STATE OF NEW JERSEY VS. MATTHEW D. ROLLE(15-07-0387, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5239-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW D. ROLLE, a/k/a
DASHAUN CHEEKS,

Defendant-Appellant.
______________________________

Submitted August 8, 2017 – Decided August 15, 2017

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 15-
07-0387.

Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Derrick Diaz,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Tried by a jury, defendant Matthew D. Rolle was found guilty

of two counts of second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), by causing and attempting to cause bodily injury to two

separate victims, C.H. and C.H.'s mother, R.H.1 The jury also

found defendant guilty of two counts of third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(2), with respect to the same two

victims. Lastly, the jury found defendant guilty of third-degree

possession of a weapon (described as "a knife or machete type

object") for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The

jury acquitted defendant of two charged counts of attempted murder.

After merging several of the convictions, the trial court

imposed on defendant an extended-term custodial sentence of

seventeen years for the aggravated assault of C.H., plus a

consecutive custodial sentence of nine years for the aggravated

assault of R.H. Both sentences are subject to the parole

ineligibility consequences of the No Early Release Act, N.J.S.A.

2C:43-7.2 ("NERA"). The court further imposed a concurrent

sixteen-month custodial sentence for the third-degree weapons

conviction. In addition, the court imposed customary penalties

and other conditions.

On appeal, defendant raises two points in his brief:

POINT I

1
We use initials to protect the victims' privacy interests.

2 A-5239-15T4
 THE TRIAL COURT ERRED BY FAILING TO INSTRUCT
THE JURY THAT THE PRIOR INCONSISTENT
STATEMENTS MADE BY KEY WITNESSES WERE
ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not
Raised Below).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE.

We affirm.

The underlying offenses arise from an incident in which

defendant, accompanied by two other men, physically attacked first

C.H., and then R.H., on the evening of March 16, 2015 in Penns

Grove. According to the testimony of the State's witnesses, C.H.

and R.H. were passengers in a car. The car passed the three men,

who were wearing dark hoodies, walking down the street outside of

the residence of the driver's grandmother. C.H. asked the driver

to turn the car around to see what was going on. As the car pulled

up, C.H. recognized defendant, whom he had known for eight or nine

years, and whom R.H. had taken care of for about two years.

According to C.H., defendant told him that he and the other

men were waiting for "beats" from the car driver's brother.2 C.H.

told defendant to leave, and that he would not be getting any

2
As noted in C.H.'s testimony, the term "beats" apparently is
slang associated in some manner with music.

3 A-5239-15T4
"beats." C.H. got out of the car and began to talk with the two

other men.

At that point, defendant struck C.H. multiple times in the

back of his head and face with a hard object, causing C.H. to

briefly lose consciousness. Meanwhile, R.H., having seen her son

get hit, got out of the car and yelled at defendant to stop. At

that point, defendant hit R.H. in the head with apparently the

same hard object he had used to strike her son. R.H. fell to the

ground and the three men ran away.

The car driver took C.H. and R.H. to a local hospital

emergency room. Because of the nature of his injuries, C.H. was

taken from the local hospital by helicopter to the trauma unit at

Cooper Hospital in Camden. Meanwhile, R.H. was treated locally

for an injury to her ear and then was driven to Cooper Hospital,

where she remained for three days.

While being treated at the hospital, both C.H. and R.H.

initially declined to speak with the police. According to C.H.,

he did not agree to be interviewed at that time because of his

serious injuries. Those injuries included, among other things, a

skull fracture and jaw fracture that were surgically addressed,

and the insertion of a breathing tube. Surgeons wired C.H.'s

mouth shut. R.H., who had a skull fracture and multiple

lacerations herself, also initially declined to be interviewed by

4 A-5239-15T4
the police because, as she later explained, she was more concerned

at that time about her son.

On the day after the assaults, as her condition stabilized,

R.H. gave an interview to the police. During that interview, she

positively identified defendant as the attacker, who was

subsequently charged and arrested. C.H. also eventually agreed

to be interviewed by the police, providing them with information

that supported defendant's arrest and prosecution.

At trial, the State presented testimony from both victims,

who detailed the attacks and inculpated defendant. The State also

presented testimony from various police witnesses who described

the steps they took in the investigation. The investigation

revealed copious amounts of blood on the sidewalk at the location

of the reported attacks. The State also presented testimony from

the attending trauma surgeon at Cooper Hospital. The surgeon

recounted that C.H. had suffered multiple fractures of his face

and jaw, a skull fracture, and a neck laceration. The doctor

opined that those fractures were consistent with blunt trauma, of

a kind that would occur when a person is hit with a hard object.

The doctor also testified how he had treated R.H. for multiple

lacerations, a skull fracture, and an intracranial hemorrhage.

Defendant did not testify on his own behalf, nor did he

present any witnesses.

5 A-5239-15T4
 I.

In his first point on appeal, defendant argues that the jury

charge was incomplete, a contention he did not raise below.

Specifically, defendant argues that the trial court should have

instructed the jurors that the failure of both C.H. and R.H. to

provide the police initially with statements incriminating him

must be treated as substantive evidence in his favor. In

particular, defendant contends that the victims' initial refusals

to speak with the police, which his trial counsel brought out in

cross-examination and in closing argument, amount to "prior

inconsistent statements" admissible under N.J.R.E. 803(a)(1). He

therefore claims these refusals to speak supports an evidential

inference that defendant was not, in fact, the person who attacked

them. Defendant maintains that, although it was not requested,

the trial judge should have issued the model jury charge to the

jury relating to the substantive use of prior inconsistent

statements. See Model Jury Charges (Criminal), "Prior

Contradictory Statements of Witnesses (Not Defendant)" (1994),

http://www.judiciary.state.nj.us/attorneys/assets/

criminalcharges/non2c019.pdf.

We evaluate defendant's newly-minted argument criticizing the

jury charge under a plain error standard of review. R. 1:7-2; R.

2:10-2; State v. Singleton, 211 N.J. 157, 182-83 (2012). Under

6 A-5239-15T4
that standard, an appellate court will not set aside a guilty

verdict because of the omission of an unrequested jury charge

unless the defendant on appeal demonstrates that the omission was

"sufficiently grievous" and has a "clear capacity to bring about

an unjust result." Ibid. (internal quotations omitted). We

recognize, however, that when a jury instruction was clearly

indicated by the trial record, such an omission is a "poor

candidate" for the harmless error rule. State v. Weeks, 107 N.J.

396, 410 (1987) (citing State v. Warren, 104 N.J. 571 (1986);

State v. Crisantos, 102 N.J. 265 (1986)).

Aside from its belated nature, defendant's argument about the

victims' initial silence is fundamentally flawed on the merits.

Defendant's appellate counsel attempts to draw analogies with

situations in which a witness affirmatively gave an earlier

narrative of events to the police but left out certain details

that were later expressed in his or her trial testimony. By

contrast, the present situation concerns two victims who initially

declined to provide any statements whatsoever to the police. Their

reluctance to do so, given what was occurring, is understandable.

C.H. was suffering from a serious brain injury and other

medical traumas that required emergency surgery. He lost

consciousness both at the scene of the attacks and again at the

hospital. His jaw was wired shut. He certainly had a legitimate

7 A-5239-15T4
reason to defer any interview with the police until he had

sufficiently recovered to speak with them. Likewise, R.H.,

although she did not lose consciousness and did not undergo

surgery, had more than ample reason to postpone an interview with

the police while she was naturally concerned about the immediate

welfare of her son.

Neither C.H. nor R.H. provided, by their temporary silence,

any substantive prior inconsistent "statement" that warranted the

special jury charge now being advocated by defendant. The cases

cited in defendant's brief to support his argument are unavailing.

For example, in State v. Hammond, 338 N.J. Super. 330 (App. Div.),

certif. denied, 169 N.J. 609 (2001), we held that the model jury

instruction on the substantive use of prior inconsistent

statements was not warranted where the witnesses' pre-trial

account did not involve "conflicting versions" of the events, but

was instead a "mere blanket denial of any knowledge of the

crime[.]" Id. at 342-43. As such, the witnesses' prior

inconsistent statements lacked "any significant exculpatory

value[.]" Id. at 343. None of the other cases cited by defendant

compel a different result here. We therefore discern no error,

much less plain error, in the omission of the jury charge.

II.

8 A-5239-15T4
 Defendant's second argument is that his aggregate twenty-six

year custodial NERA sentence is unduly punitive. He further

asserts that the sentencing judge did not adequately justify

imposing consecutive sentences for the two aggravated assaults,

and did not provide a sufficient analysis for relying in part on

aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). We

disagree.

As the trial judge recognized, the imposition of consecutive

sentences in this case are easily justified by defendant's brutal

attacks upon two separate victims. State v. Yarbough, 100 N.J.

627, 634-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193,

89 L. Ed. 2d 308 (1986). In addition, the judge did not abuse his

discretion in imposing an extended custodial term pursuant to

N.J.S.A. 2C:44-3. State v. Pierce, 188 N.J. 155, 166, 169-70

(2006) (applying an abuse-of-discretion appellate review standard

to extended term sentences). Defendant clearly was eligible for

an extended term as a persistent offender because of his adult

criminal history, which included a litany of multiple offenses and

violations of probation.

Moreover, although the judge conceivably could have been more

specific in his explanation of why aggravating factor nine applied,

the need to deter this defendant is manifest from record and

requires no remand for further elaboration. Cf. State v. Fuentes,

9 A-5239-15T4
217 N.J. 57, 75 (2014) (generally encouraging sentencing courts

to specify their reasons for finding discrete aggravating and

mitigating factors). The aggregate sentence is appropriately

lengthy for the very serious crimes that were committed, and do

not "'shock[] the judicial conscience." State v. Bieniek, 200

N.J. 601, 612 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).

Affirmed.

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