STATE OF NEW JERSEY v. MATTHEW GONZALEZ (19-02-0385, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0991-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MATTHEW GONZALEZ,
a/k/a MATTHEW GONZALES,
Defendant-Appellant.
___________________________
Argued January 11, 2022 – Decided February 3, 2022
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 19-02-0385.
Brenden T. Shur argued the cause for appellant (Law
Offices of John J. Zarych, attorneys; John J. Zarych,
and Brenden T. Shur, on the brief).
Steven K. Cuttonaro, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Steven K. Cuttonaro, of
counsel and on the brief).
PER CURIAM
Defendant Matthew Gonzalez appeals from a December 4, 2020 judgment
of conviction, contending the trial court erred by: denying his pretrial motion
to sever two counts of a superseding indictment; and providing a jury instruction
on flight. He also argues the jury's verdict was against the weight of the
evidence. We affirm.
I.
On September 24, 2017, at approximately 3:00 p.m., Jason Williams
walked along wooded trails behind an apartment complex in Mays Landing.
When he stopped at a shed, he came across defendant, who appeared
"distraught" and "rattled" while speaking on the phone. Defendant was holding
a pistol and said, "if these guys want to roll up with guns or something, then
they're going to have problems."
Later that evening, at around 5:20 p.m., a crowd gathered outside the
apartment complex. One member of the crowd, Taufeeq Mitchell, was arguing
with a person later identified as defendant's brother. A fight broke out between
the two men and escalated to the point that over a dozen people were involved
in the brawl. Armed with a gun, defendant approached the group and fired
several shots into the crowd before retreating into the woods. Mitchell was shot
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twice and died of his wounds. Three other victims sustained non-fatal injuries
from their gunshot wounds.
Once police officers arrived on scene, some treated the victims, while
another officer obtained a surveillance camera from the area after seeing a
woman tear it off her home. The surveillance video the police recovered only
depicted what occurred a few hours before the shooting, but showed defendant
and his brother were in the area at that time. During their investigation, the
police learned the shooter was a tall, light-skinned Hispanic man wearing a light-
colored shirt and multicolored shorts.
Days later, when a detective from the Hamilton Township Police
Department returned to the scene and canvassed the trails behind the apartment
complex, he found a metal shed with a cot inside and a red ATV parked outside.
The vehicle was registered to defendant.
In November 2017, defendant met with an acquaintance, Zachary Bowen.
The pair discussed the September 24 shooting, and Bowen asked defendant if he
shot someone. Defendant answered, "yeah." At that time, the police were
looking for Bowen, but Bowen assured defendant he would not say anything. In
response to this promise, defendant shrugged, winked, and stated, "good, 'cause
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you don't know anything." Bowen understood this to mean he "better not say
anything."
In December 2017, Bowen was arrested on an unrelated matter and
provided a statement to the police regarding the shooting. He informed them he
was at the apartment complex on the day of the shooting, met defendant in the
woods behind the complex, and defendant appeared nervous. When Bowen had
asked defendant why he was nervous, defendant told him that "some shit just
happened." Not long after Bowen spoke to the police, defendant shaved his
beard and sent a picture of himself, clean-shaven, to his girlfriend. When she
asked him why he shaved, he replied, "[c]ops on me. . . . Got to look different."
In January 2018, defendant was arrested based on his suspected
involvement in the shooting. His car was searched, and a cellphone was
recovered. He was indicted in March 2018 and provided with discovery,
including statements from Bowen and Williams, both of whom implicated
defendant in the September 24 incident.
Defendant called a friend, David Ramirez, from a jailhouse phone and
ordered him to "stop messin" with Bowen because Bowen spoke to the police.
Defendant also called his girlfriend and told her that Bowen was "a straight-up
rat . . . [and] need[ed] to get stabbed up." In June 2018, defendant again called
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Ramirez. This time, he asked Ramirez to "persuade" Bowen "with some stuff."
In the same conversation, defendant referred to Bowen and "Jay," and told
Ramirez to "[c]heck" them and "[i]f they need to know what to say, just say they
was under pressure, you know what I mean?" Ramirez responded, "Yo, bro, you
shouldn't even be saying nothing over the phone."
By July 2018, Bowen was incarcerated in the same facility where
defendant was detained. Defendant approached Bowen while the two were in a
visitation area of the jail one day and defendant told Bowen, "[Y]ou're lucky I
don't fuck you up." He also warned Bowen that if he did not recant his statement
to the police, he would "get fucked up." Days later, Bowen recanted "for his
safety," explaining he "was scared." Months later, he reaffirmed his statement,
and approximately two months before the trial started, Bowen claimed defendant
threatened him again.
II.
In February 2019, an Atlantic County Grand Jury returned a superseding
indictment against defendant, which included charges from the original
indictment for first-degree murder, N.J.S.A. 2C:11-3(a) (count one); three
counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts two,
three, and four); second-degree possession of a firearm for an unlawful purpose,
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N.J.S.A. 2C:39-4(a)(1) (count five); and second-degree possession of a handgun
without a permit, N.J.S.A. 2C:39-5(b)(1) (count six), as well as two additional
charges, i.e., bribery of a witness, N.J.S.A. 2C:28-5(d) (count seven); and first-
degree witness tampering involving the crime of murder, N.J.S.A. 2C:28-5(a)(1)
(count eight).
Defendant filed a severance motion, requesting that counts seven and
eight be tried separately from the balance of the charges in the superseding
indictment. During argument on the motion, defense counsel claimed the
bribery and witness tampering "charges themselves are so prejudicial." She
represented that her concern about counts seven and eight "became more
heightened, because [the State intended to] us[e] a series of phone calls that . . .
[defendant] allegedly made from the jail to . . . David Ramirez, and to his
girlfriend[.]" Defense counsel also argued that
no matter what we do in terms of at least a piece of the
evidence that goes to the State's charge of witness
tampering, we can't avoid a jail reference . . . . [due to
the] alleged July 9[,] 2018 meeting between my client
and Zachary Bowen in the jail where my client
allegedly threatened him.
Referring again to the series of phone calls and the "alleged incident
between [defendant] and Zachary Bowen" at the jail, defense counsel added:
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I'm not arguing that that evidence wouldn't be
admissible, if the State were to bring these . . . charges
of witness tampering and attempted bribery alone . . . .
And at a trial on just those two counts, the State could
introduce that evidence, but those counts should be
severed to prevent any prejudice to my client.
She further contended defendant's incarceration was "not relevant to anything"
yet was "an integral part of the proofs to the State's witness tampering charge"
because the State intended to refer to "jail logs."
The State countered that the phone calls defendant made to Ramirez and
his girlfriend, as well as threats he made to Bowen while lodged in the same jail
facility, were "relevant to the defendant's state of mind because his conduct
demonstrate[d] consciousness of guilt." Further, the State argued the probative
value of the evidence demonstrating defendant's consciousness of guilt was not
outweighed by any prejudice to defendant.
The judge denied the severance motion, finding "[t]he evidence and the
charge of witness tampering and bribery go to the issue of whether there is
consciousness of guilt here." She also determined that the phone calls to be
introduced by the State could be "sanitized" so that "references to drugs, or
dealing drugs, or [defendant] being in jail won't come in." Regarding the alleged
threat defendant made to Bowen in July 2018, when the pair were held at the
same facility, the judge found "it's not possible to avoid the jail reference . . .
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for . . . the State to be able to provide the evidence that it has of that interaction."
But she
agree[d] with the State that juries aren't stupid, that
there are many ways that someone can find themselves
in jail. It's not unheard of that someone who is facing
a murder charge would be incarcerated pending the trial
of that charge. That does not mean that the defendant
is guilty[.] . . . And . . . a limiting instruction [to] the
jury that they're not to consider the fact that the
defendant was in jail when the statement was made,
should be sufficient. . . . [I]t is reasonable to expect
that the State would properly bring in that evidence in
order to prove that with the logs and the testimony of
the jail personnel as to that particular day.
At trial, the State called Bowen and other fact witnesses who were present
at the apartment complex on the day of the shooting. Bowen testified that on
that day, he met defendant in the woods behind the apartment complex and found
defendant on the phone. Bowen stated defendant appeared nervous, so he asked
defendant "what was going on." Defendant answered that Bowen should "get
out of [t]here" and that "some shit just happened[,]" prompting Bowen to leave
the area. Bowen stated he tried to get in touch with defendant thereafter, but
defendant's phone numbers were not "in service[.]" Further, Bowen testified he
and defendant met in person in November 2017, at which point defendant
admitted he shot someone during the September 24 incident.
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Bowen also stated defendant threatened him in July 2018, when the men
were detained at the same jail, telling Bowen he would "get fucked up" if he did
not recant his statements to the police. Bowen admitted he recanted his
statement days later because he was "scared." Moreover, Bowen testified that
after he reaffirmed his statement to the police, he received a message from
defendant approximately two months before the trial started, and Bowen
understood the message was meant to convey he "needed to take [his] statement
back again."
The State also played recordings of phone calls for the jury that defendant
placed while in jail, wherein he stated Bowen was a "rat" and needed to get
"stabbed up." Additionally, the State produced texts showing Bowen and
Williams were in communication with defendant on the day of the shooting, and
that defendant communicated with Bowen in November 2017, just days before
the two met in person.
When testimony ended, the judge conducted a charge conference pursuant
to Rule 1:8-7(b), and heard argument about whether to include a flight charge
in her instructions. Defense counsel contended the "mere departure from a place
where a crime has been committed d[id] not constitute flight[,]" nor was the fact
defendant changed his appearance by shaving his beard before his arrest
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sufficient to trigger a flight charge. The judge disagreed, finding that after the
shooting, there were a "multitude of indications that the defendant was fearing
an accusation and trying to stay away from the police and evading[,]" including
his changed appearance, and "texting that change of appearance . . . was to . . .
avoid the cops." Further, the judge observed there was a text recovered from
defendant's phone where he mentioned he did not get "stopped" after the
shooting. Moreover, she found defendant changed his phone numbers after the
shooting, had "multiple phone numbers," and fled "from the scene of the
shooting directly after it occurred." Thus, she concluded a "flight instruction
[wa]s appropriate."
The jury convicted defendant of: aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1) (a lesser-included offense of count one), second-degree
aggravated assault (count two), two counts of reckless aggravated assault,
N.J.S.A. 2C:12-1(b)(3) (lesser-included offenses of counts three and four),
second-degree possession of a weapon for an unlawful purpose (count five),
second-degree unlawful possession of a weapon without a permit (count six),
second-degree bribery of a witness (count seven); and first-degree witness
tampering (count eight). Defendant received an aggregate sentence of forty
years.
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III.
On appeal, defendant raises the following arguments:
I. THE COURT ERRED IN DENYING THE
DEFENDANT[']S MOTION TO SEVER THE
CHARGE OF WITNESS TAMPERING BECAUSE
THE DEFENDANT WAS OVERLY PREJUDICED.
II. THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE. (Not raised below).
III. THE LOWER COURT ERRED WHEN ALLOWING
THE CHARGE OF FLIGHT TO BE INCLUDED IN
JURY INSTRUCTIONS.
We find these arguments unavailing.
Regarding defendant's Point I, our Rules provide that "[t]wo or more
offenses may be charged in the same indictment or accusation in a separate count
for each offense if the offenses charged are of the same or a similar character[.]"
R. 3:7-6. The court may, however, "order an election or separate trials of counts,
grant a severance of defendants, or direct other appropriate relief" where "it
appears that a defendant . . . is prejudiced by a permissible or mandatory joinder
of offenses . . . in an indictment[.]" R. 3:15-2(b). The decision to grant or deny
a motion to sever is within the trial court's sound discretion. State v. Morton,
155 N.J. 383, 452 (1998). We must "defer to the trial court's decision, absent
an abuse of discretion." State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
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A mere claim of prejudice is insufficient to support a motion to sever.
State v. Moore, 113 N.J. 239, 274 (1988). Also, a defendant is not entitled to
severance simply because he or she believes a separate trial "would offer . . . a
better chance of acquittal." State v. Johnson, 274 N.J. Super. 137, 151 (App.
Div. 1994) (quoting State v. Morales, 138 N.J. Super. 225, 231 (App. Div.
1975)).
"The test is whether the evidence from one offense would have been
admissible N.J.R.E. 404(b) evidence in the trial of the other offense, because
'[i]f the evidence would be admissible at both trials, then . . . a defendant will
not suffer any more prejudice in a joint trial than he would in separate
trials.'" State v. Sterling, 215 N.J. 65, 98 (2013) (quoting Chenique-Puey, 145
N.J. at 341).
N.J.R.E. 404(b) bars the admission of other-crimes evidence "to prove a
person's disposition in order to show that . . . the person acted in conformity
with such disposition." Other-crimes evidence is, however, admissible "for
other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident when such matters are
relevant to a material issue in dispute." Ibid. "[S]ensitive admissibility rulings
regarding other-crimes evidence made pursuant to Rule 404(b) are reversed
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'[o]nly where there is a clear error of judgment." State v. Green, 236 N.J. 71,
81 (2018) (quoting State v. Rose, 206 N.J. 141, 157-58 (2011)).
The party seeking to introduce other-crimes evidence must satisfy the four
prongs enunciated in State v. Cofield. 127 N.J. 328, 338 (1992). Under Cofield,
1. [t]he evidence of the other crime must be admissible
as relevant to a material issue;
2. [i]t must be similar in kind and reasonably close in
time to the offense charged;
3. [t]he evidence of the other crime must be clear and
convincing; and
4. [t]he probative value of the evidence must not be
outweighed by its apparent prejudice.
[Ibid.]
Regarding the first Cofield prong, all relevant evidence is admissible
unless excluded by other rules. State v. Scharf, 225 N.J. 547, 569 (2016) (citing
N.J.R.E. 402). The threshold is met "[o]nce a logical relevancy can be found to
bridge the evidence offered and a consequential issue in the case." State v. Cole,
229 N.J. 430, 448 (2017) (quoting State v. Burr, 195 N.J. 119, 127 (2008)).
The Supreme Court has recognized the relevance of post-crime conduct
where it demonstrates consciousness of guilt. State v. Williams, 190 N.J. 114,
125-26 (2007). Post-crime consciousness of guilt supports "a logical connection
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to a desired inference about mental state in specific and non-specific intent
crimes." Id. at 128. Here, because the other-crimes evidence was relevant to
prove defendant's consciousness of guilt, we are persuaded the judge properly
found the State satisfied the first Cofield prong.
Application of the second Cofield prong is confined to cases that are
similar to the facts outlined in Cofield. See Williams, 190 N.J. at 131.
Accordingly, we see no need to discuss this prong further, except to note
defendant's threats to Bowen while incarcerated, and the phone calls he placed
to his girlfriend and Ramirez about Bowen, were reasonably close in time to
when defendant was indicted, and were related to his prosecution for the charged
offenses. See State v. Goodman, 415 N.J. Super. 210, 233 (App. Div. 2010)
(finding the second Cofield prong to be satisfied where the other-crimes
evidence was "contemporaneous and directly related to [the defendant's]
prosecution[.]")
As to the third Cofield prong, we are persuaded the judge correctly found
the other-crimes evidence was clear and convincing. Not only did the State
produce recordings of defendant's phone calls to his girlfriend and Ramirez, but
Bowen's statement that he and defendant were incarcerated together in July 2018
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when defendant threatened Bowen was borne out by the jail logs the State
possessed.
As to the fourth Cofield prong, we disagree with defendant's contention
that the probative value of the other-crimes evidence was outweighed by its
prejudice to defendant. Here, the judge correctly decided that the phone calls
defendant made from the jail to Ramirez and his girlfriend would come in only
so "long as they are sanitized." She also stated she would, and did, provide a
limiting instruction to jurors so that they did not "consider the fact that the
defendant was in jail when the statement [to Bowen] was made" during the July
2018 confrontation. Indeed, during the trial, the judge told the jurors:
[Y]ou have heard some testimony and you're going to
hear testimony from the time during which defendant,
Matthew Gonzalez, was incarcerated. The fact that Mr.
Gonzalez was incarcerated at any time should not enter
into your discussions or your deliberations in any
manner, as any incarceration is not evidence of guilt,
and you, the jury, decide whether the State has proven
the defendant's guilt of the charges beyond a reasonable
doubt.
The judge issued a similar instruction in her final charge. It is presumed that
jurors followed these instructions. See State v. Burns, 192 N.J. 312, 335 (2007).
As our Supreme Court indicated in Rose, a reference to a defendant's prior
incarceration may only be "prejudicial in the way that all highly probative
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evidence is prejudicial: because it tends to prove a material issue in dispute. "
206 N.J. at 164. Here, given the care taken by the judge to minimize prejudice
to defendant while admitting the other-crimes evidence, we are satisfied any
limited reference to his incarceration was not unduly prejudicial such that it
caused jurors to convict defendant on improper grounds. In fact, the jury chose
not to convict defendant on his most severe charges — murder and two counts
of aggravated assault — opting instead to find him guilty of aggravated
manslaughter and reckless aggravated assault. Accordingly, considering the
State satisfied each Cofield prong, the judge did not abuse her discretion in
denying defendant's severance motion.
Turning to Point II, we decline to overturn defendant's conviction on the
grounds the jury's verdict was against the weight of the evidence. "In . . .
criminal actions, the issue of whether a jury verdict was against the weight of
the evidence shall not be cognizable on appeal unless a motion for a new trial
on that ground was made in the trial court." R. 2:10-1. Also, a jury verdict
should stand if, "based on the entirety of the evidence and after giving the State
the benefit of all its favorable testimony and all the favorable inferences drawn
from that testimony, a reasonable jury could find guilt beyond a reasonable
doubt." State v. Williams, 218 N.J. 576, 594 (2014). Further, a verdict should
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not be set aside unless it is clearly and convincingly shown there was a
miscarriage of justice. State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.
1985). Where a jury's verdict rests upon the assessment of witness credibility,
we "may not intercede, absent clear evidence on the face of the record that the
jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App.
Div. 1993) (citing State v. Haines, 20 N.J. 438, 446-47 (1956)).
Here, defendant concedes he did not move for a new trial. Hence, his
claim is not cognizable on appeal. R. 2:10-1. Even if it were, the claim would
have no merit, despite defendant's contention the State's witnesses provided
"several conflicting statements" from the day of the shooting to when they
testified at trial. For example, defendant argues Bowen "changed his story on
every occasion where it was beneficial for him to do so." But the defense had
the opportunity to cross-examine Bowen and other witnesses about any
inconsistencies in their statements. Also, the State presented significant
evidence showing Bowen changed his story in response to defendant's threats.
Additionally, the State produced proofs to corroborate the testimony of its
witnesses, such as surveillance video from the day of the shooting and texts
extracted from cell phones. Thus, we perceive no reason to disturb the jury's
verdict.
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Regarding Point III, defendant contends the judge should not have
included a flight instruction in her charges. Again, we disagree.
"[A]ppropriate and proper [jury] charges are essential for a fair trial."
State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Reddish, 181 N.J. 553,
613 (2004)). "The trial court must give 'a comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find.'" Ibid. (quoting State v. Green, 86 N.J. 281,
287-88 (1981)). "Because proper jury instructions are essential to a fair trial,
'erroneous instructions on material points are presumed to' possess the capacity
to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J.
534, 541-42 (2004)).
We apply a harmless error analysis where a defendant objects to a charge.
Ibid.; see also R. 2:10-2. "Under that standard, there must 'be some degree of
possibility that [the error] led to an unjust result. The possibility must be real,
one sufficient to raise a reasonable doubt as to whether [it] led the jury to a
verdict it otherwise might not have reached.'" Ibid. (alterations in original)
(quoting State v. Lazo, 209 N.J. 9, 26 (2012)).
It is well established that flight is "a type of post-crime conduct that can
demonstrate consciousness of guilt." Williams, 190 N.J. at 125. Therefore,
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"evidence of flight occurring after the commission of an offense has been held
probative of guilt and admissible." Id. at 125-26. To be admissible, evidence
of flight must be "intrinsically indicative of a consciousness of guilt[,]" but need
not "unequivocally support a reasonable inference" of the defendant's guilt.
State v. Randolph, 228 N.J. 566, 595 (2017) (quoting State v. Randolph, 441
N.J. Super. 533, 562-63 (App. Div. 2015)).
A jury instruction on flight is appropriate where a jury could find there
was a departure by the defendant and the motive for the departure was "an
attempt to avoid arrest or prosecution." State v. Mann, 132 N.J. 410, 421 (1993).
Here, the judge concluded it was fitting to instruct the jury on flight because
there was a "multitude of indications that the defendant was fearing an
accusation and trying to stay away from the police and evading." She
highlighted that after the shooting, defendant changed his appearance by shaving
his beard, and he explained to his girlfriend that he did so because "cops [were]
on [him]" and he "[g]ot to look different." Further, the judge noted "[t]he
changing of [defendant's] phone numbers" and that he fled from the scene after
the shooting. Although defendant argues, as he did before the trial court, that
he did not evade police, as evidenced by the fact he "did not use a false name"
when he was hospitalized in October 2017, and the "police were aware of his
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presence in the hospital[,]" the record reflects defendant changed his appearance
in the months following his hospital stay, after admitting to Bowen he shot
someone. Therefore, we are not convinced the judge erred in providing the jury
with a flight instruction.
In sum, we are not persuaded the judge improperly denied defendant's
severance motion or that she mistakenly provided the jury with a flight
instruction. Additionally, we decline to conclude the jury's verdict was against
the weight of the evidence.
Affirmed.
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