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State v. Mauricio

Decided: January 29, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL ANTONIO MAURICIO, DEFENDANT-APPELLANT



For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

[117 NJ Page 404] In an apparent case of mistaken identity, defendant, Manuel Antonio Mauricio, shot and killed one Gary Rizzo, believing him to be a bouncer who had thrown defendant out of a nightclub shortly before the killing. A jury convicted defendant of knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2), and of possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3(b). The trial court imposed an aggregate

term of life imprisonment with a thirty-year term of parole ineligibility and monetary penalties totaling $1025.

On his appeal to the Appellate Division, defendant claimed reversible error in the trial court's failure to instruct the jury on passion/provocation manslaughter and on aggravated manslaughter based on an intoxication defense. Defendant also argued that the prosecutor's statements during summation were so erroneously prejudicial as to require reversal. Finally, he asserted that the trial court erred in holding that an exculpatory portion of his out-of-court inculpatory statement was not admissible.

The Appellate Division, in an unreported opinion, rejected all of the foregoing contentions and affirmed the convictions. We granted defendant's petition for certification, 113 N.J. 371 (1988), and now reverse.

I

The Bottom of the Barrel Restaurant and Lounge is located on the east side of Bergenline Avenue between 38th and 39th Streets in Union City. The entrance to the discotheque area, known as the "Parrot Lounge," is at the top of three steps leading from the main door. At the top of the stairway there is a clear plastic partition with a glass door leading into the Lounge. The entrance to the restaurant is at the bottom of three steps descending from the main doorway.

Julio Rodriguez, a bouncer at the Bottom of the Barrel, was stationed at a table just inside the glass door of the Parrot Lounge during the early morning hours of March 16, 1984. At approximately two o'clock a male, later identified as defendant, entered the main door of the establishment and ascended the steps to the Lounge. When he asked Rodriguez the cost of admission, the bouncer told him it was five dollars. Defendant counted his money aloud. As Rodriguez reached for the money, defendant pulled it back and asked, "Five dollars?" Rodriguez answered, "Yes, five dollars." Defendant again started to

count his money aloud, this time speaking in a "yelling-type voice." Deciding that defendant had already had enough to drink, Rodriguez refused to admit him to the bar.

When Rodriguez told defendant to leave, defendant started "rambling." Rodriguez advised him to go home and have some coffee. According to Rodriguez, defendant started to "back away * * * [waving] his arms, at which time [Rodriguez] grabbed him by the arms and [] escorted him * * * down the three stairs and out the front door." The entire encounter lasted two minutes. Rodriguez could not recall at trial whether he had smelled alcohol on defendant's breath.

Two other people witnessed this first incident. Angela Shannon, a waitress at the Bottom of the Barrel, was seated at a stool inside the Lounge near the glass door. She noticed defendant on the other side of the glass door, talking to Rodriguez. Although she was unable to hear their conversation, she stated that it appeared that Rodriguez was not going to let the defendant into the Lounge. Shannon testified: "So, [Rodriguez] like started to push, and they fell. Both of them fell. Like you could hear a crack like as if one of them hit their head, and then there was commotion. They threw the guy out." On cross-examination, Shannon described the push that Rodriguez had given to defendant as a "nudge." Both men stood up shortly after falling.

The other witness to the first encounter between defendant and the bouncer was Robert Vecchione, general manager of the Bottom of the Barrel, who was closing the restaurant section when he heard some "commotion" upstairs. He approached the main entranceway and asked Rodriguez what had occurred, whereupon Rodriguez told him that he had refused to admit an intoxicated person and had escorted him outside. Vecchione then returned to the restaurant to finish locking up.

Approximately fifteen to twenty minutes later, defendant returned to the Lounge wearing a three-quarter-length overcoat in place of the wine-colored jacket in which he had been clad

earlier. According to Rodriguez, defendant started knocking on the partition with his left hand, all the while keeping his right hand in his coat pocket. Rodriguez, who was standing inside the Lounge, told defendant to leave and asked him to take his hand from his pocket. Defendant ignored his request. Rodriguez then opened the Lounge door "sharply," pinning defendant against the wall. He grabbed defendant by both arms, "put him down the stairs," and pushed him out the main entrance door. Rodriguez did not lock the door behind him.

During this second altercation, Shannon was standing in the stairway vestibule in front of the Lounge door, waiting for a ride home. She testified that defendant walked up the stairs to the partition, and that she called to Rodriguez because she did not know if defendant was going to "punch the glass or what." According to Shannon, defendant was "high * * * but not where he couldn't walk. He wasn't stumbling."

Shannon testified that Rodriguez was "madder the second time" because defendant had "the nerve to come back." When Rodriguez removed defendant again, she saw Rodriguez kick him.

Hearing "a lot of shouting," Vecchione again ran up to the Lounge and asked Rodriguez what had happened. Rodriguez told him that defendant had returned and that an altercation had ensued. Vecchione saw five twenty-dollar bills scattered on the floor near the main door. On learning that the money did not belong to Rodriguez, Vecchione opened the main door to find defendant, who was directly behind the door and had to step back to avoid being hit by it. When asked if the money was his, defendant nodded. Vecchione handed him the money and closed the door. Through a small window in the door, Vecchione noticed that defendant remained standing on the other side.

Still "a little leery," Vecchione again opened the main door minutes later. He walked out onto Bergenline Avenue and saw defendant standing at the northeast corner of Bergenline Avenue

and 38th Street. Defendant looked at Vecchione and gestured to him with his "palms upwards * * * [to] stop or go back." Vecchione then went inside to finish closing the restaurant.

The victim, Gary Rizzo, was at the Bottom of the Barrel that same morning. Shannon, who knew Rizzo, said that during both altercations Rizzo was inside the Lounge to her left. Shannon, Vecchione, and Rodriguez all testified that Rizzo had not been involved in any disputes that evening. According to Rodriguez, Rizzo left the bar at 2:35, five minutes after defendant had been thrown out the second time.

At approximately 2:30 a.m., Donald Siero, a friend of Rizzo, was driving southbound on Bergenline Avenue between 39th and 38th Streets. Bergenline Avenue is a well-lit, one-way street in a business district. While stopped at the intersection of 38th Street, Siero observed Rizzo talking to a man, later identified as defendant, on the east side of 38th and Bergenline. Although he could not hear the conversation, he saw Rizzo gesture to the man with his hands "like go away, get away from him."

Siero watched Rizzo cross 38th Street and walk towards Kennedy Boulevard, which runs parallel to Bergenline Avenue. Defendant also crossed 38th Street, but then stopped and knelt behind a grey Ford automobile. As Siero slowly pulled away from the intersection, he stared at defendant. According to Siero, defendant motioned to him as if to say: "[What] the hell are you looking at[?]"

Siero drove south on Bergenline until he reached the intersection of 37th Street, then rounded the block to the municipal parking garage behind Bergenline Avenue. He noticed Rizzo standing between two cars in the garage. As Siero entered the lot, he saw defendant shoot Rizzo, who then fell from sight. Defendant fired a second shot. Between shots, Siero heard defendant "laughing very ...


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