On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Michels, Muir, Jr., and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Cesario Martinez was found guilty in connection with the death of Ausberto "Hector" Rivera (Rivera) of reckless manslaughter, a crime of the second degree, in violation of N.J.S.A. 2C:11-4b, and possession of a weapon with the purpose to use it unlawfully against the person of another, a crime of the third degree, in violation of N.J.S.A. 2C:39-4d. The trial court merged defendant's conviction for possession of a weapon for an unlawful purpose into his conviction for manslaughter and committed him to the custody of the Commissioner of the Department of Corrections for a period of ten years, with a five-year period of parole ineligibility, and assessed a penalty of $25 payable to the Violent Crimes Compensation Board. This appeal followed.
According to the proofs, on the early afternoon of April 29, 1984, Rivera had been drinking, and was loitering outside of defendant's house, located at 63 Hills Place, Trenton. Hills Place is apparently an alley. When defendant walked outside to "get some fresh air," Rivera walked over to defendant and demanded that he hold his radio. Defendant took it and placed it on the ground. Rivera then demanded that defendant light a cigarette for him, which defendant refused to do. Rivera turned to defendant's uncle, Felipe Gonzales (Gonzales), who was sitting nearby, and said "look at the son of a bitch," referring to defendant. Defendant told Rivera that he was drunk and that he had better not look for any trouble. In
reference to an earlier incident, Rivera asked defendant why he had punched Gonzales in the eye. Defendant responded that Gonzales was his uncle and that the family dispute was none of his business. Rivera then asked defendant if he wanted to fight. Defendant told him that he was drunk and should go home.
Following his conversation with Rivera, defendant went inside his house and closed the front door. He saw his daughter hiding behind the sofa, but did not talk to her or ask her if or why she was frightened. He went into the kitchen, picked up a screwdriver and placed it in his pocket, and returned to the front door. According to defendant, he retrieved the screwdriver from the house "because I knew this guy wanted to fight me. I got it in case he had something in his pocket." Rivera was still standing outside of defendant's front door when defendant partially opened the door. Rivera again asked defendant if he wanted to fight. Defendant again told Rivera to go home, whereupon Rivera swung his radio at defendant, hitting the edge of the door.
Immediately defendant opened the door and swung his fist at Rivera. Rivera grabbed defendant by the hair as defendant attempted to strike him. The two struggled for "quite a while." Rivera hit defendant "a couple of times on top of the head." Defendant tried to strike Rivera with his fists but was unable to land any punches because Rivera was holding his head down by the hair. Ultimately, defendant reached into his pocket, pulled out the screwdriver and stabbed Rivera several times, inflicting fatal stab wounds to his heart and lung. Defendant later that day stated to police that, "even after I stabbed him, he kept fighting me."
When defendant's neighbor, Alfonso Ramos (Ramos), saw the two men fighting, he rushed over and eventually separated them. Ramos saw defendant strike Rivera once in the mouth as Rivera held him by the hair. As Ramos separated the two men, Rivera took a few steps backward and collapsed. Defendant
went back into his house and looked out from the second floor window.
The police officers who responded to the scene observed Rivera lying unconscious on his back in the middle of the street, about 12 to 15 feet from defendant's door. The victim was taken to St. Francis Hospital by Patrolmen Martucci and Ragazzo.
Shortly thereafter, defendant was questioned by police about the incident. Patrolman Forker noticed that defendant was quivering and shaking. When the patrolman asked him what was wrong, defendant replied that he had just gotten into a fight with the person who had been taken to the hospital. After Patrolman Forker advised him of his Miranda rights, defendant admitted that he had stabbed Rivera with a screwdriver and had thrown the screwdriver into the alley. Patrolman Forker placed defendant under arrest. The police found the screwdriver in the street near a telephone pole on the opposite side of Hills Place.
Defendant was taken to Trenton Police Headquarters where he was again read his Miranda rights. Defendant signed a form acknowledging that he understood those rights, and issued a statement. In the statement, defendant related the facts of the incident, and described the fatal conflict. Defendant stated that "[Rivera] grabbed me by the hair, then I reached in my pocket and got out the screwdriver. Then I stabbed the guy with it. I know I stabbed him at least one time. I felt it go into him."
Defendant admitted at trial that he had stabbed Rivera with the screwdriver, but claimed that he "just wanted to get [Rivera] off of me," and did not want to kill him. Defendant maintained that Rivera, during the argument outside before defendant picked up the screwdriver, had been putting his hand in his pocket, which led defendant to believe that Rivera might have "something" there. Defendant acknowledged, however, that Rivera never threatened him with any weapon.
At the conclusion of the proofs, the jury found defendant guilty of reckless manslaughter and possession of a weapon for an unlawful purpose. This appeal followed.
Defendant seeks a reversal of his convictions and a remand for a new trial or, alternatively, a modification of his sentence on the following grounds set forth in his brief:
I. THE COURT'S INADEQUATE AND MISLEADING INSTRUCTION ON DEFENDANT'S IMMUNITY FROM THE DUTY TO RETREAT CONSTITUTES REVERSIBLE ERROR.
II. THE DEFENDANT WAS PREJUDICED BY THE COURT'S REFUSAL TO INSTRUCT ON THE DEFENSE OF OTHERS.
III. THE PROSECUTOR'S PREJUDICIAL STATEMENTS DURING SUMMATION, ENCOURAGING THE JURY TO DRAW A PROHIBITED INFERENCE, VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND EVIDENCE RULE 55 AND REQUIRE REVERSAL.
IV. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE (Raised as Plain Error).
V. THE COURT'S INSTRUCTION ON THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONSTITUTES REVERSIBLE ERROR. (Raised as Plain Error).
VI. THE COURT INFRINGED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT REFUSED TO ASK HIS PROPOSED QUESTIONS OF POTENTIAL JURORS.
VII. THE TRIAL COURT'S SENTENCING FINDINGS ARE NOT SUPPORTED BY THE EVIDENCE AND ITS SENTENCING DECISION MUST ...