Opinion
DOCKET NO. A-0510-11T3 DOCKET NO. A-1585-12T3
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FULGENCIO GONZALEZ-MONASTERIO, a/k/a FULGENCIO G. MONASTERIO, DANIEL CRUZ, FOLENCEO GONZALEZ, WILFREDO GONZALEZ, FULGENCIO GONZALEZMONASTERIO, DAVID MENDEZ, FULGENCIO MONASTERIO, FULGENCIO MONESTESIO, FULGENZIA O. GONSALEZ, and FOLENCO GONZALEZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. BERNARDO MARTINEZ, a/k/a BERNALDO MARTINEZ, and ODILON VELASQUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Fulgencio Gonzalez-Monasterio (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Bernardo Martinez (M. Virginia Barta, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian J. Uzdavinis, Deputy Attorney General, of counsel and on the briefs). Appellant Fulgencio Gonzalez-Monasterio filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0895. Joseph E. Krakora, Public Defender, attorney for appellant Fulgencio Gonzalez-Monasterio (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Bernardo Martinez (M. Virginia Barta, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian J. Uzdavinis, Deputy Attorney General, of counsel and on the briefs). Appellant Fulgencio Gonzalez-Monasterio filed a pro se supplemental brief. PER CURIAM
Defendants Fulgencio Gonzalez-Monasterio and Bernardo Martinez were tried before a jury and were each found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). They both appeal from judgments of conviction entered on June 15, 2011. We reverse and remand for entry of judgments of acquittal on the tampering convictions, and retrial of the remaining convictions.
I.
We discern the following facts from the trial record. On June 22, 2008, Perth Amboy Police Detective Jessica DeJesus received a call from an individual, C.J., who reported observing blood on a Raritan River pier in Perth Amboy. The location was frequented by homeless persons who lived in the abandoned properties nearby. DeJesus and two other detectives, along with C.J., proceeded to the pier. There, they found dried blood, with drag marks leading towards the waterline. Several footprints followed the blood stains.
Defendants were charged under Middlesex County Indictment No. 09-05-0895, with first-degree murder, N.J.S.A. 2C:11-3a (Count One); third-degree hindering apprehension by suppressing evidence, N.J.S.A. 2C:29-3a(3), b(1) (Count Two); third-degree hindering apprehension by giving false information, N.J.S.A. 2C:29-3a(7), b(4) (Count Three); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (Count Four).
In this opinion, other than law enforcement witnesses, we refer to witnesses by their initials instead of their full names.
A search of the river by the police marine unit found the body of Jesus Ramirez, a twenty-eight-year-old man. His body was bruised, with blood coming from his nose. He had three knife wounds to his chest. He wore a shirt with holes corresponding with the knife wounds.
The medical examiner later determined that Ramirez had been in good shape, and had no drugs in his system, but had a blood alcohol level of 0.37. He testified that the stab wounds would have required significant force with a "thick bladed knife," and that Ramirez had one defensive cut on his right forearm. Ramirez also had signs indicating "six separate impacts to the head[,]" inflicted while he was still alive, and consistent with strikes from a fist. There was no water in his stomach or lungs, indicating that he was dead before his body entered the river. The medical examiner estimated that Ramirez died between 2:00 a.m. and 4:30 a.m. on the morning of June 22, 2008, although he allowed that it may have been as early as 1:00 a.m. or as late as 5:30 a.m.
Near the pier, the police found two hats and a black canvas bag. The bag contained clothing, a toothbrush, sheets, and some jewelry. The police later discovered Ramirez's blood on both hats. They also found a heavily bloodstained, extra-large gray sleeveless shirt with a blue logo, and a brown dress shirt with a Playboy logo. There were numerous empty beer cans scattered around the area.
After speaking to J.C. and J.M., two local residents who spent time around the pier, police focused their investigation on Gonzalez-Monasterio and Martinez. The police found Gonzalez-Monasterio, and he agreed to accompany them to the station to answer questions. Gonzalez-Monasterio waived his Miranda rights. The subsequent interview was video-recorded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Gonzalez-Monasterio stated that he was still wearing the same pants he had worn the previous evening, and that he believed he was still wearing the same shirt. Although the police did not initially observe any injuries on his face, hands, or arms, he had fresh scratches under his shirt. Gonzalez-Monasterio explained that he fell down the stairs earlier that week, and revealed older scratches and bruises on his back, hips, and knee. He declined consent to allow the police to photograph his body, saying that he was "too fat."
Meanwhile, police searched Gonzalez-Monasterio's home, with the consent of his wife, I.C., where I.C. provided police with blue pants, a maroon shirt, and boots, which she said her husband had worn the previous night. There was a large brown stain on the front of the pants, as well as stains on the top and sides of the boots, which later proved to be Ramirez's blood.
The police also spoke to I.C., who later testified for the State at trial. She stated that she had dropped off her husband in the afternoon to go fishing and that she regularly fished at the pier with her husband and Martinez. I.C. eventually returned to pick up her husband after 2:30 a.m. He was drunk, and Martinez was helping him walk. She dropped Martinez off, and then drove home, arriving by 4:30 a.m. According to I.C., her husband had been wearing the blue pants and maroon shirt recovered from their home, and the bloodstained sleeveless shirt recovered from the scene was not his.
The police located Martinez that same evening. He was extremely intoxicated, and agreed to accompany DeJesus to the police station to answer some questions. He was neither arrested nor handcuffed, and he fell asleep at the station.
The police first spoke to Martinez at 1:00 a.m. on June 23, 2008. He was sitting unrestrained in an open waiting area normally used for domestic violence victims and witnesses, and had not yet been read his Miranda rights, or charged with any crime. The police had provided him with some food and coffee to help him sober up. Martinez denied knowing Gonzalez-Monasterio by any of his nicknames, and denied spending any time with him the previous night, or witnessing a murder. Martinez consented to a police search of his home. During this search they recovered boots with stains on the tops and sides. These stains on Martinez's boots also later tested positive for Ramirez's blood.
Then, at 3:30 a.m., the police brought Martinez into an interrogation room for a video-recorded interview and read him his Miranda rights. When asked if he would talk to the police, Martinez responded, "[W]hy not? . . . [Y]ou can help me too . . . . [Y]ou can give me an attorney." Nevertheless, the police proceeded to question Martinez without clarification.
Martinez stated that he had gone to the pier to drink in the late morning, and that he had been with Gonzalez-Monasterio during the afternoon. He denied seeing Gonzalez-Monasterio fight with Ramirez, or seeing any blood at the pier. He also denied receiving a ride home from I.C. When confronted about the bloodstains on his boots, he expressed surprise, and said, "I don't think so." Martinez said that he had left the pier and returned home around 7:00 p.m. He stated that he went with a friend, J.O., to purchase beer at 2:00 a.m.
Police later spoke to J.O. When asked whether he went to a liquor store with Martinez, he answered, "Not that I remember," and reported that Martinez had awoken him sometime after midnight and slept on J.O.'s sofa. J.O. testified to the same account at trial.
Finally, the police spoke again with J.C., who also testified for the State at trial. He claimed he had been at the pier drinking with Ramirez and Martinez, but left shortly after Gonzalez-Monasterio arrived. According to J.C., both Ramirez and Gonzalez-Monasterio had been wearing baseball caps. When shown a photograph of one of the hats recovered from the scene, J.C. indicated it was Ramirez's hat. He also stated that the black canvas bag belonged to Ramirez. He was unable to describe or identify Gonzalez-Monasterio's hat.
At trial, J.C. testified that Gonzalez-Monasterio had been wearing a white, zippered sweater and gray T-shirt with some lettering on the chest and a blue design. He identified the bloodstained shirt found at the scene as the T-shirt. However, J.C. admitted he first told police about the clothing two years after the incident. Moreover, he only remembered the clothes after the police showed him a photo of the shirt recovered from the scene. Regarding J.C.'s identification of the T-shirt, the interviewing investigator later testified that he was certain that J.C. first described the T-shirt worn by Gonzalez-Monasterio, and then later identified it as a match to the one in the photo.
DNA testing of the collar and armpits of the sleeveless shirt, as well as the sweatbands of the baseball caps, proved inconclusive. Similarly, the police were unable to generate any DNA profiles from the dress shirt recovered from the scene. Two of the footprints at the scene were consistent with Martinez's boots. The remainder of the footprints were inconclusive. Although the police recovered numerous knives throughout the investigation, none tested positive for Ramirez's blood.
According to the State's DNA expert, one knife, recovered from Martinez' home, had "human DNA" on the blade, but the expert was unable to generate a DNA profile.
At trial, the State presented testimony from DeJesus, as well as several police investigators, forensic scientists, and the medical examiner. While J.O., J.C., and I.C. testified for the State, C.J. and J.M. did not. Neither defendant testified.
After twelve days of trial, the jury returned a verdict on April 4, 2011, finding both defendants guilty of the lesser-included offense of aggravated manslaughter, as well as both counts of hindering apprehension, and tampering with evidence. On June 14, 2011, the trial court sentenced Gonzalez-Monasterio to an aggregate term of twenty-eight years of incarceration, with approximately twenty years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced Martinez to twenty-five years of incarceration, with approximately eighteen years of parole ineligibility pursuant to NERA. These appeals followed.
In the brief filed by counsel, Gonzalez-Monasterio argues:
POINT I
WHERE THE PROSECUTION OF DEFENDANT PROCEEDED ON AN ACCOMPLICE THEORY OF LIABILITY BECAUSE
THERE WAS ALMOST NO EVIDENCE FROM WHICH TO DISCERN WHICH DEFENDANT COMMITTED WHICH ACT, THE COURT ERRED WHEN IT FAILED TO SUA SPONTE INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT, WHICH DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT II
DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED BY THE INTRODUCTION OF TESTIMONY AND ARGUMENT THAT THE POLICE BEGAN TO FOCUS THEIR INVESTIGATION ON DEFENDANT "AFTER . . . SPEAKING TO PEOPLE," WHICH SUGGESTED THAT THEY HELD EXTRA-RECORD EVIDENCE OF DEFENDANT'S GUILT.
POINT III
THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY INCORRECTLY TOLD JURORS THAT TO CONVICT DEFENDANT AS AN ACCOMPLICE TO AGGRAVATED MANSLAUGHTER, THEY WOULD HAVE TO FIND "THAT THE DEFENDANT'S PURPOSE WAS TO PROMOTE OR FACILITATE THE COMMISSION OF" AGGRAVATED MANSLAUGHTER, WHICH IS A LEGAL IMPOSSIBILITY AND CONTRARY TO STATE v. BRIDGES ; THE RESULT IS THAT THE JURY COULD ONLY HAVE RETURNED A GUILTY VERDICT ON AGGRAVATED MANSLAUGHTER THROUGH CONFUSION, AND NOT A PRINCIPLED APPLICATION OF THE LAW TO THE FACTS OF THE CASE. (Not Raised Below).
POINT IV
THE COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE ON THE HINDERING APPREHENSION CONVICTION BECAUSE IT WAS PART AND PARCEL OF THE HOMICIDE.
254 N.J. Super. 541 (App. Div. 1992), aff'd in part, rev'd in part, 133 N.J. 447 (1993).
Gonzalez-Monasterio has filed a pro se supplemental letter brief in which he raises the following argument:
APPELLANT CHALLENGES THE TRIAL COURT SENTENCING IMPOSITION TO MIS-APPLICATION OF THE NO EARLY RELEASE ACT, AGGRAVATING FACTORS IMPOSED, CONVICTION MUST BE VACATED FOR LACK OF PROOF OF AGGRAVATING CIRCUMSTANCES SINCE APPELLANT HAS NO PRIOR CONVICTIONS OF SIMILAR NATURE, WAS INELIGIBLE FOR A 85% INELIGIBILITY, INFERS TO FALSE IMPRISONMENT AND A PAST DUE EXPIRATION OF SENTENCE UNDER THE GRAVES ACT[.] (Not Raised Below).
Counsel for Martinez has filed a brief in which he raises the following issues:
POINT I
DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL CONFRONTATION RIGHTS WERE VIOLATED BY TESTIMONY AND ARGUMENT THAT "AFTER SPEAKING TO PEOPLE," THE POLICE [FOCUSED] ON THE TWO DEFENDANTS, [THEREBY] SUGGESTING THAT NON-TESTIFYING WITNESSES HAD IMPLICATED DEFENDANT IN THE CRIME.
POINT II
WHERE THE PROSECUTION PROCEEDED ON AN ACCOMPLICE LIABILITY THEORY BECAUSE THERE WAS ALMOST NO EVIDENCE FROM WHICH TO DISCERN WHICH DEFENDANT COMMITTED THE ACT, THE COURT ERRED WHEN IT FAILED TO SUA SPONTE CHARGE LESSER-INCLUDED AGGRAVATED ASSAULT OFFENSES, THEREBY DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT III
THE ACCOMPLICE LIABILITY CHARGE ERRONEOUSLY TOLD THE JURY THAT TO CONVICT DEFENDANT AS AN ACCOMPLICE TO A RECKLESS HOMICIDE, IT HAD TO FIND THAT DEFENDANT'S PURPOSE WAS TO COMMIT THE RECKLESS OFFENSE, THUS DEPRIVING
DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
POINT IV
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT IF IT BELIEVED DEFENDANT ONLY HELPED TO THROW THE BODY IN THE WATER, IT COULD NOT CONVICT HIM AS AN ACCOMPLICE TO A HOMICIDE, PARTICULARLY WHERE THE PROSECUTOR ARGUED THAT DISPOSING OF THE BODY MADE DEFENDANT AN ACCOMPLICE LIABILITY. (Partially Raised Below).
POINT V
DEFENDANT'S HINDERING CONVICTIONS MUST BE REVERSED BECAUSE THE COURT FAILED TO RELATE THE INTOXICATION DEFENSE TO THE HINDERING OFFENSES. (Not Raised Below).
POINT VI
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS HIS STATEMENT, WHERE THE RECORD DEMONSTRATES THAT DEFENDANT EXPRESSED A DESIRE FOR AN ATTORNEY THAT WAS NOT SCRUPULOUSLY HONORED BY THE POLICE. (Not Raised Below).
POINT VII
THE COURT ERRED IN FINDING THAT DEFENDANT WAS NOT IN CUSTODY AND IN ADMITTING HIS STATEMENTS MADE WITHOUT MIRANDA WARNINGS, THUS VIOLATING HIS FEDERAL AND STATE RIGHTS AGAINST SELF-INCRIMINATION AND WARRANTING REVERSAL OF HIS CONVICTIONS.
POINT VIII
DEFENDANT'S CONVICTION FOR TAMPERING MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE AN ELEMENT OF THE OFFENSE. (Not Raised Below).
POINT IX
THE SENTENCE IMPOSED FOR AGGRAVATED MANSLAUGHTER IS EXCESSIVE, AND THE CONSECUTIVE TERM FOR HINDERING VIOLATES THE PRINCIPLES OF STATE V. YARBOUGH, 100 [N.J.]
627 (1985), [cert. denied] 475 [U.S.] 1016 (1986).
POINT X
THE MATTER MUST BE REMANDED TO CORRECT AN ERROR IN THE JUDGMENT OF CONVICTION.
II.
We begin by addressing Martinez's argument that his statements should have been suppressed as they were obtained in violation of his rights against self-incrimination. When reviewing a decision on a suppression motion, we "engage in a searching and critical review of the record to ensure protection of a defendant's constitutional rights." State v. Hreha, 217 N.J. 368, 381-82 (2014) (citation and internal quotation marks omitted). We "defer to the trial court's credibility and factual findings" so long as they "'are supported by sufficient credible evidence in the record.'" Id. at 382 (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, we give no deference to legal conclusions. Ibid.
Generally, a defendant's statements given during custodial interrogation are only admissible if police first read defendant his or her Miranda rights. A defendant may then waive these rights, however, the "waiver must be 'voluntary, knowing, and intelligent.'" Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). The State bears the burden of proving, beyond a reasonable doubt, that a defendant's prior statements are admissible. Id. at 383. If the State demonstrates either that the defendant was not in custody, State v. Carlucci, 217 N.J. 129, 144 (2014), or that the statements were not elicited in response to interrogation, State v. Stever, 107 N.J. 543, 552-53, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987), then the statements may be admitted.
Martinez argues that the trial court incorrectly found he was not in custody when he first spoke to the police and gave consent to search his home. When the State began to introduce these statements, Martinez objected, and the court held a hearing to determine whether Martinez was in custody at the time. The State presented testimony from Sergeant Eleazar Ricardo, the interviewing investigator, and Martinez did not testify. After summarizing the facts, the trial court applied "the objective reasonable [person] test," and denied the motion, finding that Martinez "was not in custody because an objective reasonable person under the circumstances described here would not reasonably believe that he was not free to leave."
The predicate condition for the police requirement to administer Miranda warnings is whether the defendant was in custody. State v. P.Z., 152 N.J. 86, 102 (1997). Custodial interrogation occurs when a law enforcement officer initiates questioning after a person has been taken into police custody "'or otherwise deprived of his freedom of action in any significant way.'" State v. O'Neal, 190 N.J. 601, 615 (2007) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).
A person may be "in custody" for purposes of determining whether he or she is entitled to a Miranda warning irrespective of whether there has been a formal arrest, the existence of physical restraints, or whether the interrogation occurred in the suspect's home, a public place, or a police station. P.Z., supra, 152 N.J. at 103. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Ibid.
Custody is an objective determination. Carlucci, supra, 217 N.J. at 144. A defendant is in custody if "a reasonable person in defendant's position, based on the nature of the police encounter, would not have believed that he [or she] was free to leave." O'Neal, supra, 190 N.J. at 616.
In this case, the trial court applied the incorrect legal standard in determining that Martinez was not in custody when the police first questioned him at 1:00 a.m. The court erroneously viewed the evidence under an "objective reasonable [person] test," rather than the correct standard, which requires "an objective determination, based on 'how a reasonable [person] in the suspect's position would have understood his situation.'" Carlucci, supra, 217 N.J. at 144 (alteration in original) (emphasis added) (quoting Berkemer v. McCarty, 4 68 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984)).
Thus, in determining whether Martinez would have believed he was free to leave, the court should have examined the circumstances from the perspective of a reasonable person in Martinez's position. The court failed to address the undisputed evidence that Martinez had been taken to the police station while he was so intoxicated that the police had declined to question him, that he had been sleeping there for approximately seven hours, and that he had awoken to find himself in the presence of police officers. The court accepted the State's assertion that Martinez was in an area generally used for domestic violence witnesses; however, no such witnesses were present at that time, so Martinez was unlikely to have realized that fact.
Sergeant Ricardo's claim that Martinez was free to leave did not render that assertion objectively true. A statement by police that a defendant is free to leave, even when made directly to the suspect at the time of the interrogation, "is 'not a talisman in whose presence the [Fifth] Amendment fades away and disappears.'" State v. Stott, 171 N.J. 343, 368 (2002) (alteration in original) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971)). Instead, the circumstances here suggest that the police may have questioned Martinez to elicit incriminating evidence, and only provided Miranda warnings once that evidence was obtained. Our Supreme Court has roundly condemned the use of a "two-step, 'question-first, warn-later' interrogation" as "a technique devised to undermine both the efficacy of Miranda and our state law privilege." State v. O'Neill, 193 N.J. 148, 180 (2007).
We conclude that the trial court failed to apply the appropriate standard to determine the admissibility of Martinez's pre-Miranda statement to the police. Because we are reversing for other reasons, on remand, Martinez shall be permitted to make a new pre-trial motion for the trial court to consider his motion under the correct legal standard.
On a related issue, Martinez argues that he was provided ineffective assistance of counsel through the failure to make a motion to suppress his recorded statement. As our decision to reverse and remand will provide Martinez with the opportunity to move to suppress his recorded statement before retrial, this issue is moot, and we need not decide it here.
We briefly note that, while his statement, "[Y]ou can help me too. . . . [Y]ou can give me an attorney[,]" constitutes an ambiguous invocation of the right to counsel, State v. Alston, 204 N.J. 614, 623-24 (2011), trial strategy may have lead Martinez's counsel to not object to the admission of the statement. Accordingly, at retrial, the court shall allow Martinez to either move to suppress the recorded statement or knowingly and voluntarily waive his right to file such a motion on the record. Finally, we note that requests for consent to search do not invoke Miranda protections. Stever, supra, 107 N.J. at 553. As we see no indication that Martinez's consent to search his home was involuntary or coerced, we see no error in admitting the evidence found as a result of Martinez's consent. See State v. Lamb, 218 N.J. 300, 315 (2014) (noting that "consent must be voluntarily given and not the result of duress or coercion").
For example, counsel may have concluded that the videotaped statement, which contained no confession of guilt, presented an opportunity for the jury to see and hear Martinez's denials of any involvement in the crime without subjecting him to cross-examination.
III.
We next address defendants' tampering with evidence convictions as it relates to Martinez's argument that his conviction must be vacated because the State failed to prove an element of the crime. Martinez argues that this conviction must be vacated because the State failed to prove that he tampered with evidence while he believed that an official proceeding was pending or about to be instituted.
We acknowledge that Gonzalez-Monasterio did not raise this issue below or on appeal, but due to the nature of Martinez's argument, we consider it relating to both defendants. See R. 2:10-2 (stating that an "appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court").
Neither Martinez nor Gonzalez-Monasterio raised this issue in the trial court. Rule 2:10-1 provides that 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." However, "we can proceed to the merits, if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993); R. 2:10-2.
We review the jury verdict for a clear "miscarriage of justice under the law." R. 2:10-1. "We must determine whether, 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).
As explained in the jury instructions, defendants were charged in Count Four with evidence tampering based on the allegation that each "defendant . . . concealed or removed the body of Jesus Ramirez or the knife." Regarding this charge, N.J.S.A. 2C:28-6 provides, in relevant part:
A person commits a crime of the fourth degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) Alters, destroys, conceals or removes any article, object, record, document or other thing of physical substance with purpose to impair its verity or availability in such proceeding or investigation[.]
[(Emphasis added).]
In State v. D.A., 191 N.J. 158, 162 (2007), our Supreme Court considered this issue in the context of N.J.S.A. 2C:28-5, which contains identical language, pertaining to witness tampering. A person commits that offense "if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to" testify falsely, withhold information, elude legal process, or absent himself from a proceeding to which he has been legally summoned. N.J.S.A. 2C:28-5a.
In D.A., the defendant threatened a witness to his sexual assault of a thirteen-year-old girl. D.A., supra, 191 N.J. at 162. The Court reversed the defendant's witness tampering conviction, finding that "there was no evidence adduced before the jury to suggest that defendant was aware of any facts that would lead him to believe that an official proceeding was pending or about to be instituted." Id. at 171.
Here, even giving the State the benefit of all favorable inferences, there was no evidence to suggest that when either defendant concealed or removed the body of Jesus Ramirez or the knife, they were aware "that an official proceeding or investigation [was] pending or about to be instituted," N.J.S.A. 2C:28-6. Moreover, neither defendant had any opportunity to tamper with the evidence after they became aware of police involvement. Therefore, defendants' convictions for tampering must be reversed, and judgments of acquittal must be entered in their favor on Count Four.
While Gonzalez-Monasterio did not raise this issue, since the evidence against him on this charge was equally deficient, we conclude that reversal of his conviction of the tampering with evidence charge is required to avoid "a miscarriage of justice under the law." R. 2:10-1.
IV.
We next address defendants' arguments regarding errors in the jury charge. We review unchallenged jury charges for plain error, and will reverse if an error was "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Walker, 203 N.J. 73, 89 (2010). We consider the error "in light of the entire charge" and evaluate the prejudice "in light of the overall strength of the State's case." Walker, supra, 203 N.J. at 90 (citation and internal quotation marks omitted). However, "'because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are poor candidates for rehabilitation under the plain error theory.'" Ibid. (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
Both defendants argue that the court's instruction on accomplice liability for reckless manslaughter was plain error because it improperly required the jury to find that the accomplice shared the principal's purpose and intent to commit reckless manslaughter, which they argue is impossible, and which was contrary to the Appellate Division's holding in Bridges, supra, 254 N.J. Super. 541. We agree.
In Bridges, we examined the "apparent conundrum" of applying conspiracy and accomplice liability principles to impose vicarious liability upon a defendant for crimes based on recklessness. Id. at 563-66. The problem was "how one can intend a reckless act." Id. at 563.
We concluded that, for purposes of liability as either an accomplice or co-conspirator,
imposition of vicarious liability for a crime whose culpability requirement is recklessness requires an initial focus on the actor's conduct rather than on the crime itself. As a first condition, the accomplice or conspirator must have intended that the actor's conduct take place, i.e., that the accomplice or conspirator had the purpose of promoting or facilitating the commission of that conduct by the actor and took some step or steps, as stipulated by either N.J.S.A. 2C:2-6b(3) or 2C:5-2 as applicable, in order actually to promote or facilitate that conduct. Once the conduct is committed, the actor's liability therefor will depend on his, the actor's, state of mind. If purposeful or knowing, the actor may be liable for an "intent" crime. If the actor's state of mind was not purposeful or knowing but was rather comprehended by the definition of reckless of N.J.S.A. 2C:2-2b(3) and if the conduct was the cause of the ensuing criminal result within the intendment of N.J.S.A. 2C:2-3c, the actor may be liable for a "reckless" crime.
[Id. at 565 (footnotes omitted).]
With respect to the principles for evaluating liability for lesser-included crimes, we said:
If the actor is liable for a "reckless" crime, vicarious liability for that crime or
a lesser-included "reckless" crime may attach to an accomplice or conspirator who purposely promoted or facilitated the actor's conduct; who was aware when he did so, considering the circumstances then known to him, that the criminal result was a substantial and justifiable risk of that conduct; and who nevertheless promoted that conduct in conscious disregard of that risk. . . . Vicarious liability for a "reckless" crime may also, however, attach when the actor commits an "intent" crime and the accomplice or conspirator did not intend that that crime be committed but nevertheless intended that the actor take a specific action or actions which resulted in the crime. If criminal liability for the criminal result of that conduct can be predicated on a reckless state of mind, an accomplice or co-conspirator can be vicariously liable for that "reckless" crime under the same principles which apply where the actor's culpability is also based on recklessness. This is so even if the actor himself [or herself] is guilty of an "intent" crime. The point . . . is that each participant in a common plan may participate therein with a different state of mind. The liability of each participant for any ensuing crime is dependent on his own state of mind, not on anyone else's.
[Id. at 566.]
The New Jersey Supreme Court rejected this formulation of vicarious liability for a co-conspirator and reversed that part of the decision. State v. Bridges, 133 N.J. 447, 452-67 (1993). However, as we recognized in Bielkiewicz, "[a]lthough the Supreme Court disagreed with our conclusion that the liability of an alleged co-conspirator is governed by these same principles, it did not disagree with our discussion of accomplice liability as applied to murder and the lesser included offenses of aggravated manslaughter and manslaughter." State v. Bielkiewicz, 267 N.J. Super. 520, 529-30 (App. Div. 1993) (citation omitted). We affirmed the applicability of the principles stated in Bridges for accomplice liability for murder and its lesser-included offenses. Ibid.
The jury charge in this case repeatedly instructed the jury to determine whether the defendant's purpose was to promote or facilitate the commission of manslaughter, which required the culpable state of mind of recklessness. Instead, the charge should have focused the jury's deliberations on whether the defendant intended the accomplice's conduct. That omission was especially prejudicial here because the court never provided the jury with the means to determine what view of the facts could support a finding of guilt for aggravated or reckless manslaughter (or, indeed, any of the crimes).
Additionally, the court erroneously read the jury the language from N.J.S.A. 2C:2-3 regarding causation, rather than the appropriate causation instructions from the model jury charges on murder and manslaughter. The supplemental charge included irrelevant language that pertained to criminal negligence and transferred intent. This part of the charge was erroneous in several respects.
First, the supplemental charge improperly instructed the jury that it could convict a defendant if the "actual result" was "within the risk of which the actor . . . in the case of criminal negligence, of which he should be aware[.]" But defendants had not been charged with any crime based on a negligent state of mind. It was plain error to provide the jury with the option to convict either defendant based on a negligent state of mind that required only that "the actual result must be within the risk of . . . which he should be aware," which is a far lower standard than the one applicable to the murder and manslaughter crimes for which they were tried.
A defendant may be convicted of manslaughter only if the actual result was "within the risk of which the actor is aware . . . ." N.J.S.A. 2C:2-3c (emphasis added). The jurors should have been instructed in the language of the model jury charges for manslaughter, which states that "death must have been within the risk of which the defendant was aware." Model Jury Charge (Criminal), "Aggravated Manslaughter" (2004); Model Jury Charge (Criminal), "Reckless Manslaughter" (2004) (emphasis added).
Second, the final paragraph of the court's supplemental charge, taken from N.J.S.A. 2C:2-3d, pertained solely to the doctrine of transferred intent, which was not an issue in this case. See In re State ex rel. A.D., 212 N.J. 200, 222-23 (2012) (describing the purpose of our Criminal Code's transferred intent doctrine). That language is not part of the model jury charges on causation for murder or manslaughter. Cf. Model Jury Charge (Criminal), "Aggravated Manslaughter" (2004); Model Jury Charge (Criminal), "Reckless Manslaughter" (2004). In light of the State's acknowledgment that it could not prove which defendant stabbed the victim, this instruction erroneously permitted the jury to apply principles of transferred intent, rather than accomplice liability.
The jury was never provided with the portion of the causation instruction that the State was required to prove beyond a reasonable doubt that the victim's death was not so unexpected or unusual that it would be unjust to find the defendant guilty of murder. Moreover, the provision of this erroneous supplemental charge on causation outside the context of the elements of the crime, and with no attempt to relate the instruction to the facts alleged at trial, could only have confused the jury.
Furthermore, it also was plain error for the court to instruct the jury that it could apply accomplice liability principles to all of the charges, including hindering apprehension, which is predicated on the defendant's own obstruction of justice, rather than his or her vicarious liability for the underlying crime committed by a principal actor. In addition, after setting forth the elements of aggravated and reckless manslaughter, and correctly informing the jury that intoxication was not a defense to those crimes, the court never referred to the intoxication defense again or instructed the jury that it was a defense to the hindering charges in Counts Two and Three (or to the evidence tampering charge in Count Four). It was plain error for the court not to inform the jury that it could consider intoxication as a defense to the hindering charges.
A conviction for hindering apprehension requires that a jury find the defendant acted "with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another" or himself. N.J.S.A. 2C:29-3a, b. Voluntary intoxication is a defense to any crime that requires a purposeful or knowing state of mind. N.J.S.A. 2C:2-8a; State v. Cameron, 104 N.J. 42, 51-53 (1986); State v. R.T., 411 N.J. Super. 35, 46 (App. Div. 2009), aff'd, 205 N.J. 493 (2011).
Although the jury acquitted both defendants of murder, this does not lessen the impropriety of the court's charge. While there was ample evidence by which a jury could find that both defendants were somehow involved in the crime, very little of that evidence pointed to their direct participation or established who did what. Under those circumstances, the court's incomplete jury instructions were clearly capable of producing an unjust result.
As the State relied heavily upon the accomplice theory of liability, and as the jury found both defendants guilty of aggravated manslaughter, the trial court's accomplice liability instructions had a clear capacity of producing an unjust result. Therefore, we reverse the remaining convictions and remand for retrial.
Additionally, while we discern no plain error in the trial court's failure to instruct the jury on aggravated assault as a lesser-included crime of murder, defendants may request such instruction on remand. We leave the applicability of such an instruction to the trial court's consideration of the new trial record.
Our review of the facts adduced at the trial do not "'clearly indicate'" that the charge was warranted. State v. Walton, 368 N.J. Super. 298, 307 (App. Div. 2004) (quoting State v. Savage, 172 N.J. 374, 397 (2002)).
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V.
We next turn to defendants' argument that the trial court improperly admitted hearsay evidence from non-testifying witnesses that implicated defendants. The Sixth Amendment to the Federal Constitution guarantees a criminal defendant's right to confront his or her accusers. State v. Weaver, 219 N.J. 131, 151 (2014). Nevertheless, out-of-court statements that are not admitted for the truth of the matter asserted are not hearsay, and are generally admissible. N.J.R.E. 802; State v. Branch, 182 N.J. 338, 357 (2005).
A police officer's explanation that he or she approached a suspect "upon information received" is admissible to rebut a suggestion that the officer was acting in an arbitrary manner. State v. Bankston, 63 N.J. 263, 268 (1973). However, the officer's explanation cannot create "the inescapable inference that a non-testifying declarant provided information that implicated the defendant in the crime." Branch, supra, 182 N.J. at 351. Testimony that implicates a defendant is only admissible if the defendant "opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive." Id. at 352.
"When evidence is admitted that contravenes not only the hearsay rule but also a constitutional right, [we] must determine whether the error impacted the verdict." Weaver, supra, 219 N.J. at 154. Under this harmless error standard, we disregard errors that were "'harmless beyond a reasonable doubt.'" Ibid. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)). "'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" Bankston, supra, 63 N.J. at 273 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173 (1963)).
Here, the State in its opening statement said that:
[C.J.] overheard some men talking about something that happened on that pier. . . .Then, on direct examination, DeJesus began to state, "[C.J.] stated that he had overheard . . . ." Defendants objected, and the State rephrased the question to omit C.J.'s hearsay statements. At sidebar, it later became apparent that C.J. "overheard" a conversation between J.C. and J.M.
. . . .
. . . There were no eyewitnesses who observed the events that led up to the stabbing. There was no one to acknowledge that they saw this murder or what led up to this murder.
Although none of the witnesses saw the attack[,] after conducting an investigation, speaking to people, the police began to focus on the two defendants . . . .
Still on direct examination, the State asked, "As a result of what [C.J.] told you[,] what did you do?" DeJesus began to reply, "We responded back to his home where there [were] the same individuals from early on in the day that were . . . ." Defendants objected again. At sidebar, the State proffered that DeJesus returned to C.J.'s house, where she spoke to J.C. and J.M., "conducted an investigation, and the next thing they did they focused on [defendants]." Defendants argued that the hearsay statements were unnecessary, and the State argued that the statements were necessary to explain why police focused on defendants. The trial court asked whether the out-of-court statements "pointed the finger" at defendants, and the State answered that J.M.'s statements did through hearsay, but that the State would avoid eliciting that portion.
The trial court admitted the out-of-court statements on the State's assurance, and the testimony proceeded:
Q As a result of what [C.J.] told you[,] what did you do?
A We responded to [C.J.'s house] where there were several individuals there that we wanted to speak to regarding the incident and that they had possible information as to what had happened the night before.
Q Did you meet two individuals?
A Yes.
Q What were their names?
A We spoke with [J.C.] and a [J.M.].
Q Did you interview them?
A Yes.
. . . .
Q After speaking to these two individuals you still had no eyewitnesses to the stabbing, is that correct?Defendants renewed their objections, anticipating that the State would ask what DeJesus did after speaking to J.M. and J.C. The court found that relating the investigation as a series of events did not create a direct inference that the out-of-court statements implicated defendants and therefore did not sustain the objection.
A Yes.
Q Neither one of these individuals observed the stabbing or could shed any light on the stabbing, is that correct, in terms of who actually did it?
A No.
Q In terms of being eyewitnesses, is that correct?
A Yes.
At the next day of trial, the State reaffirmed with DeJesus that she had interviewed J.M. and J.C. after having been directed to them by C.J. Then, the State asked:
Q Now, after you questioned them and as a result of your continuing investigation[,] did you focus on two people?
A Yes.
Q Finding two people I should say?
A Yes.
Q Who were those two people?Defendants requested that the trial court note their ongoing objection for the record.
A That was . . . Martinez and [Gonzalez-]Monasterio.
The out-of-court statements were referenced again during the direct examination of another investigator:
Q Can you tell us . . . the first thing you did to assist in this investigation?Defendants again objected. The State indicated its intent to produce J.C. to testify. The trial court found that any inference that J.C. implicated defendants could be cured by J.C.'s testimony, and again declined to sustain the objection.
A After we spoke to [J.C.,] and after the investigation[,] we started to look for [Gonzales-Monasterio].
Eventually, the State called J.C., who recounted that he had seen defendants with Ramirez on the afternoon prior to Ramirez's death. Defendants were able to cross-examine J.C. with the transcript of his June 22, 2008 statement to DeJesus. However, neither C.J. nor J.M. testified.
Although a recitation of objective fact, the State created an "inescapable inference" that J.C. and J.M. "provided information that implicated . . . defendant[s] in the crime" by repeatedly juxtaposing the conversation with J.C. and J.M. with the police's focus on defendants. Branch, supra, 182 N.J. at 351. The State's use of the phrase "as a result of [the] continuing investigation" does not effectively disguise the inference. Moreover, the State's emphasis that police never discovered any eyewitnesses does not negate the inference that police obtained non-eyewitness hearsay implicating defendants.
By offering testimony directly from J.C., the State cured any Confrontation Clause defects with respect to his out-of-court statements. Additionally, J.C.'s testimony constituted non-hearsay evidence elucidating how police came to focus on defendants. Nevertheless, the testimony did not lessen the inference that police received additional information from other witnesses, and from J.M. in particular. Accordingly, the improper inference of "incriminating statements [by] a faceless accuser who remains in the shadows" persisted. Id. at 348.
As we are otherwise reversing and remanding for a new trial based upon flawed jury instructions, we need not address whether the trial court's error was "harmless beyond a reasonable doubt." Weaver, supra, 219 N.J. at 154 (citation and internal quotation marks omitted). However, we caution that on remand the State should avoid creating the improper inference that non-testifying witnesses provided incriminating information to the police. See Branch, supra, 182 N.J. at 348.
Since the case is remanded for a new trial, we do not address the sentencing issues raised by defendants.
Reversed and remanded for entry of judgments of acquittal on Count Four, and retrial of Counts One, Two, and Three. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION