On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, Deighan and R.s. Cohen. The opinion of the court was delivered by Deighan, J.A.D.
Defendant Antonio Sanchez appeals from a jury conviction for murder in violation of N.J.S.A. 2C:11-3a(1), (2) (count 1); possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (count 3), and two counts of unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b (counts 4 and 5). On count 1, he was sentenced to a life-term with a 30-year parole ineligibility; on count 3, to a ten-year term concurrent with the sentence on count 1, and on count 4, to a five-year term concurrent with the sentence on count 1. Count 5 was merged with count 4.
Pretrial motions by defendant for severance from trial with co-defendant Luis Columbie and to suppress the evidence were denied.
These are the facts developed at trial. On April 4, 1984, at approximately 6 a.m., defendant and a co-defendant, Luis Columbie, entered apartment 2B at 448 North 5th Street, Newark, carrying two weapons, later identified as a sawed-off shotgun and a sawed-off rifle. Defendant initially entered the bedroom of 13 year-old Juan Bultron who lived in the apartment, looking for Dino Castillo, the victim's brother. Defendant and Columbie then entered the kitchen where the victim, Enrico Castillo, was sleeping in a chair. Columbie demanded repayment of a $10 debt he claimed was owed by the victim. Castillo then gave them money and, as they were leaving, a shotgun blast was
heard. The blast hit Castillo in the face, neck, chest and right hand resulting in his death. The two assailants escaped in an automobile.
The incident was witnessed by Ramona Rodriquez and three children, Juan and Roxanna Rodriquez and Juan Bultron. All three children testified for the State; Ramona Rodriquez died prior to trial.
Juan Rodriquez was in bed when the incident occurred but he awoke and saw both defendants enter the apartment carrying guns. He was able to see what occurred in the kitchen by the reflection in a large mirror in his bedroom. However, he did not observe which defendant actually shot Castillo. Roxanna Rodriquez, who was in the hallway when the incident occurred, also saw both men enter the apartment with guns, heard a shot and saw defendant's gun "go up".
Juan Bultron was asleep in his bedroom when defendant, who was looking for the victim's brother, awakened him. He observed defendant and Columbie carrying guns. Bultron then saw Columbie shoot the victim, after which the defendant left the apartment. He had previously known both defendant and Columbie but was more acquainted with defendant. Bultron also saw a third party whom he identified as "Juanito" enter the apartment. On cross-examination, Bultron admitted he previously told the police that defendant killed Castillo but explained that he had been confused and it was just Columbie who shot the victim. Later he stated it could have been either one of the two men who shot the victim. Approximately six hours after the homicide, Juan Bultron readily picked out defendant from a photo array as one of the assailants.
The police questioned other occupants of the apartment building who related the events which occurred that morning and also named both defendants. They recognized defendant and Columbie because both had often played cards with the victim and his brother Dino.
Warrants were issued for the arrest of both defendants and, acting on information received, the police set up a surveillance at 691 Elizabeth Avenue, Newark, the apartment of Carmen Rivera, a friend of one of the assailants. During the surveillance, one of the detectives saw defendant Sanchez come out of the apartment building, approach a parked car, open the passenger door and appeared to remove something from under his coat and place it in the car. Defendant then left the vehicle, met with two unidentified men and went back into the apartment building.
Subsequently, Columbie came out of the apartment building with a female, later identified as Carmen Rivera. He walked to the same vehicle and also appeared to remove something from under his coat and place it on the front seat. At that point, two of the detectives who were on surveillance approached Columbie who, upon seeing the officers, slammed the car door shut and attempted to flee but was apprehended. When the officers took Columbie back to the vehicle, they observed a sawed-off shotgun and sawed-off rifle on the front seat. Both of the weapons, which were loaded, were confiscated and Columbie was arrested.
In the meantime, one of the detectives pursued Carmen Rivera, who ran back into the apartment building to a fifth floor apartment, where the detective found defendant and placed him under arrest. Defendant had two suitcases, one of which was identified as his and the other as belonging to Columbie.
At trial, defendant testified that on the day in question he was moving to Union City and that Columbie picked him up at 5:30 a.m. Juan Diaz, also known as Juanito, was in the car. They then drove to Fifth Street where the victim Castillo lived. When defendant learned that they were going to Castillo's apartment, he urged them not to go there because he knew that Castillo and Columbie had a fight several days earlier.
Upon arriving at Castillo's apartment, Columbie carried a plastic bag but defendant denied that he knew what was in it. An argument ensued between Columbie and Castillo; defendant and Juanito, who also came into the house, broke up a fight between Columbie and Castillo. After they stopped the fight, defendant left the kitchen and went to Bultron's room and spoke to Ms. Rodriquez. At that point, Columbie gave defendant the plastic bag, which defendant learned for the first time contained a rifle. Although he did hear a shot, defendant did not see anything and left the apartment with Columbie. As they left, defendant asked Columbie what had happened; Columbie responded that he only shot to scare Castillo but did not hit him. Defendant went back to the apartment of Josephine Ortiz, who apparently lived with Carmen Rivera, and was arrested later that evening.
Co-defendant Columbie, who also testified at trial, gave quite a different version of the events on the morning of the homicide. Columbie testified that defendant and Juanito picked him up at his home at approximately 6 a.m. Defendant drove to the victim's apartment and, as they entered the apartment, no one was armed. Defendant left the kitchen, returned with a weapon in his hand and demanded repayment of money from Castillo. When Castillo would not pay the debt, defendant hit him with his weapon. An argument broke out and although Columbie heard the shot, he did not see who fired it. Columbie indicated that Juanito was also armed. Columbie did not go to the authorities because he was nervous; eventually he went to the apartment of his girlfriend, Josephine Ortiz, where he was subsequently arrested.
On appeal, defendant presents the following issues:
POINT I The Court Committed Reversible Error When It Refused Counsel's Request To Charge The Jury On The Lesser Included Offenses Of Reckless And Aggravated Manslaughter And Manslaughter.
POINT II The Statements Made By The Defendant While In Custody Should Not Have Been Admitted Into Evidence.
POINT III Defendant Was Denied A Fair Trial Where It Appeared That The Co-Defendant Would Testify To Exculpate Himself And Incriminate Defendant.
POINT IV The Court Committed Reversible Error When It Admitted Gruesome Photographs Of The Victim Into Evidence.
POINT V The Court Committed Error When It Failed To Allow Cross Examination Of A State's Witness.
Under Point I, defendant contends the trial court erred in denying his request to charge on the lesser-included offenses of aggravated manslaughter and manslaughter. The trial judge refused to charge on these offenses because he stated the evidence supported either a conviction of murder or acquittal.
A trial judge is required to charge the jury as to the lesser-included offense where an appropriate request for a suitable charge is made and when there is a rational basis to find that defendant is not guilty of the more serious offense but may be guilty of the lesser-included offense. N.J.S.A. 2C:1-8e; State v. Saulnier, 63 N.J. 199, 206-207 (1973); accord, State v. Choice, 98 N.J. 295, 298-299 (1985). Although a defendant charged with murder is entitled to an instruction on manslaughter whether or not the manslaughter is consistent with his theory of defense, State v. Powell, 84 N.J. 305, 317 (1980), if the proofs support only a conviction of murder or acquittal, any lesser degree of homicide should not be charged as a possible verdict. State v. Selby, 183 N.J. Super. 273, 280 (App.Div.1981).
The trial judge must examine the record to determine whether the rational basis test has been satisfied, State v. Crisantos, 102 N.J. 265, 278 (1986), and whether the jury could reasonably return a verdict of guilty on the lesser-included offense. State v. Hollander, 201 N.J. Super. 453, 473 (App.Div.1985) certif. den. 101 N.J. 335 (1985); State v. Clarke, 198 N.J. Super. 219, 224 (App.Div.1985). It is necessary then to ...