DOCKET NO. A-5633-12T2
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Quigley, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-07-0620. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Quigley, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals his conviction for first-degree murder and related weapons offenses, chiefly arguing the jury charge on flight unconstitutionally shifted the burden of persuasion to him. We reject this argument because the flight charge comported with decisional law to which we are bound. See, e.g., State v. Mann, 132 N.J. 410, 420-21 (1993). We remand, however, for further proceedings regarding the sentence because the judge mistakenly failed to merge the conviction for possession of a weapon for an unlawful purpose into the murder conviction and, also, because the judge failed to conduct a hearing on restitution as required by N.J.S.A. 2C:44-2.
Defendant was indicted and charged with: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant was tried on these charges over the course of fourteen days in early 2013.
The jury heard evidence that Dennis Gaitan and friends spent some time in a bar in Plainfield on the evening of December 6, 2008. At some point after midnight, Gaitan and friends left the bar. Once outside, Gaitan and defendant, who was not part of Gaitan's group, argued in the parking lot and a fistfight between the two soon ensued. The fight quickly ended when, after a few punches were thrown, Gaitan stepped away with a cut on his neck. One witness testified Gaitan then said "yo, he cut me," and another witness testified Gaitan said "this nigga' just stabbed me." One eyewitness, a man named Alvarez, who was unassociated with either the victim or defendant, testified he saw the fight from the vantage point of a friend's minivan as it pulled into the parking lot where the fight took place. Alvarez testified he saw a man "knife [the victim] in his neck."
Police officers and paramedics arrived at the scene a few minutes after the fight. Gaitan was later pronounced dead at a nearby hospital. That night, two eyewitnesses separately selected defendant's photograph out of an array shown to them by a police officer.
Alvarez testified that, on June 24, 2009, more than six months after the crime, police showed him a photo array and asked whether he could identify Gaitan's assailant; Alvarez claimed he selected a photo of someone other than defendant. The State presented testimony from a police detective to refute Alvarez's testimony; the detective testified he brought Alvarez to the police station on June 24 to take a statement about this crime but that he and other officers decided against showing Alvarez a photo array due to the passage of time. The detective also testified that another officer asked Alvarez to identify photos of gang members potentially involved in a different and unrelated crime that occurred in February 2009.
The jury also heard from defendant's brother, Jonathan, who testified he received a phone call from a woman named Erica between 2:00 and 4:00 a.m. on December 7, 2008, the night of the murder. Jonathan was unable to provide Erica's last name but he claimed to have known her since he was thirteen years old and identified her as "one of my brother's baby's mother." Jonathan testified that "Erica told me that we were threatened, that his family, my family, and my other brother, that our lives were threatened, that we were going to get killed." Jonathan immediately relayed this information to defendant and advised him "to leave, to disappear."
The day after the murder, police determined that defendant purchased tickets under an alias to fly from New York to Puerto Rico. Defendant was apprehended in Puerto Rico a few days later.
After hearing this and other evidence, the jury found defendant guilty as charged. On June 14, 2013, defendant was sentenced on the murder conviction to a forty-two-year prison term, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; in addition, the judge imposed a one-year concurrent prison term on the unlawful possession of a weapon conviction, and a concurrent three-year prison term on the possession of a weapon for an unlawful purpose conviction. The judge also imposed a $5,000 fine to be paid to the Victims of Crime Compensation Board and $1,000 restitution to be paid to Gaitan's parents.
Defendant appeals. Through counsel, he argues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ISSUING AN UNCONSTITUTIONAL FLIGHT INSTRUCTION (Not Raised Below).
II. A REMAND IS NECESSARY BECAUSE THE SENTENCING COURT FAILED TO CONDUCT ANY MERGER ANALYSIS OF THE CONVICTIONS.
III. A REMAND IS NECESSARY BECAUSE THE SENTENCING COURT FAILED TO CONDUCT A RESTITUTION HEARING TO DETERMINE THE AMOUNT OF RESTITUTION, IF ANY, AND TO DETERMINE MR. JIMENEZ'S ABILITY TO PAY.
IV. MR. JIMENEZ'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
Defendant also filed a supplemental pro se brief, presenting the following arguments for our consideration:A. The Sentencing Court Accorded Undue Weight to Aggravating Factors Three, Six, and Nine.
B. Mr. Jimenez's Sentence Should Be Reduced Given NERA's Real-Time Consequences.
V. THE PROSECUTION COMMITTED BRADY VIOLATION BY WITHHOLDING EXCULPATORY FACT AND RESULTS OF EYEWITNESS (... ALVAREZ)
PHOTO IDENTIFICATION ADMINISTERED BY LEAD DETECTIVE COSIMO TRIPOLI AND DETECTIVE EDWIN MALDONADO.For the reasons that follow, we find no merit in (1) defendant's arguments about the flight instruction and (2) his arguments about an alleged Brady violation and the sequestration order, but (3) we remand for additional proceedings regarding the sentence imposed.
VI. THE TRIAL JUDGE ONCE MADE AWARE OF THE BRADY VIOLATION IMPROPERLY TOOK UP THE STATE[']S CAUSE OR INTEREST CLEARLY SHIFTING THE COMPLAINED OF BURDEN TO THE DEFENSE.
VII. DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER U.S. CONST. AMEND. VI; N.J. CONST. 1947, ART 1 PAR. 10 WAS VIOLATED WHEN THE TRIAL JUDGE DENIED DEFENSE COUNSEL[']S WELL REASONED OBJECTION AND REQUEST FOR SEQUESTRATION PRECLUDING PRESENCE OF POTENTIAL REBUTTAL WITNESSES, ERRONEOUSLY PERMITTING WITNESS TO BE PRESENT DURING TESTIMONY OF OTHER WITNESSES.
For convenience, we have renumbered these points.
Defendant argues the jury charge on flight violated his constitutional rights to due process and a fair trial because he believes the instruction impermissibly shifted the burden of proof to him, and diluted the State's burden to prove his guilt beyond a reasonable doubt.
The judge charged the jury regarding the significance of the flight/departure evidence in the following way:
There has been some testimony in the case from which you may infer that the [d]efendant fled shortly after the alleged commission of the crime. The [d]efense has suggested that he fled out of fear because of death threats made against the [d]efendant, his wife and children, and other family members. And the [d]efense has also suggested that he fled to ensure his safety.
If you find the [d]efendant's explanation credible, you should not draw any inference of the [d]efendant's consciousness of guilt from [d]efendant's departure. If after a consideration of all the evidence you find that the [d]efendant fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge and flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt.
It is for you as judges of the facts, to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all other evidence in the case.
Defendant posed no objection to the flight instructions given, a circumstance that would invoke the plain-error standard, State v. Copling, 326 N.J. Super. 417, 427-28 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000); State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996), if we were to find error in the charge. For the reasons that follow, the judge did not err.
Plain error is that which is "clearly capable of producing an unjust result." State v. Whitaker, 200 N.J. 444, 465 (2009); R. 2:10-2. In applying this standard to an erroneous jury instruction, we examine the record to determine whether "legal impropriety in the charge prejudicially affect[ed] the substantial rights of the defendant and [was] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969); see also State v. Nero, 195 N.J. 397, 407 (2008).
It has been held that flight is "admissible as evidence of consciousness of guilt and, therefore of guilt." State v. Ingram, 196 N.J. 23, 46 (2008). On the other hand, "mere departure from the scene of the crime does not itself constitute flight." State v. Wilson, 57 N.J. 39, 48 (1970). "For 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." Ingram, supra, 196 N.J. at 46; Mann, supra, 132 N.J. at 418-19. The Supreme Court has held that "[a]n adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Mann, supra, 132 N.J. at 421. Accordingly, it has been held that when a defendant does not offer an explanation for his departure, the charge should instruct the jury to consider evidence defendant fled after the crime and determine whether defendant took flight because he feared arrest. Id. at 420-21. The jury should also be instructed that, if it has found the flight occurred, it should consider flight in connection with all the other evidence presented as consciousness of guilt. State v. D'Amato, 26 N.J. Super. 185, 188 (App. Div. 1953).
When an accused offers an explanation for his departure, the Supreme Court has directed that "the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Mann, supra, 132 N.J. at 421; see also State v. Leak, 128 N.J. Super. 212, 217 (App. Div.), certif. denied, 65 N.J. 565 (1974).
Here, defendant provided evidence that offered an explanation for his flight unrelated to fear of apprehension or arrest, and the judge incorporated a description of that explanation into the jury charge and instructed that the jury was to draw no inference of consciousness of guilt if they found the explanation credible. This charge adhered to the Supreme Court's holding in Mann, supra, 132 N.J. at 420-21, as well as the Model Jury Instruction on flight, Model Jury Charge (Criminal), "Flight" (2010). Even though defendant has forcefully argued these instructions transferred the burden of proof regarding flight to him or otherwise lessened the State's burden of proving guilt beyond a reasonable doubt, we are not free to adopt such a holding. Like the trial judge, we too are bound by Mann.
We would observe, however, that the charge does not necessarily lessen the State's burden to prove all the elements of the offenses beyond a reasonable doubt because flight is not an element of the crimes charged. Flight is only evidence that may illuminate the jury's consideration of a defendant's state of mind. D'Amato, supra, 26 N.J. Super. at 188. Just as the prosecution is not required to demonstrate every bit of its evidence is credible or persuasive beyond a reasonable doubt, see Patterson v. New York, 432 U.S. 197, 207, 97 S. Ct. 2319, 2325, 53 L. Ed. 2d 281, 290 (1977); State v. Gross, 121 N.J. 1, 15 (1990); State v. J.M., Jr., 438 N.J. Super. 215, 236 (App. Div. 2014), leave to appeal granted, 221 N.J. 216 (2015), it has not been held that the prosecution must prove flight beyond a reasonable doubt.
We have recognized, however, that an inference of this type may often play a significant role in the adjudication of a defendant's guilt and that constitutional principles may require an instruction that the jury found the inference to be present beyond a reasonable doubt. See J.M., Jr., supra, 438 N.J. Super. at 237-40. Defendant, however, did not argue in the trial court and has not argued in this appeal that such a burden should have been imposed on the State.
We find insufficient merit in defendant's pro se arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only a few brief comments regarding what he alleges to be a Brady violation and what he claims was a violation of the trial judge's sequestration order.
First, defendant's Brady argument is based on the assertion that the State withheld evidence of Alvarez's examination of a photo array during which Alvarez was unable to select defendant's photograph. The trial court, however, was presented with a factual dispute about whether Alvarez was even asked to make such an identification. Alvarez claimed he was; a detective testified Alvarez was only shown a photo array relevant to some other suspects in an unrelated crime. The judge heard this testimony and found the detective credible. In deferring to this finding, as we must, see State v. Robinson, 200 N.J. 1, 15 (2009), we are required to conclude that the factual predicate for a Brady violation does not exist.
Defendant also argues in his pro se brief that his constitutional right to a fair trial was violated when the trial judge allowed the victim's stepfather and two eyewitnesses to remain in the courtroom after they completed their testimony. Trial counsel objected but the record demonstrates these witnesses were never recalled to the stand. Accordingly, this technical violation of the sequestration order caused no prejudice. See State v. Williams, 404 N.J. Super. 147, 160 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010).
Defendant argues that, at sentencing, the judge should have merged the possession of a weapon for an unlawful purpose conviction with the murder conviction. The State agrees, as do we. There was no finding of a broader unlawful purpose than the commission of this murder; that conviction should have been merged with the murder conviction for sentencing purposes. State v. Tate, 216 N.J. 300, 312-13 (2013); State v. Diaz, 144 N.J. 628, 636-37 (1996).
The judge also ordered the following monetary sanctions: $5,000 to the Victims of Crime Compensation Board and $1,000 to the victim's family. Defendant contends that because the judge failed to make findings regarding defendant's ability to pay, the matter should be remanded for a restitution hearing. Although the amount ordered appears inconsequential in light of the circumstances, we are compelled to agree. See N.J.S.A. 2C:44-2; State v. Scribner, 298 N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997).
Defendant lastly argues that, at sentencing, the judge accorded undue weight to aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), resulting in a manifestly excessive and unduly punitive sentence. He also contends the sentence is excessive because the judge failed to consider the prison term's real time consequences.
In reviewing a trial court's sentence, we are "expected to exercise a vigorous and close review for abuses of discretion by the trial courts," State v. Cassady, 198 N.J. 165, 180 (2009), and "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record,'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). We must not, however, "substitute [our] assessment . . . for that of the trial court"; only when we "determine that the trial court has found aggravating and mitigating factors unsupported by the record," are we entitled to "intervene and disturb such a sentence." Bieniek, supra, 200 N.J. at 608. Ultimately, a sentence "must be affirmed unless it 'shocks the judicial conscience.'" Cassady, supra, 198 N.J. at 181.
We find no error in the judge's assessment and application of the aggravating factors cited, nor do we find the sentence excessive within the meaning of Roth. In considering the real-time consequence of the prison term imposed, we first observe that defendant was convicted of first-degree murder. The minimum sentence for that crime is thirty years in prison; life in prison is the maximum. N.J.S.A. 2C:11-3(b)(1). Because the prison term was subject to NERA, requiring service of eighty-five percent of the prison term before defendant may become eligible for parole, N.J.S.A. 2C:43-7.2, defendant will not be eligible for release until he serves approximately thirty-six years; that term is not significantly greater than the minimum sentence permitted for a first-degree murder conviction and, therefore, does not shock the judicial conscience, Roth, supra, 95 N.J. at 363-65.
In examining these factors, the judge considered that defendant had prior convictions — one as a juvenile and one as an adult — and that he also fled from the scene of the murder. In addition, the judge described the murder as "brutal" in that the victim's neck was "slashed from ear to ear." --------
We find insufficient merit in any of defendant's arguments that we have not already addressed to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded for reconsideration of the sentence and, if necessary, for further proceedings in those regards. 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