DOCKET NO. A-5010-10T1
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-08-1998.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
Defendant Jose Aleman appeals from his murder conviction for fatally shooting Pong Yu and injuring Carlos Smith. He challenges, as plain error, the verdict sheet and jury instructions, the admission of character evidence and lack of a limiting instruction, and the admission of testimony at a bifurcated trial regarding the nature of his prior conviction. We affirm.
As a result of a shooting occurring in Atlantic City on April 24, 2008, defendant was charged by an Atlantic County Grand Jury in a five-count indictment, No. 08—08-1998B, with first-degree murder of Yu by purposely or knowingly causing his death or inflicting serious bodily injury resulting in death, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree unlawful possession of a .38 caliber handgun with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a (count two); second-degree unlawful possession of a .38 caliber handgun without a permit to carry as provided by N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5b (count three); fourth-degree recklessly causing bodily injury to Smith with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count four); and second-degree possession of a .38 caliber handgun by a person previously convicted of possession with intent to distribute CDS, N.J.S.A. 2C:39-7 (count five).
Following a five-day trial, defendant was convicted by a jury on September 8, 2010 of counts one through four. A bifurcated jury trial was then conducted on count five, after which defendant was convicted of that count. Defendant filed a motion for a new trial, which was denied. Judge James Isman sentenced defendant on October 29, 2010 to an aggregate custodial term of fifty and one-half years with thirty-nine years parole ineligibility, and imposed mandatory fees, fines, and penalties. This appeal ensued.
At trial, the State presented the testimony of Smith, several law enforcement officers and expert witnesses, and several bystanders who witnessed or heard the shooting. The State also presented a surveillance videotape of the parking lot that depicted the murder in its entirety and an audio/video recording of defendant's confession. The defense presented the testimony of his landlord; a close friend, Santos Torres; and defendant testified on his own behalf.
Captain Joseph W. Fair, Jr., Detective Joseph Jasiecki and Patrolman Michael Mason of the Atlantic City Police Department; Investigators Bruce Stowers and Anthony LoCicero of the Division of Gaming Enforcement; Forensic Crime Scene Unit Detective Justin Furmin, a crime scene investigation expert, Detective Ian Finnimore, Sergeant Charles DeFebbo, Major Crimes Unit Detectives Kevin Ruga, and Edwin Cintron of the Atlantic County Prosecutor's Office; Dr. Hydow Park, Atlantic County Medical Examiner and forensic pathologist; and Investigator Randolph Toth of the New Jersey State Police Ballistics Unit.
Defendant admitted on the stand that he fatally shot Yu twice, once in the abdomen and once in the head. In a recorded interview conducted by Investigator Cintron that was played for the jury, which was repeated by defendant at trial, defendant stated he shot Yu because the victim would not repay him $13,000, comprised of a $10,000 loan defendant made to him in 2006 and $3000 from work defendant did for Yu. His defense was that he acted in the heat of passion and was provoked because Yu withheld defendant's money and would not return his calls when he desperately needed money for cancer treatment, and this made the crime passion/provocation manslaughter rather than first-degree murder.
Defendant testified he was walking towards his house on South Tennessee Avenue in Atlantic City when he saw Yu drive his truck and park it in a lot nearby. Defendant walked over to his house and retrieved a gun he had recently purchased, loaded it with six bullets, and put it in his backpack. Defendant returned to the parking lot where Smith and Yu were standing. About five minutes had passed from when defendant first observed Yu's vehicle until the time he returned to the parking lot.
Defendant hid for about eight minutes, waiting for a woman with whom Yu was speaking to leave. He then walked up to Yu, had a short conversation with him, and with a "calm" demeanor, pulled out the revolver, pointed it at Yu, and shot him in the abdomen. The bullet entered on the right side of his torso and exited through his right flank. Yu fell to the ground.
Defendant then walked over to Yu, pointed the gun at his head, and fired two more shots. One bullet struck Yu at the right rear of his skull, entered downward and traveled through his brain before coming to rest in his skull. Dr. Parks testified that this shot was fatal. Another bullet was lodged in the asphalt next to Yu's head. Defendant placed the gun on a gas meter and asked witnesses to call the police.
Smith testified that he was with Yu when Yu was shot, and one of the bullets grazed his right arm and then struck his car. He had a scar on his arm as a result. He discovered the bullet that struck his car later that day.
In addition to the audio/video recording of the interview, Captain Fair and Detective Jasiecki testified to defendant's calm, cool demeanor, both at the scene of the crime and the interview later that day. The surveillance video of the shooting was shown to the jury.
On appeal, defendant argues:
POINT IBased on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm defendant's conviction.
BOTH THE VERDICT SHEET AND SOME OF THE JURY INSTRUCTIONS FAIL TO PROPERLY ASSIGN THE
BURDEN OF DISPROVING PASSION/PROVOCATION TO THE STATE (NOT RAISED BELOW).
THE STATE'S ATTEMPT, THROUGH CROSS-EXAMINATION, TO PAINT A PICTURE OF DEFENDANT AS AN ANGRY MAN UNFIT TO OWN OR POSSESS A GUN, WAS: (1) AN IMPROPER USE OF CHARACTER EVIDENCE TO PROVE SPECIFIC CONDUCT IN VIOLATION OF N.J.R.E. 404(A); (2) AN ATTEMPT TO BESMIRCH DEFENDANT'S CHARACTER IN VIOLATION OF THAT RULE AND N.J.R.E. 404(B); AND (3) WHOLLY IMPROPER WITHOUT A LIMITING INSTRUCTION TO RESTRICT THE JURY'S USE OF THAT EVIDENCE (NOT RAISED BELOW).
ONCE DEFENSE COUNSEL AGREED THAT SHE WAS STIPULATING THE FACT THAT DEFENDANT HAD A PRIOR CONVICTION THAT SATISFIED THE STATUTE WHICH PROSCRIBES PREVIOUSLY CONVICTED PERSONS FROM POSSESSING WEAPONS, THE JURY SHOULD NOT HAVE BEEN TOLD THE NATURE OF THE DEFENDANT'S PRIOR CONVICTION (NOT RAISED BELOW).
The parties and judge agreed that passion/provocation manslaughter should be submitted to the jury as an alternative to a murder verdict. Defendant acknowledges the judge's instructions were "straight from the model jury charge[.]" See Model Jury Charges (Criminal), 2C:11-4a, b(1), b(2) (2011). He argues, however, as plain error warranting reversal, that the judge's statement prior to these instructions and the verdict sheet did not correctly designate the State's burden of disproving the elements of passion/provocation and confused the jury.
The challenged statement is as follows:
So right away, you can see the difference between the two, is that phrase in the heat of passion resulting from a reasonable provocation. Everybody see that? That's why you possibly could not find both. You could find either or neither, but not both. If you are to find neither was proven, beyond a reasonable doubt, then you would go on to consider whether the killing was done recklessly[.]The challenged portion of the verdict form description of passion/provocation reads:
Whether the Defendant . . . did cause the death . . . either purposely or knowingly and did so in the heat of passion resulting from a reasonable provocation, (Passion/Provocation Manslaughter), how do you find the Defendant?
Defendant urges that the language in this initial charge and the verdict form could have led the jury to believe a positive finding of passion/provocation, as opposed to a reasonable doubt as to whether the State had disproved it, was the necessary finding for a verdict on passion/provocation manslaughter. Defendant emphasizes that nowhere in this part of the charge or the verdict form is the jury told that purposeful/knowing killing, plus a mere doubt about passion/provocation, should lead to a verdict for passion/provocation manslaughter.
"Pursuant to Rule 1:7-2, defendant's failure to object [to a jury instruction] constitutes a waiver of his right to challenge that instruction on appeal." State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). "[D]efects in the verdict sheet are reviewed on appeal under the same 'unjust result' standard of Rule 2:10-2 that governs errors in the jury charge." State v. Galicia, 210 N.J. 364, 388 (2012).
We assume for the sake of argument there was "a rational basis in the evidence" to charge passion/provocation manslaughter. See State v. Garron, 177 N.J. 147, 180 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004) ("If counsel requests a lesser-included charge, the trial court must give that charge if there is a rational basis in the record to do so."). See also State v. Mauricio, 117 N.J. 402, 4ll (l990) (enumerating the four elements of passion/provocation: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying"); Galicia, supra, 210 N.J. at 389 (holding that any error in charging the jury regarding passion/provocation manslaughter, when that charge "had no foundation in the evidence[,]" constitutes harmless error and is incapable of depriving a defendant of a fair trial).
Defense counsel neither objected to the charge nor the verdict form. We are satisfied there was no error, but at most, any error would be harmless. When the jury instructions are considered in their totality, see State v. Koskovich, 168 N.J. 448, 529 (2001), it is clear the judge never advised the jury that it must make a "positive finding" of passion/provocation but, rather, clearly and accurately conveyed to the jury the State's burden to disprove the elements of passion/provocation in order to find defendant guilty of first-degree murder. Nor could a reasonable jury have drawn such an inference from these instructions. Here, contrary to State v. Grunow, 102 N.J. 133, 134, 144-45 (1986), the overall charge expressly conveyed to the jury that the State had to prove beyond a reasonable doubt every fact necessary to constitute the crime of murder, including the absence of reasonable provocation, and defendant had no burden to prove the presence of reasonable provocation.
The sample verdict sheet provided by the model jury charges does not contain the phrase that the State must disprove at least one of factors of passion/provocation manslaughter beyond a reasonable doubt. Model Jury Charges (Criminal), supra, 2C:11-4a, b(1), b(2). The jury never requested clarification and gave no indication to the court whatsoever that it was confused by the verdict form and did not understand the court's instructions regarding the legal standard and the State's burden to disprove passion/provocation. Nevertheless, any error would be deemed harmless. See Galicia, supra, 210 N.J. at 387 ("When there is an error in a verdict sheet but the trial court's charge has clarified the legal standard for the jury to follow, the error may be deemed harmless.").
Even giving defendant the widest latitude, due to the "near overwhelming evidence of [defendant's] guilt[,]" defendant's asserted errors were not "clearly capable of producing an unjust result." State v. Marrero, 148 N.J. 469, 497 (1997) (internal quotation marks omitted). Defendant admitted that after he saw Yu's vehicle, he returned to his home, retrieved and loaded his gun, and returned to the scene. He then hid for about eight minutes until a bystander left, approached Yu and engaged him in a brief conversation, after which he calmly shot Yu in the abdomen. Defendant then walked over to Yu, who had fallen to the ground, and executed him. These actions clearly demonstrate that defendant did not act under the stress of passion/provocation. The jury also watched the surveillance video and heard defendant's confession, in which he told the investigator, among other things, "[e]ven if he did  give me a million dollar[s] I would shoot the man."
Defendant next argues, again as plain error, that the State improperly sought to use character evidence to prove specific conduct in violation of N.J.R.E. 404(a), sought to besmirch his character in violation of that rule and N.J.R.E. 404(b), and the judge erred in not giving a limiting instruction to restrict the use of that evidence. Specifically, defendant characterizes testimony elicited from his witness Torres on cross examination as testimony that defendant "is too angry of a person to own a gun . . . that defendant has a bad temper, that his temper made him unfit to possess a gun, and therefore . . . [he] acted in conformance with his bad temper and murdered someone[,]" as depriving him of a fair trial. Defendant did not object to this line of questioning at trial.
On cross-examination, the prosecutor asked Torres whether "there [was] a time, several years ago, that  Defendant came to you and asked you where he could purchase a gun?" to which he replied, "I don't recall that." The prosecutor continued:
Q: You don't recall the Defendant asking you where he could get a gun?
Q: Is that a no, sir?
A: No, I don't remember that.
. . . .
Q. You don't remember him asking you?
A. No. No.
. . . .
Q. And you didn't know the Defendant had a gun, did you?
A. That I didn't know.
In attempting to impeach Torres' testimony with a prior inconsistent statement he made to investigators, the prosecutor asked:
Q: And isn't it true that you told the investigators that you wouldn't tell the Defendant where to get a gun?
A: I would never know where to get a gun.
Q: You didn't want the Defendant to have a gun, did you?
A: Definitely not.
Q: That's because he's got a temper; is that right?
A: I wouldn't want anyone, a friend of mine for whatever reason help him out to get a gun regardless of who he is.
Q: Didn't you tell the investigators, sir, and I realize that it's a long time ago and I do realize you have trouble with your memory. I'll slow down a bit. Isn't it true that you told the detectives that came to visit you that the Defendant wanted a gun and you wouldn't tell him because you didn't think it's a good idea because he has a bad temper? Isn't that true?
A: I don't recall doing that. I could have said that.
Q: You could have told the detectives that?
A: I could have said that, but I don't remember saying that.
"A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). "However, if the party appealing did not make its objection to [the] 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.'" Ibid. (quoting R. 2:10-2).
Under N.J.R.E. 404(a), "[t]he general rule is that the prosecutor may not offer evidence of the defendant's character to support an inference about the defendant's conduct on a specific occasion unless the defendant has first produced evidence of good character." State v. Hunt, 115 N.J. 330, 369 (1989). Prior to the introduction of good character evidence, reference to a defendant's temperament, while "ill advised[,]" does not necessarily constitute reversible error, let alone plain error, when an "accurate charge on passion/provocation manslaughter sufficiently focus[es] the jury's attention on the objective reasonableness of [the] defendant's conduct to cure any prejudice caused . . . ." Id. at 372.
We are not convinced the prosecutor's statement that defendant had "a temper" was either improper evidence of defendant's bad character, N.J.R.E. 404(a), or evidence of prior bad acts, N.J.R.E. 404(b). Torres never testified he told the police that defendant had a bad temper, rather he testified he did not recall making such a statement. As a result, there was no evidence presented at trial regarding defendant's character. The prosecutor's questions were the only source of information indicating that defendant had a bad temper. Statements by an attorney at trial are not evidence, see State v. Anastasia, 356 N.J. Super. 534, 543 (App. Div. 2002), and the judge so instructed the jury to disregard any facts in either counsel's questions that were not testified to by a witness. "We presume that the jury followed the instruction accurately." State v. Winder, 200 N.J. 231, 256 (2009). As there was no evidence at trial regarding defendant's character for being a hothead or having a bad temper, the prosecutor's questions had no prejudicial effect on defendant's trial.
Furthermore, as Torres did not testify that defendant had a bad temper, the prosecutor did not introduce any evidence regarding defendant's character. Torres testified that he did not recall if defendant approached him regarding purchasing a gun, and the prosecutor impeached this testimony by asking him about his prior inconsistent statement to the detectives. See N.J.R.E. 607 (permitting extrinsic evidence, including prior inconsistent statements, to impeach a witness's credibility). Torres' statement to the detectives was not being introduced to prove that defendant had a bad temper and acted in conformity with having a bad temper at the time of the murder.
Moreover, evidence regarding defendant's bad temper could have bolstered his claim that he acted under the heat of passion after reasonable provocation. See Mauricio, supra, 117 N.J. at 411 (noting that passion/provocation manslaughter has two subjective elements: "the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying"). As defendant did not object to the prosecutor's questions, it is "fair to infer . . . that in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008).
In addition, the evidence of defendant's guilty was "nearly overwhelming" and any prejudice as a result of the prosecutor's questions was insufficient to constitute plain error. Marrero, supra, 148 N.J. at 496. The State presented video surveillance of defendant shooting the victim, testimony from several law enforcement officers who witnessed the shooting, and testimony of the second victim. Defendant also confessed and described the murder in extensive detail in both his confession and at trial. He never denied he shot Yu, but only claimed he acted under the heat of reasonable provocation. The jury's speculative perception of defendant as having a bad temper based on Torres' testimony was inconsequential to the outcome. The jury rejected the defense of passion/provocation and properly convicted defendant of murder based on his actions, not on his character, in view of the overwhelming testimony and evidence presented at trial.
In his final argument, defendant contends he stipulated that his prior conviction satisfied the statutory requirements of N.J.S.A. 2C:39-7b, and therefore, at his bifurcated trial, the jury should not have been told the nature of the conviction. He urges that the jury was "irreparably tainted with too much information[,]" resulting in a manifest injustice warranting reversal and remand for a new trial on the certain-persons conviction.
We are not persuaded by this argument. The details of defendant's drug convictions were irrelevant; however, we are not convinced their admission in any way denied defendant a fair trial.
Defense counsel never agreed to stipulate the existence of defendant's prior convictions but only agreed to stipulate that the offenses were, from a legal standpoint, predicate offenses under the statute. Therefore, without objection, the State called Detective Ruga to testify to the contents of the sealed judgment of conviction. The detective testified that defendant was convicted of two counts of third-degree manufacturing distribution and dispensing of CDS, sentenced on March 5, 1999.
Defendant's reliance on State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999) is misplaced. There, in order to keep the details of the defendant's prior convictions from the jury, the defendant "asked to stipulate that [the] defendant had the requisite convictions under N.J.S.A. 2C:39-7b and was not contesting that element, but, rather, was merely challenging the 'possession' element of the crimes." Id. at 143. The trial court denied the request and we reversed the conviction, holding that "[t]he specifics of [the] defendant's prior crimes have no evidentiary significance beyond a stipulation that [the] defendant falls within the class of offenders our Legislature thought should be barred from possessing weapons." Id. at 153.
Moreover, in Alvarez, the defendant's primary defense was that he did not possess the weapon, and he also asked the court to charge the jury that it may not determine that he had a tendency to commit crimes or was a bad person based on a prior conviction. Id. at 143, 153. We held that the trial court's denial of the defendant's stipulation request prejudiced his right to a fair trial on the issue of possession, and without such instruction we could not "be sure that the jury did not misuse the evidence." Id. at 150, 153.
Here, however, defendant did not contest any of the elements of the offense. He admitted he possessed the gun in both his confession and trial testimony and was identified by witnesses as the shooter. Thus, testimony regarding defendant's prior drug convictions could not have prejudiced defendant.
The judge also properly instructed the jury that evidence of his prior convictions could only be used for the purpose of establishing an element of the offense, namely, that the jury "may not decide that just because  defendant has committed a prior crime or crimes that he must be guilty of the present crime."
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION