DOCKET NO. A-1983-11T1
Joseph A. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, 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NOT FOR PUBLICATION WITHOUT THE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 Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-0211.
Joseph A. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Marcus Zapata Careno was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b), and simple assault, N.J.S.A. 2C:12-1(a)(1), a lesser-included offense of second- degree aggravated assault with serious bodily injury, N.J.S.A. 2C:12-1(b)(1). Before summations, the court dismissed counts charging third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). The court sentenced defendant to a fifteen-year term of incarceration, subject to an eighty-five-percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In brief, the kidnapping and assault took place in the pre-dawn hours of November 21, 2009. The victim was defendant's ex-girlfriend, E.M. Defendant forced E.M. to drive from her home to a nearby park at around 4:00 a.m., and kept her there against her will, punching her and once biting her. He urged E.M. to renew her relationship with him. After one-and-a-half to two hours, he allowed her to drive back to her home, but then physically prevented her from leaving the car until a bystander intervened. He then fled, and was arrested eight months later.
We use initials to protect the victim's privacy.
Defendant appeals the conviction, asserting that the court erred in permitting the State to elicit evidence that defendant engaged in violent behavior with the victim the month before the kidnapping, and the month afterwards. Defendant also contends the sentence was excessive. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.
In addition to eliciting evidence regarding the charged kidnapping and assault in November 2009, the State sought to present evidence of incidents in October and December. At a N.J.R.E. 104 hearing, E.M. testified that in October 2009, she and defendant had a fist-fight in the bathroom of their apartment. They had been drinking and he was drunk. He punched her repeatedly and threw her against a tub. She went to the hospital with her son — not defendant's child — but did not report the incident to police. She had been dating defendant for several months, and had moved into the apartment with him that month. She broke up with defendant because of the altercation, although she and defendant spoke with each other, on and off afterwards.
The State sought to introduce the evidence of the October incident as proof of defendant's motive and intent to kidnap E.M. the following month. The court held that the State could only present testimony that E.M. broke up with defendant because of "violent behavior," but would be precluded from presenting detailed evidence of the October incident. The court held that the particulars of the October incident were not probative of motive or intent. "I would think that [the] prior act has to be sanitized because in [a]nd of itself the particulars of that act don't establish motive or intent . . . ."
Defense counsel stated he was "fine with" the court's ruling, explaining the court's position mirrored his own. He stated,
If Your Honor is apt to allow it in only in a sanitized version, [a]nd just to use it as a reason for the breakup then we would have no problem with the sanitized version of that as it explains the breakup, but it doesn't . . . go to the motive for the incident on the 23rd.
Defense counsel misspoke, as the incident occurred on the 21st of November.
E.M. also testified at the N.J.R.E. 104 hearing that on December 27, 2009, defendant appeared unexpectedly in front of E.M.'s new residence, as she was leaving. Police had been unable to arrest defendant since the kidnapping in November. E.M. testified that defendant forced her back up to her apartment by grabbing her hair. Once inside her apartment, he began assaulting her. He told her that he was going to kill her because she had reported the November kidnapping to the police. During the altercation, E.M.'s bed broke and fell to the floor. That alerted the landlord, who intervened and called police. E.M. then attempted to restrain defendant until police arrived. But, defendant repelled and kicked her, and fled. The police officer who responded to the scene testified that E.M. had visible bruises to her face and neck. Her report to him about the incident was consistent with her testimony. Defendant was not charged for this altercation.
The trial judge found, by clear and convincing evidence, that defendant assaulted E.M. in the face and neck on December 27, and threatened to kill her because she reported the November kidnapping to police. The court held that evidence of the December 27 incident was proof of defendant's consciousness of guilt. Contrary to the defense argument, the court held it was of no moment that defendant did not expressly threaten harm to E.M. if she cooperated with police in the future. The judge concluded that, in "beating her up [a]nd saying he was going to kill her . . . [defendant] would believe that she would be afraid to testify. So under that analysis it would show consciousness of guilt."
During the N.J.R.E. 104 hearing, the court also heard testimony regarding the admissibility of E.M.'s prior statement to police that defendant threatened her with a knife during the kidnapping. Although E.M. did not recant the significant details of the kidnapping, she testified that her reference to the knife was an exaggeration, prompted by her anger at defendant, and made after family members and her ex-husband urged her to press charges against defendant. Applying State v. Gross, 121 N.J. 1, 10 (1990), the court held that the statement regarding the knife was not sufficiently believable or corroborated to be offered by the State to rebut contrary trial testimony by E.M. Ultimately, however, the State offered evidence of the prior statements after the defense opened the door to the subject. E.M. continued to insist at trial there was no knife.
At trial, to prove the kidnapping and assault charges, the State relied on the testimony of E.M.; Oscar Centano, the bystander who intervened; and four law enforcement officers.
E.M. testified that as she arrived home from a party in her car, defendant was waiting at the curb and, without permission, entered the car's passenger side. He removed the car keys, and refused to leave the vehicle unless she drove to a nearby public park. Defendant wanted to talk to E.M. about repairing their relationship. He apologized for "the arguments . . . and for what had happened [i]n October [because] of the physical violence." After a stalemate of ten to fifteen minutes, E.M. relented and drove to the park, in return for getting her keys back. E.M. said that they both were drunk.
Once at the deserted park, about five blocks from her home, they argued about their relationship and traded insults. Although defendant expressed his love for E.M. and his desire to get back together with her, he also punched her multiple times on the head and face. He also choked her. At one point, a car approached, and E.M. flashed the headlights to try to draw the motorist's assistance, without success. In his anger, defendant punched the windshield, causing a crack. During the incident, he pulled her close, as if to kiss her, then pulled out her lip and bit it, causing her to bleed profusely and ultimately require one or two sutures. The State introduced photographs of the cracked windshield and the blood-stained interior. When E.M. tried to leave the car, he physically restrained her. She testified that she did not feel free to leave and was in fear.
She pleaded with him to let her drive to a hospital to treat her lip. He ultimately agreed to leave the park with her, but only to go to his mother's house. Upon arrival there, he refused to let her exit the car. E.M. suggested they return to her apartment, because defendant refused to leave "until we talk, until I say that we're going to be back." As she pulled up, she made eye contact with Centano, a stranger to her, who was standing on the corner waiting for his ride to work. E.M. believed it was her chance to "call for help [a]nd open the door [a]nd scream so that he could call the cops."
Centano testified that initially, defendant was reclining in his seat, but he and E.M. started to talk and then argue. Defendant tried to "hug her or kiss her" and she tried to push him away. The car rocked during the altercation, and Centano heard E.M. tell defendant "to leave her, that she didn't want anything from him." They continued to fight and E.M. tried to escape. She managed to open the door and get one foot out, but defendant pulled her back.
E.M. yelled for help, and Centano crossed the street and shouted that he had called the police and they were on their way, although Centano had not yet done so. Defendant left the car and fled down the street. E.M. ran towards Centano. She was crying and bleeding from the lip.
Centano testified that E.M. told her that her ex-boyfriend had attacked her, and threatened her with a knife to get her to drive to the park. E.M. then used Centano's phone to call the police. She also called her ex-husband.
Elizabeth Police Officer Kevin Kelly responded to the scene and observed E.M. "frantically crying and hysterical and bleeding from the mouth." He testified that E.M. told him that "her ex-boyfriend Marcus had bit her lip and put a knife to her throat and that he had fled towards Elizabeth Avenue." Officer Kelly and several other officers searched the area but could not locate defendant or a knife.
E.M.'s ex-husband accompanied her to a nearby hospital. In addition to the bite to the lip, she had bruises on her arm and head. Photographs of her injuries were admitted into evidence. E.M. testified that her parents and ex-husband urged her to file a police report against defendant. The same day, she appeared at the police station and provided a hand-written statement of the events to Kelly and was photographed.
She was interviewed again by Elizabeth Police Detective Alexander Negrin, and signed another statement. Negrin testified without objection that E.M. had already obtained a temporary restraining order (TRO) against defendant. The defense returned to the issue of the TRO on cross-examination, attempting to establish that it was never served. To establish defendant's flight, Negrin testified that he attempted without success to locate and arrest defendant. In response to various messages, defendant called and told Negrin that "he was going to turn himself in that day." However, he failed to do so.
E.M. also testified about the incident in December, consistent with her testimony at the N.J.R.E. 104 hearing. Elizabeth Police Patrol Officer Alphonso Colon testified that he responded to the altercation. He observed that E.M. was agitated, crying, and had "injuries on the side of the face, bruises, [a]nd scratches on the neck."
Union County Sheriff's Officer Michael Shultz testified that he executed an arrest warrant for defendant in Newark on July 21, 2010.
Defendant did not testify and presented no witnesses. The defense attempted to undermine E.M.'s testimony by eliciting her admission that she had embellished her statements to police by asserting defendant possessed a knife. She said she did so because she wanted him to pay for what he had done to her. The State elicited her prior statements that defendant possessed the knife, included her excited report of the knife to Centano.
E.M. also admitted that her ex-husband had threatened to seek custody of their son if she did not press charges against defendant and seek a restraining order. She testified that her parents viewed defendant as a "thug" and "didn't want him to be around." The defense elicited that E.M. had written to the prosecutor in April 2010, requesting dismissal of the case. But, she explained that she sought dismissal because she believed that she and her son would be in danger while defendant remained at large.
In May and June 2010, she and defendant spoke to each other — although it was unclear whether they did so in person. Believing the case against defendant was dismissed, E.M. testified that she and defendant were talking about getting married. Defense counsel elicited that E.M. never sought a final restraining order and never told defendant she had obtained a temporary order. She admitted that in March 2011, three months before the trial, she disclosed to defense counsel that her prior statement that defendant had a knife was false. She said did so because she believed defendant "needed a second chance."
Defense counsel argued in summation that defendant did not kidnap E.M., and had entered her car only with the purpose to reconcile with her. He questioned E.M.'s credibility, citing her fabrication of the knife, and minimized E.M.'s injuries. He argued for lesser-included offenses for both kidnapping and assault. He did not address the October or December incidents.
In contrast, the State reviewed the evidence against defendant, including evidence that he restrained her from leaving, choked and assaulted her, and fled the scene when Centano intervened. The State highlighted the "violent relationship" between defendant and E.M., the fact that E.M. ended the relationship because of the October incident, and defendant returned in December to inflict more violence. The State argued that E.M.'s willingness to get back together with defendant may have made her "foolish," but did not absolve defendant.
In the charge conference, the judge stated she intended to deliver the other crimes and wrongs instruction regarding the December incidents, and "generally as to the testimony I allowed as to why they broke up, because of his violence." Defense counsel agreed and did not request additional instructions. The court later charged the jury as follows:
[The] State has also introduced evidence that the defendant was engaged in some violent behavior towards the victim prior to November 21st, 2009, and that that was the reason, according to the witness, why they separated, or why she left him. The State also submitted evidence regarding an instan[ce] of violence — alleged violence — on December 27th, 2009, subsequent to the events in the indictment.
Now I allowed limited evidence as to those matters for a very-limited purpose, and that's how you have to consider them. Because normally such evidence is not permitted under our rules of evidence — prior bad acts or subsequent bad acts. So our rules specifically exclude evidence that a defendant committed other crimes, wrongs or acts, when it is offered only to show that he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged offenses. So you cannot consider this evidence regarding his propensity to be violent. That is not the purpose and you can't use that in your discussions. But before you give any weight to the evidence you must be satisfied that the defendant committed the other acts, and if you're not so satisfied you may not consider them for any purpose.
But our rules do permit evidence of other wrong acts, or crimes, when it's used for certain narrow purpose[s]. Now the evidence just that there had been violence in October was simply to explain why she had left [him], that they were separated. And there was no description of what that was because it wasn't relevant or admissible.
The court also discussed how the evidence of the December incident could be used to demonstrate consciousness of guilt:
But the evidence regarding what happened December 27th, which was testified to by [E.M.], and also by one of the police officers, was allowed in, and that was only to prove consciousness of guilt, if it does so prove it to your satisfaction. It was attempted — it was offered to attempt to convince you that it is evidence of consciousness of guilt on his part, regarding the crimes in issue on November 21st. But you may not draw this inference unless you conclude that the acts alleged were an attempt by the defendant to cover up the crime being alleged. The testimony was that there was some physical abuse at that time, and that the defendant said to her — said to [E.M.] — you called the police, I'm going to kill you. So whether or not that was a threat to her regarding her future conduct in this case, that's for you to determine and to determine whether or not that is additional proof of consciousness of guilt. And you may decide that the evidence doesn't demonstrate that, it's not helpful to you at all. In that case you must disregard that evidence. But if you do decide it demonstrates consciousness of guilt, use it only for that specific purpose and do not use it to decide that the defendant has a tendency to commit crimes, or that he is a bad person, or that he committed the crimes in issue today.
The jury apparently deliberated less than an hour before returning its verdict.
The court sentenced defendant on August 25, 2011. Defendant spoke at the sentencing hearing. He denied he kidnapped E.M., but stated, "I'm not going to deny that things happened, they did, but if she was so afraid of me how come I had communications after the fact — after the incident — with her." He mentioned that he faced removal to Peru.
The court found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), -1(a)(6) (prior criminal record and seriousness of offenses of which he has been convicted), and -1(a)(9) (need to deter). The court found that he was a "dangerous person" who "didn't have control" over his emotions, and his violence posed a risk of reoffending. In support of aggravating factor six, the court noted that defendant had been convicted of third-degree burglary in 2007, and a disorderly persons offense in 2006.
The court found mitigating factor one, N.J.S.A. 2C:44-1(b)(1) ("defendant's conduct neither caused nor threatened serious harm"), stating "Maybe you really didn't intend serious harm." The court found the factors in "equipoise" and sentenced defendant "in the middle" of the range, to fifteen years on the kidnapping.
On appeal, defendant presents the following points for our consideration:
UNDUE PREJUDICE FROM REPEATED TESTIMONY CONCERNING DEFENDANT'S UNCHARGED PRIOR
"PHYSICAL VIOLENCE" TOWARD THE VICTIM SUBSTANTIALLY OUTWEIGHED ITS MARGINAL PROBATIVE VALUE, RENDERING ITS ADMISSION ERRONEOUS.
THE COURT ERRED IN ADMITTING AN UNCHARGED, ALLEGED ASSAULT OCCURRING AFTER THE CHARGED KIDNAPPING AS PROOF OF CONSCIOUSNESS OF GUILT.
THE ADMISSION OF EVIDENCE OF PRIOR AND SUBSEQUENT UNCHARGED ASSAULTIVE BEHAVIOR ON THE VICTIM INDIVIDUALLY AND CUMULATIVELY DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST., ART. I, PARS. 1 AND 10. (Not Raised Below).
THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT SHOULD BE REDUCED.
We consider first defendant's argument that the court erred in allowing testimony of his "violent behavior" in October as a reason E.M. broke up with him; and evidence of the December incident, as proof of consciousness of guilt.
Well-settled principles govern the admissibility of other crimes or wrongs evidence. Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided by [N.J.R.E.] 608(b), 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." However, such evidence may be admitted for other purposes, such as to show "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake[.]" N.J.R.E. 404(b). The underlying danger of admitting other crimes evidence is that the jury may convict the defendant simply because he is "a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992) (internal quotation marks and citation omitted).
Admissibility of evidence of other crimes or wrongs is guided by a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;"When motive . . . is sought to be shown through other-crime evidence, . . . similarity between the alleged other act and the one for which defendant is currently on trial is not a requirement for admissibility." State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999). Also, "the balancing test of Cofield's fourth prong . . . incorporates the traditional balancing test of Rule 403." State v. Hernandez, 170 N.J. 106, 127 (2001).
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.
[Id. at 338 (citation omitted).]
"Appellate courts generally defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion." State v. Erazo, 126 N.J. 112, 131 (1991); see also State v. Marrero, 148 N.J. 469, 483 (1997). However, we owe no deference to the trial court when it fails to apply the four-prong test. State v. Darby, 174 N.J. 509, 518 (2002). Instead, an appellate court is required to conduct a de novo review. In this case, the trial court partially addressed the Cofield test. Consequently, we defer to the court's fact-findings where made, and apply de novo review where not.
Applying these standards, we conclude the court did not err in its evidentiary rulings. We consider the two incidents in turn. We discern no error in the court's determination that the evidence of the violent altercation in October was relevant to a material issue, the reason E.M. broke up with defendant, which set the stage for defendant's effort to reconcile the following month.
There is an additional reason why the prior violent incident was relevant. It explained E.M.'s reluctance to speak at length to defendant, or to drive willingly to a deserted park in the early morning hours. It was also relevant to prove that when defendant entered E.M.'s vehicle, it would likely terrorize her. See N.J.S.A. 2C:13-1(b)(2). See also State v. Angoy, 329 N.J. Super. 79, 87 (App. Div.) (stating that evidence that the defendant choked his wife a month before killing her was admissible under N.J.R.E. 404(b)), certif. denied, 165 N.J. 138 (2000). As noted, the second prong — regarding similarity in kind and time — is not relevant here, as the evidence of the October incident pertained to motive and intent.
Although the trial judge did not expressly find that the State proved the October incident by clear and convincing evidence, we deem the finding implicit. The record evidence supports such a finding, particularly given that the trial court credited E.M.'s other testimony. The testimony of a violent altercation was substantiated by the circumstantial evidence that E.M. broke off the relationship, and moved to a new place.
Regarding the fourth factor, the probative value of the evidence — which we have described — was not outweighed by its apparent prejudice, particularly in light of the court's decision to sanitize details of the incident. Defendant has failed to demonstrate the "very strong showing of prejudice" to justify exclusion of evidence of the October incident, given its pertinence to motive and intent. State v. Covell, 157 N.J. 554, 570 (1999).
In any event, the admission of the limited testimony of the October incident, if error, was invited error. Our Supreme Court has stated that a "'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).
Here, after the court stated its tentative decision to allow "sanitized" testimony that E.M. broke up with defendant because of "violent behavior" in October, defense counsel stated that he was about to request just such a ruling, and stated that the court's resolution of the issue was acceptable. He offered no objection, or opportunity for the court to modify its determination. N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 341 (2010). Particularly given the substantial evidence of defendant's guilt, we find no impediment — such as a miscarriage of justice — that would prevent us from applying the invited error doctrine in this case. Cf. id. at 342 (stating that a court will not "automatically apply the doctrine" if it were to cause a fundamental miscarriage of justice).
We also reject defendant's argument that the evidence of the December 27 event was not probative of defendant's consciousness of guilt, because he did not threaten to harm E.M. if she cooperated with police in the future. Evidence of post-crime conduct that demonstrates consciousness of guilt is relevant to a defendant's mental state. State v. Williams, 190 N.J. 114, 126 (2007). It therefore meets Cofield's first prong. Id. at 130.
In particular, a defendant's declaration or conduct after he committed a crime that is designed to induce a witness to lie, or to deter a witness from testifying is admissible as evidence of consciousness of guilt. Id. at 129-30 (stating that post-crime conduct to induce witnesses to lie and tampering with evidence may reflect consciousness of guilt); State v. Lassiter, 197 N.J. Super. 2, 9 (App. Div. 1984) (stating that evidence that defendant threatened a witness by saying he was "'going to take care of all of this'" was admissible to show consciousness of guilt), certif. denied, 101 N.J. 215 (1985). In State v. Rechtschaffer, 70 N.J. 395, 413 (1976), the Court held admissible a defendant's statement that "if he discovered the identity of his informer he would kill him," because it demonstrated consciousness of guilt even though it "may also be interpreted as merely having expressed dismay at being unjustifiably incarcerated." See also State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.) (stating that a defendant's letter requesting another inmate to kill a victim to prevent her from testifying was admissible), certif. denied, 135 N.J. 468 (1994).
There was ample support in the record for the court's clear and convincing finding that the December assault took place, and a threat was made. The court also properly found that defendant's actions were evidence of his consciousness of guilt. The court found that defendant's actions made him "believe that [E.M.] would be afraid to testify." Defendant's evasion of arrest, and then his sudden appearance, physical assault, and threat to kill E.M. all created a reasonable inference that he believed he was guilty of a crime and needed to intimidate his principal accuser into silence. The trial court appropriately concluded that the probative value of the evidence outweighed the prejudice to defendant. Also, the court correctly instructed the jury regarding the proper use of the other crimes or wrongs evidence. We presume the jury followed the court's instructions. State v. Winder, 200 N.J. 231, 256 (2009).
While the trial court should have offered to provide an interim instruction as well, see State v. Blakney, 189 N.J. 88, 93 (2006) (stating it is the "better practice"), we have held that "if the final charge is accurate, clear and comprehensive, . . . any delay, even if two weeks have elapsed between the introduction of the evidence and the final instruction, is not plain error." State v. Baker, 400 N.J. Super. 28, 47 (App. Div. 2008) (internal quotation marks and citation omitted), aff'd o.b., 198 N.J. 189 (2009). In this case, the final charge was delivered the day after the jury heard the other crimes or wrongs evidence.
Finally, we find no error in the court's exercise of its sentencing authority. The judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record. The judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice. The sentence imposed — in the middle of the first degree range for a violent offender with a prior record — is neither manifestly excessive nor unduly punitive and does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
To the extent not otherwise addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION