Opinion
DOCKET NO. A-2446-13T3
04-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDELBARTO PADILLA, a/k/a LEO DEL MONTE, LEO DELMONTE, ERIC CORTEZ, RAUL HERNANDEZ, HERBERTO PADILLA, MICHAEL LANDON, ERICKSON J. PAZ, ERICSON PAZ, ERICSON PAZARIELO, ERICSON PZARIELO, MICHAEL L. PAZARIELO, ERIC SANTANA, ERIK SANTANA, MICHAEL LAURARA, LEO DELEON, and LEO DEMICH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollack, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-01-0114. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollack, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In the early morning hours of October 24, 2002, Carlos Freitas was shot and killed in the Ugha Ugha Social Club, an after-hours bar in Newark. The shooter fled from the scene and remained unapprehended for several years. In 2008, the Essex County grand jury returned Indictment No. 08-01-0114, charging defendant Edelbarto Padilla with first-degree murder, N.J.S.A. 2C:11:3-(a) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Defendant was not apprehended until 2010, when he was arrested on an unrelated charge in New Brunswick.
The indictment was returned against "Leo Delmonte, also known as Edelbarto Padilla." At trial, however, defendant was referred to only as Edelbarto Padilla.
Defendant went to trial in 2012. A mistrial was declared after the jury could not reach a verdict. A second jury found defendant guilty of all counts. After denying defendant's motion for a new trial and merging count three into count one, the judge sentenced defendant to a prison term of fifty years, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent term on count two.
Before us, defendant raises the following issues:
POINT I
THE TRIAL COURT'S ADMISSION OF EVIDENCE THAT DEFENDANT WAS ARRESTED FOR AN UNRELATED CRIME AND THAT HE GAVE POLICE A FICTICIOUS NAME WAS "OTHER CRIMES"/"BAD ACTS" EVIDENCE THAT, IN THE ABSENCE OF SANITIZATION OR AN APPROPRIATE LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 10We have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT II
THE TRIAL COURT'S RELIANCE UPON THREE AGGRAVATING FACTORS THAT WERE NOT SUPPORTED IN THE RECORD RESULTED IN AN EXCESSIVE SENTENCE, REQUIRING A REMAND FOR RESENTENCING BASED UPON APPROPRIATE SENTENCING FACTORS
I.
We briefly summarize the salient evidence at trial. Freitas managed a restaurant in Elizabeth, and, on the night in question, he called a co-worker, Elida Melendez-Rodriguez, to join him for a drink at Ugha Ugha. Melendez agreed and drove to the club with her acquaintance, Louis, arriving at approximately 3:15 a.m. Freitas was standing at the bar with defendant and his friend, Mauricio Luque, a local taxi driver.
At the time of the murder, the witness used the name Melendez-Rodriguez, however while testifying, she stated that Rodriguez was her married name but "[r]ight now I used Melendez." Louis's last name does not appear in the record.
The club's manager, Antonio Fernando Alfonso, testified that he began closing around 7:00 a.m. At this point, defendant and Freitas began a physical altercation but were separated. While being dragged toward the front door, defendant wrested free and produced a gun from his waistband. He fired a shot at Freitas and pursued him into the kitchen, where several more shots rang out. Freitas stumbled out of the kitchen and fell to the floor, after which defendant emerged, fired another round into Freitas's back at close range and kicked him in the head three or four times before fleeing.
Alfonso was known to the witnesses, as well as most people, by his middle name, Fernando.
The medical examiner testified that Freitas died of multiple gunshot wounds.
Luque had already run out of the club, and defendant climbed into Luque's taxi, still holding the gun in his hand. He ordered Luque to drive away quickly. Luque drove defendant to his home in Elizabeth, left him there and then drove to a car wash.
Subsequent investigation led detectives to Luque, who identified defendant's photograph as being that of the shooter. Fernando also identified defendant as the shooter from a photograph several days later. Police issued a warrant for defendant's arrest on November 8, 2002. In December 2002, Melendez also identified a photograph of defendant as the shooter. At trial, Melendez, Luque and Alfonso identified defendant as the person who shot Freitas in the Ugha Ugha. The State also produced evidence that defendant was a possible match for DNA found on a beer can recovered from the Ugha Ugha.
Approximately eight years later, on May 28, 2010, New Brunswick Police Officer Raymond Quick arrested defendant in New Brunswick and solicited pedigree information as part of the arrest procedure. Defendant reported his name was Eric Cortez. When defendant's fingerprints were entered into a police database, however, Quick discovered that defendant had an active warrant for murder from Essex County. Quick identified defendant in court, and also identified defendant's arrest photo, which was admitted into evidence without objection.
Defendant did not testify or call any witnesses at trial.
I.
During the first trial, outside the presence of the jury, defense counsel explained the circumstances of defendant's 2010 arrest in New Brunswick. Apparently, police responded to a domestic violence call made by defendant's then girlfriend. She provided police with his name, Eric Cortez. Police ultimately found defendant and arrested him.
The trial judge asked the State for a proffer regarding the extent of Quick's testimony. The prosecutor indicated he intended to elicit defendant's use of a false name upon arrest, and that subsequent fingerprinting revealed an outstanding warrant for the 2002 murder, as evidence of defendant's consciousness of guilt.
Defendant objected to Quick's proposed testimony, claiming any evidence that defendant used an alias, eight years after the murder, was highly prejudicial, particularly since there was sufficient evidence already to support a flight charge. The judge overruled the objection, concluding first that the State could not introduce evidence of the "underlying incident." Addressing defense counsel, the judge continued:
If your argument is that simply the fact that [defendant] told a girlfriend, or an ex-girlfriend that his name was Eric, as opposed to Leo, as opposed to Mike, without getting into the underlying incident, whatever it may be, I don't believe that [] prejudice outweighs the probative value. Accordingly, I will allow the state to ask those questions as they've indicated they will ask of the witness.Defendant renewed his objection to Quick's testimony at the second trial and cited the testimony in arguing his motion for a new trial. There is no indication in the record defense counsel ever requested that the judge provide a limiting instruction to the jury.
Before us, defendant argues Quick's testimony was "classic 'bad act' evidence, which was presumptively inadmissible under N.J.R.E. 404(b)." Defendant also argues his use of the name Eric Cortez was irrelevant, and hence, inadmissible, under N.J.R.E. 401, because the State's own witnesses at trial knew him by different names in 2002.
N.J.R.E. 404(b) specifies:
[e]xcept [in circumstances not present here], evidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted 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.
[Id.]
We agree with the State that defendant never raised this specific objection at trial. Instead, defendant only argued that the prejudice associated with his use of a false name in 2010 substantially outweighed the probative value of the evidence. See N.J.R.E. 403(a). As we see it, the two aspects of Quick's testimony — the arrest itself and defendant's use of a false name — require different analysis.
Since defendant never objected to testimony that he was arrested in 2010 on unrelated charges, we review whether it was plain error to permit Quick to testify to those facts. State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2) ("[I]f the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'"). We agree with defendant that evidence of the 2010 arrest in New Brunswick was subject to analysis under N.J.R.E. 404(b). Because the judge never performed that analysis, our review is de novo. Rose, supra, 206 N.J. at 158 (citing State v. Lykes, 192 N.J. 519, 534 (2007)).
The four-part test the Court enunciated in State v. Cofield, 127 N.J. 328, 338 (1992), still applies. Id. at 159-60.
1. The evidence of the other crime must be admissible as relevant to a material issue;The second prong, however, "is understood as 'limited to cases that replicate the circumstances in Cofield.'" Rose, supra, 206 N.J. at 160 (quoting State v. Williams, 190 N.J. 114, 131 (2007)). This is not such a case.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
The circumstances of defendant's 2010 arrest were clearly relevant, since defense counsel, in his opening and summation, stressed the passage of time between the incident in 2002, the indictment in 2008 and the arrest on the murder charge in 2010, implicitly impeaching the testimony of the eyewitnesses to the shooting. See Rose, supra, 206 N.J. at 160 (explaining that the defendant's position regarding the issue in dispute is important in analyzing the relevancy and materiality of the evidence). The State clearly had the right to explain that defendant was not apprehended until 2010 and to explain how that arrest led to his arrest for the 2002 murder. Quick's testimony was clear and convincing.
The probative value of the evidence was not outweighed by its prejudicial effect, particularly since any prejudice was significantly ameliorated by sanitization. See id. at 161 (quoting State v. Barden, 195 N.J. 375, 390 (2008)) ("[I]n order to minimize 'the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate.'"). Our de novo review convinces us the evidence was admissible.
Of course, a limiting instruction should have been provided so the jury understood the "'permitted and prohibited purposes of the evidence.'" Ibid. (quoting Barden, supra, 195 N.J. at 390). However, there was no objection to the admission of defendant's sanitized arrest, and therefore, no request to provide a limiting instruction on this point. The judge was denied the opportunity to address the issue. See State v. Frost, 158 N.J. 76, 84 (1991) ("The failure to object deprives the court of an opportunity to take curative action."). We are convinced, however, that despite this omission, the jury could not have used Quick's extremely brief testimony regarding defendant's arrest for an unknown and unrelated offense in 2010 as evidence that defendant was criminally disposed. N.J.R.E. 404(b).
On the other hand, there was a timely objection to Quick's testimony that defendant gave a false name when arrested on unrelated charges in 2010. Here, too, however, defendant did not argue that N.J.R.E. 404(b) applied; he simply argued that the balancing test required by N.J.R.E. 403(a) militated in his favor. We find no fault with the judge's analysis, because the evidence was intrinsic to the murder charge and not subject to N.J.R.E. 404(b) analysis, and the judge did not mistakenly apply his discretion by concluding its probative value was not substantially outweighed by any prejudice. See Lykes, supra, 192 N.J. at 534 ("appellate review of a trial court's application of the balancing test of N.J.R.E. 403 also is subject to the abuse of discretion standard").
"[E]vidence is intrinsic if it 'directly proves' the charged offense." Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)). Intrinsic evidence is not subject to analysis under N.J.R.E. 404(b), although the evidence is still subject to exclusion under N.J.R.E. 403. Id. at 179-80; see also, State v. Skinner, 218 N.J. 496, 518 n.5 (2014) (recognizing that "direct proof against a defendant — such as an admission," is not subject to Rule 404(b) analysis).
The State argued defendant's use of a false name was evidence of his consciousness of guilt. Pursuant to N.J.R.E. 401, evidence is relevant when it has "tendency in reason to prove or disprove any fact of consequence to the determination of the action." It must tend to "'establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127 (2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985)). There must be a "'logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)).
"Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993); see also State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991) ("The conduct of a defendant subsequent to the commission of a crime is relevant when the conduct in question indicates a consciousness of guilt."). Examples include the defendant's exhibition of remorse at the grave of the victim, State v. Mills, 51 N.J. 277, 286, cert. denied, 393 U.S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968), and the lack of any emotion when the defendant was informed of his wife's murder. State v. Cerce, 22 N.J. 236, 245-46 (1956).
In Mann, the issue was whether the trial judge properly admitted evidence of the defendant's attempted suicide upon arrest. Mann, supra, 132 N.J. at 415-16. The Court found most analogous those cases involving "a defendant's flight or escape[,]" id. at 418, noting "[a] jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." Id. at 419.
The Court made clear, however, that
"[f]or departure to take on the legal significance of flight, there must be
circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt."In short, evidence of flight is probative if the flight is accompanied by "an intent to avoid detection or apprehension." State v. Ingram, 196 N.J. 23, 46 (2009). "[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47.
[Id. at 418-19 (quoting State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966)).]
In Mann, supra, 132 N.J. at 425, the Court concluded that, given the lack of any pre-trial evidential hearing, the defendant's attempted suicide was ambiguous. That ambiguity, coupled with the lack of any jury charge, required reversal. Ibid.
In this case, without specific reference to the arrest in 2010, the judge charged the jury on flight. At trial, defendant did not argue, and does not argue on appeal, that the evidence failed to support a flight charge. The issue, therefore, is whether defendant's use of a false name when arrested in 2010 on unrelated charges was probative of defendant's guilty conscience. In other words, did defendant say his name was Eric Cortez with the "intent to avoid detection or apprehension"? Ingram, supra, 196 N.J. at 46.
On the night of the shooting, which took place in the midst of a crowded social club, defendant fled the scene in his friend's taxi and was left at his home in Elizabeth. A warrant for his arrest was issued shortly thereafter. Despite the open warrant existing for nearly eight years, defendant was never apprehended. Yet, when arrested in 2010, rather than provide his correct name, defendant provided an alias. His true identity was only discovered when his fingerprints matched those of the person named in the murder warrant. We believe the jury could clearly draw an inference that defendant provided the false name in hope of avoiding detection and apprehension, and that the evidence was relevant to defendant's consciousness of guilt.
We therefore affirm defendant's conviction.
II.
In imposing sentence, the judge found aggravating factors one (the "nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); three (risk of committing another offense); six (the extent of defendant's prior criminal record) and nine (need for deterrence). N.J.S.A. 2C:44-1a(1), 2C:44-1a(3), 2C:44-1a(6), 2C:44-1a(9). The judge found no mitigating factors. N.J.S.A. 2C:44-1b. As to factor one, the judge said:
I want to make clear there is no double counting here. Yes, there was a murder, but in this particular murder the defendant chased down[] the . . . victim . . . from the bar into the back room, back out into the bar again, shot him multiple times until he fell to the ground and then shot him again while he was laying helpless on the ground.Noting this was defendant's first conviction for an indictable offense, the judge gave little weight to factor six. The judge found aggravating factor three was "certainly indicate[d]," given defendant's numerous arrests and conviction for a disorderly persons offense. Finally, the judge determined aggravating factor nine applied because "[t]he need to deter is always present." He imposed the sentence we referenced above.
Defendant contends his sentence was excessive, because his one conviction for a disorderly persons offense did not support a finding of aggravating factors three, six and nine. We disagree and affirm the sentence imposed.
"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "'were based upon competent credible evidence in the record.'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bieniek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant was twenty-six years of age when he murdered Freitas. He had numerous arrests in New Jersey and arrests in Texas and New York. As the State notes in its brief, defendant in fact had more than one conviction for a disorderly persons offense.
We have recognized that a judge may consider the length of a defendant's criminal record, even when those arrests do not result in convictions, State v. Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991), as well as convictions for relatively minor offenses. State v. T.C., 347 N.J. Super. 219, 244 (App. Div.), certif. denied, 177 N.J. 222 (2003). In short, the judge implicitly gave great weight to the nature of the offense, noting the particularly cold-blooded actions that led to the murder, and the other aggravating factors found support in the record. The sentence imposed does not shock our conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION