State v. Gobel

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER J. GOBEL…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: May 30, 2014

DOCKET NO. A-1895-12T2 (App. Div. May. 30, 2014)

Opinion

DOCKET NO. A-1895-12T2

05-30-2014

STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER J. GOBEL, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Union County Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Harris and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-04-0462.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Union County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief. PER CURIAM

Tried by a jury, defendant Peter J. Gobel appeals from the October 19, 2012 judgment of conviction for second-degree eluding, N.J.S.A. 2C:29-2(b). We affirm.

I.

On January 31, 2011, Union County Police Officer Kenneth Dalrymple was on duty in Linden when he observed a 1995 Ford Mustang make "several illegal lane changes without signaling." After receiving information that the vehicle belonged to Gobel, and that Gobel's driving privileges appeared to have been suspended, Dalrymple attempted to stop the Mustang. After positioning his police car behind the Mustang, Dalrymple activated his emergency lights, which initially resulted in the Mustang pulling over to the right side of the highway. However, instead of stopping, the Mustang made a right turn onto Pleasant Street and then "accelerated away at a high rate of speed."

Dalrymple turned on his siren to give the Mustang's driver "a couple of blasts of the siren . . . [a] couple of chirps . . . just to make sure [the driver] knew who was behind him." The police officer then "took off at a high rate of speed after it" with both the siren and emergency lights of the police vehicle operating.

During the ensuing chase, Dalrymple observed the Mustang drive at speeds over the posted speed limit, pass other vehicles on the wrong side of the highway, ignore a red traffic signal and stop sign, and almost lose control. At one point, the Mustang entered an uncontrolled 360-degree spin, at which time Dalrymple observed the driver and one passenger in the front seat. At trial, Dalrymple identified the operator of the Mustang as Gobel.

Later, for safety reasons, Dalrymple terminated the highspeed pursuit. The next day, Dalrymple and other police officers went to Gobel's dwelling in Linden to arrest him. After being invited inside by Gobel's brother, Dalrymple was taken down a staircase where he encountered a woman who Dalrymple recognized as the passenger in the Mustang from the day earlier. This individual was Gobel's sister, Christy Gobel.

After walking into a downstairs bedroom, Dalrymple observed an individual lying on the bed, and "the mattress on the one side was bumped up, not level." The individual was removed from the bed and the mattress lifted. Underneath, Dalrymple found Gobel who was immediately arrested.

At trial, Gobel elected not to testify. However, Christy Gobel testified that at the time of the high-speed chase, when she supposedly was alongside her brother rushing away from the police, she was actually shopping elsewhere with a friend. She adamantly denied being in a Mustang that eluded the police.

On cross-examination, Christy Goble acknowledged that, although she was present when her brother was arrested on February 1, 2011, she knew the reasons why he was arrested, she never contacted the police to explain her absence from the Mustang.

Mark Raynor testified as a State's witness. Gobel and Raynor were cousins, and Raynor's appearance was similar to Gobel's. Raynor denied being the driver of the Mustang on January 31, 2011. Raynor further indicated that Gobel had asked him to come to court and "show support." The following exchange was presented to the jury:

[Prosecutor]: And why did he ask you to come?
[Raynor]: Just to be — you know, the opportunity of it being somebody else was driving the car.
[Prosecutor]: Okay. What do you mean by that? Explain.
[Raynor]: You know, being that we — similar look alike. It could have been me driving the car. I could have been one of our other cousins, brother, something like that being that we all kind of look similar.
[Prosecutor]: And he asked — he said that to you?
[Raynor]: Yes.

Later during the trial, Raynor was called as a defense witness. At that time, Raynor denied that Gobel had asked him to attend the trial "so that the [j]ury would think that [Raynor] did it." Instead, Raynor claimed that he came to court "just to observe and for moral support."

II.

On appeal, Gobel raises the following points for our consideration:

POINT I: DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE PROSECUTOR'S ALLUSIONS TO MS. GOBEL'S FAILURE TO TALK TO THE POLICE DURING HIS CROSS-EXAMINATION AND SUMMATION VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT TO SILENCE. (RAISED IN PART BELOW AND NOT RAISED BELOW).
POINT II: DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE PREJUDICE RESULTING FROM OFFICER DALRYMPLE'S INADMISSIBLE TESTIMONY THAT DEFENDANT'S DRIVER'S LICENSE WAS SUSPENDED WAS NOT AMELIORATED BY THE TRIAL COURT'S "LIMITING INSTRUCTION."
POINT III: DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE PROSECUTOR IMPROPERLY ACCUSED TRIAL COUNSEL OF TRYING TO DECEIVE THE JURY BY OFFERING TAILORED TESTIMONY. (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT'S "CHOCOLATE CAKE" CIRCUMSTANTIAL EVIDENCE CHARGE WAS BIASED TOWARDS CONVICTION AND UNDERMINED DEFENDANT'S PRESUMPTION OF INNOCENCE. (NOT RAISED BELOW).
POINT V: THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION. (NOT RAISED BELOW).
POINT VI: THE 9 YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE.

Based upon our review of the entire record, we conclude that there are no trial defects that warrant reversal. Furthermore, the sentence that was imposed, while severe, is both unremarkable and unexceptionable.

II.

Gobel's first contention is that the State engaged in misconduct when it presented evidence to the jury that Christy Gobel failed to tell the police that she was not a passenger in the Mustang. He suggests that this impinged upon his constitutional right not to testify, even though the possessor of the evidence was his sister. We do not agree.

"It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J. 442, 456 (2008). "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005). However, that privilege was not violated in this case.

Christy Gobel's testimony, if believed by the jury, would have severely eroded the Dalrymple's credibility and his identification of Gobel as the Mustang's driver. Thus, a full frontal challenge to Christy Gobel's credibility — including the circumstances of her non-disclosure of exculpatory information about her brother — was fair game. The State's tactic was not to adversely comment upon Gobel's silence, but instead was an attempt to undermine the believability of Gobel's alibi-like witness, his sister. We detect nothing amiss in this conduct, and nothing that would warrant a new trial.

Gobel next complains that he was entitled to a mistrial when Dalrymple erringly testified that Gobel's driving privileges had been suspended. Prior to Dalrymple's testimony, the trial court had ruled that the State could not elicit testimony about the putative suspension. Nevertheless, within seconds of commencing Dalrymple's testimony, the following exchange occurred:

[Prosecutor]: And when you observed that black [M]ustang make the lane changes without signaling, what did you do?
[Dalrymple]: I entered the [license] plate number . . . into my mobile computer system in the vehicle.
[Prosecutor]: And when you entered that, what happened?
[Dalrymple]: It — DMV response returned that the vehicle's owner was suspended.

Defense counsel objected, and the trial court immediately told the jury the following:

Ladies and gentlemen, that — that is stricken. That is hearsay. Unless there's an exception to the Rule, you can't consider that. Remember when I strike something, you can't consider it in your deliberations. So, the fact that the Motor Vehicle Records
indicated that the defendant was suspended, cannot be used by you.

Later, defense counsel formally moved for a mistrial, which was denied because the trial court believed that its curative instruction was an appropriate and immediate response.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court," which we will not disturb "absent an abuse of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997). For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a "clear showing" that "the defendant suffered actual harm" or that the court otherwise "abused its discretion." State v. LaBrutto, 114 N.J. 187, 207 (1989). Furthermore, when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was "clearly capable of producing an unjust result." See R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002) (holding that improper admission of hearsay warranted new trial because it was "clearly capable of producing an unjust result") (internal quotations omitted). We do not believe the trial court abused its discretion at all.

Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial, are matters "peculiarly within the competence of the trial judge." State v. Winter, 96 N.J. 640, 647 (1984). The curative instruction given in this case, which was immediately proffered by the trial court, was both appropriate and adequate to the task. Juries are generally presumed to understand and follow instructions, State v. Loftin, 146 N.J. 295, 390 (1996), including curative instructions in the absence of evidence to the contrary. Winter, supra, 96 N.J. at 649. There is no contrary evidence here. The mistrial motion was properly denied.

Gobel further argues that the State improperly commented upon Raynor's testimony and its relationship to Gobel's alleged consciousness of guilt. Gobel further takes issue with the State's reference to Raynor's meeting with Gobel's defense attorneys, suggesting that Raynor's second stint of testifying was improperly influenced by that meeting. None of these claims has merit.

The State did not portray Gobel as tailoring testimony. Indeed, Gobel did not testify. Rather, the State's commentary was merely a direct challenge to Raynor's alternating explanation for why he was in court. "A tailoring allegation is a claim that a witness has adapted his testimony to conform to other evidence that has been produced during a trial." State v. Feal, 194 N.J. 293, 305 (2008) (emphasis original). Claiming that a defendant tailored his or her testimony to conform to the facts testified by other witnesses is a violation of that defendant's constitutional rights, State v. Daniels, 182 N.J. 80, 97-98 (2004), as it undermines a defendant's right to a fair trial. Id. at 98. Evaluating this issue under the lens of plain error, R. 2:10-2, we are unable to conclude that the State's comment was "clearly capable of producing an unjust result." State v. Rose, 206 N.J. 141, 157 (2011). Furthermore, the record does not fairly support the claim that the State's tactic suggested that Gobel's defense team or Gobel's family engaged in inappropriate conduct by meeting with Raynor after his first round of testimony.

We lastly address Gobel's contention that his sentence is manifestly excessive. In imposing the nine-year term for second-degree eluding, the trial court found that aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9), outweighed mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), as warranting the sentence at the high end of the second-degree range. Those findings are adequately supported in the record.

Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). If the sentencing judge identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). We are loath to second-guess a sentence that adheres to the applicable guidelines, see, e.g., State v. Bieniek, 200 N.J. 601, 608, 612 (2010), and only modify a sentence if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Here, the manner of imposing the sentence and its duration are entirely consistent with sentencing jurisprudence. Finding neither an abuse of discretion nor anything that is conscience shocking, we have no basis to adjust the sentence.

Gobel's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION