused. See State v. Smith,
212 N.J. 365, 407 (2012) (noting that the defense counsel's failure
to make timely objections indicated no perceived prejudice), cert.
denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Since "'there [was] something more than poverty to tie' defendant
to the crime," we find no error. See State v. Zola, 112 N.J. 384,
428 (1988) (quoting Mathis, supra, 47 N.J. at 472).
II.
Also as a claim of plain error, defendant asserts the
prosecutor engaged in misconduct by: (1) relying on facts not in
evidence to garner sympathy for the victim; (2) denigrating
defendant; and (3) issuing a "call to arms" in her summation.
Well-settled principles guide our review. Prosecutorial
misconduct may compel reversal if it "was so egregious that it
deprived the defendant of a fair trial." State v. Frost, 158 N.J.
76, 83 (1999). More specifically, the conduct must be "clearly
and unmistakably improper, and must have substantially prejudiced
[the] defendant's fundamental right to have a jury fairly evaluate
the merits of his defense." State v. Smith, 167 N.J. 158, 181-82
6 A-5528-14T2
(2001) (internal quotation marks and citation omitted). We
consider three factors: "(1) whether defense counsel made timely
and proper objections to the improper remarks; (2) whether the
remarks were withdrawn promptly; and (3) whether the court ordered
the remarks stricken from the record and instructed the jury to
disregard them." Frost, supra, 158 N.J. at 83. The claimed
instances of misconduct do not meet the test.
During her opening, the prosecutor introduced Ruth to the
jury and explained the difficulties she might have testifying
against her attacker:
You should know coming into this
courtroom and confronting the defendant after
all these years is going to be difficult for
her. She dreads having to come here and sit
in that chair and explain to a courtroom full
of people about this horrible painful night
that she just as soon forget. [Ruth] has tried
to put the events of April 25, 2002 behind
her. She doesn't want to bring this all up
again. She's scared and she's embarrassed,
and understand she's never fully acknowledged
or accepted what happened to her that night.
Keep in mind during the course of this trial
the external factors that might be at play,
rely on your common sense and life experience
to tell you about cultural attitudes regarding
sexual assault.
We find no merit to defendant's argument that the prosecutor
argued facts not in evidence. As permitted, the prosecutor simply
presented an overview of facts she expected to present during
trial. See State v. Torres, 328 N.J. Super. 77, 95 (App. Div.
7 A-5528-14T2
2000) ("A prosecutor's opening statement should provide an outline
or roadmap of the State's case. It should be limited to a general
recital of what the State expects, in good faith, to prove by
competent evidence."). The State later elicited, through Ruth and
her ex-husband, the emotional toll the sexual assault had on Ruth
and her family. The State did not use Ruth to inflame the jury.
Unlike in State v. Pennington, 119 N.J. 547, 566-67 (1990), upon
which defendant relies, the prosecutor in this case did not place
significant emphasis on Ruth as a sympathetic character. She
merely described briefly the struggle Ruth, as a sexual assault
victim, might experience while testifying. The prosecutor asked
a single question about how the assault affected her marriage.
We also reject defendant's contention that the prosecutor
improperly called him a liar. She stated in opening:
You, the jury, are the trier of fact. Listen
carefully to all the witnesses. Use your
common sense. Does what a witness say ring
true? Does it make sense? Who has a motive
to fabricate? At the end of this trial, I'm
confident when you see and hear all the
evidence, you will be able to find the
defendant guilty on all counts.
Defendant again misplaces reliance on Pennington, in which "the
prosecutor called [the] defendant 'a jackal,' 'a stranger to
humanity,' 'a coward,' and someone with 'ice . . . where his heart
should be,'" and a "'liar [who] catches himself in his own coils
8 A-5528-14T2
. . . .'" Id. at 576-77. Such "[e]pithets [were] especially
egregious when . . . the prosecutor pursue[d] a persistent pattern
of misconduct throughout the trial." Id. at 577. Nothing of the
sort occurred here. The prosecutor simply invited the jury to
assess the weight and reliability of the testimony to come.
Finally, we decline to reverse the trial court based on
defendant's contention that the prosecutor issued an impermissible
"call to arms" that invited a verdict "based on partisanship and
outrage." She stated:
It's time, ladies and gentlemen of the
jury, it's time, it's time to end this once
and for all. It's been 13 long years. You
have the power. You can tell - - you can tell
[defendant] I know what you did to [Ruth] that
night. I know what you did to her on April
25, 2002. I know that you beat her, I know
that you sexually assaulted her, and I know
that you robbed her. You have the power. You
can tell him, find him guilty on all counts.
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the
scope of the evidence presented." Frost, supra, 158 N.J. at 82.
However, they may not issue a "call to arms," asking the jury to
"send a message" to the defendant and the public, since such
statements could "mislead a jury as to its role and duty," State
v. Hawk, 327 N.J. Super. 276, 282-83 (App. Div. 2000), and
"improperly divert jurors' attention from the facts of the case
9 A-5528-14T2
and intend to promote a sense of partnership with the jury that
is incompatible with the jury's function." State v. Neal, 361
N.J. Super. 522, 537 (App. Div. 2003).
Although forceful, the prosecutor's statement here was not
an inappropriate call to arms. The prosecutor did not imply the
jurors would violate their oaths if they failed to convict, see
Pennington, supra, 119 N.J. at 576, nor did she suggest the jury
had a societal duty to convict, Hawk, supra, 327 N.J. Super. at
282. Instead, when considered in context, the prosecutor urged
the jury to reach a verdict based on the evidence. Furthermore,
even assuming for argument's sake that the prosecutor's comment
crossed the line, it did not amount to plain error in light of the
substantial evidence of guilt. See State v. Feal, 194 N.J. 293,
313 (2008) (finding an improper prosecutorial statement was not
plain error based on the evidence of guilt).
III.
Defendant argues the trial court erred by admitting into
evidence, over his objection, a photograph of him from 2001 or
2002. The photo was not used in the photo array. Like the welfare
ID photo, it depicted defendant as a man in his twenties with
facial hair. Ruth testified that the man on the bus who attacked
her had facial hair. By the time of trial, defendant was in his
10 A-5528-14T2
forties. Overruling the defense objection, the trial court
explained:
I think the objection regarding whether or not
[the photograph] was used during the lineup
is not appropriate at this point. The
question in my mind is, was this photograph
obtained at or near the time of the offense
to identify the defendant. If that's the case
and that's the foundation, then the objection
would be overruled and the photograph may be
admitted into evidence subject to your further
inquiry about photo lineups that may be
testified to later.
Relying on N.J.R.E. 403, defendant argues the photo's
probative value was substantially outweighed by the risk of undue
prejudice, because it "misled the jury into believing that it was
more likely [defendant] committed the crime because he had facial
hair . . . ." We disagree.
We accord substantial deference to a trial court's
evidentiary rulings, see State v. Morton, 155 N.J. 383, 453 (1998),
and will overturn a N.J.R.E. 403 determination "[o]nly where there
is a clear error of judgment," State v. Covell, 157 N.J. 554, 569
(1999) (internal quotation marks and citation omitted). "[T]he
admission of photographs having some probative value, even where
cumulative and somewhat inflammatory, rests with the discretion
of the trial judge, whose ruling will not be overturned save for
abuse, as where logical relevance will unquestionably be
overwhelmed by the inherently prejudicial nature of the particular
11 A-5528-14T2
picture." State v. Conklin, 54 N.J. 540, 545 (1969) (internal
quotation marks and citation omitted).
The photograph here was neither inflammatory nor unduly
prejudicial. It put in perspective for the jury what defendant
looked like in 2001 or 2002, which was relevant given the lapse
of time between the crime and the trial.
IV.
Also raised as plain error, defendant contends the trial
court should have sua sponte delivered a jury instruction on third-
party guilt. Defendant relies on brief testimony that police
interviewed a man who was heard inquiring about the assault,
shortly after it occurred, at the casino where Ruth had worked.
The man did not fit Ruth's description of her attacker. The man
was thirty-nine, not in his twenties, and was a few inches shorter
than the attacker.
A defendant is entitled to introduce evidence of third-party
guilt if it "has a rational tendency to engender a reasonable
doubt with respect to an essential feature of the State's case."
State v. Cotto, 182 N.J. 316, 332 (2005) (internal quotation marks
and citations omitted). The defendant cannot simply present
evidence of "some hostile event and leave its connection with the
case to mere conjecture." State v. Sturdivant, 31 N.J. 165, 179
(1959). Instead, the defendant must demonstrate "'some link
12 A-5528-14T2
between the third-party and the victim or the crime.'" Cotto,
supra, 182 N.J. at 333 (quoting State v. Koedatich, 112 N.J. 225,
301 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L.
Ed. 2d 803 (1989)).
Aside from his inquisitiveness, no trial evidence connected
the other man to the assault. Furthermore, the State's scientific
expert testified that the chance anyone other than defendant
contributed to the DNA sample taken from Ruth was extremely remote.
Thus, the record did not justify, let alone compel, a third-party
guilt instruction.
V.
Finally, we discern no merit in defendant's challenge to his
sentence. The court found that aggravating factors three ("[t]he
risk that the defendant will commit another offense"); six ("[t]he
extent of the defendant's prior criminal record and the seriousness
of the offenses which he has been convicted"); and nine ("[t]he
need for deterring the defendant and others from violating the
law"), N.J.S.A. 2C:44-1(a)(3), (6), and (9), outweighed mitigating
factor six ("[t]he defendant has compensated or will compensate
the victim of his conduct for the damage or injury that he
sustained"), N.J.S.A. 2C:44-1(b)(6). The court gave aggravating
factor three "great weight" due to defendant's untreated mental
health condition, constant substance abuse, and anti-social
13 A-5528-14T2
tendencies; but the court placed "greatest weight" on factor six,
because of defendant's extensive adult and juvenile record, which
involved assault, weapons offenses, and criminal sexual contact,
and was "escalating rapidly and dangerously."
We discern no error in the court's rejection of defendant's
proffered mitigating factors. Noting that defendant chose not to
treat his known mental health conditions, the court declined to
find that defendant's mental illness constituted a "ground[]
tending to excuse or justify [his] conduct," N.J.S.A. 2C:44-
1(b)(4), or would render the hardship of imprisonment excessive.
N.J.S.A. 2C:44-1(b)(11).
In sum, we are satisfied that the court set forth its reasons
for defendant's sentence with sufficient clarity and
particularity, its findings were supported by the record, the
court correctly applied the Code's sentencing guidelines, and did
not abuse its substantial sentencing discretion. See State v.
Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165,
180-81 (2009); State v. Roth, 95 N.J. 334, 363-65 (1984).
VI.
Finally, the arguments presented in defendant's pro se brief
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
14 A-5528-14T2