On appeal from the Superior Court of New Jersey, Law Division, Essex County.
J.h. Coleman, Shebell and Conley. The opinion of the court was delivered by Shebell, J.A.D.
[265 NJSuper Page 532] Defendant, Pedro Vasquez, appeals his jury convictions of murder (N.J.S.A. 2C:11-3a(1), (2)) and third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). He also appeals the sentence imposed of life imprisonment with a thirty-year
parole ineligibility term on the murder conviction and the concurrent term of three years on the possession of a weapon for an unlawful purpose conviction.
This case involves the death of defendant's girlfriend, whose death was reported to the police by defendant's cousin, Raphael Freire. Defendant and the victim lived together in an apartment in Newark. Defendant's sole theory throughout the trial was that Freire, not defendant, killed her.
Defendant's cousin, Freire, testified that on February 29, 1988, he received a phone call from defendant. Defendant claimed there was an emergency and that he needed Freire to come to his home. Later, defendant told his cousin that he was having problems with his girlfriend. Freire recommended that defendant leave her if the situation was bad. On cross-examination, Freire testified that defendant told him she wanted to leave defendant.
The next day defendant allegedly came to Freire's home at approximately 10:00 p.m. and requested that Freire take him home. When they arrived at defendant's home, he told Freire he needed a "big favor." He wanted to borrow Freire's car because he had to throw something away. Freire told defendant to wait for the regular garbage removal, but defendant said he could not wait. Freire would not loan defendant the car, but agreed to help him.
Defendant made two trips into the apartment and returned with several small, dark-colored garbage bags, which he put in the trunk of Freire's car. Defendant then asked Freire to drive him to several different locations. At the various locations, Freire would park the car, and defendant would dispose of a bag nearby. Freire asked defendant what was in the bags, but defendant would not tell him. After they made the last stop, Freire testified that the following Discussion occurred.
He [defendant] said "That was [the victim] in the bag," and I said "What you mean [the victim]?" He said "I killed her." I said "[Defendant], why you do that for?" He says "I just got mad at her, we had an argument and she tried to stab me," And he then showed me like a little wound on his arm.
He said that she tried to stab him with a knife so then he grabbed her by the throat, he hit her, knocked her down, then he said he had stabbed her, then he said he dragged her in the bathroom, he took off all his clothing and he started just cutting her.
He had told me he put them [pieces of the victim's body] in the refrigerator, he had put them in the refrigerator and left them there overnight and then he came to pick me up that Tuesday.
Freire testified that he did not go directly to the police because defendant was his cousin, and Freire "had so much faith in him." Freire cleaned out the trunk of his car prior to reporting the events to the police. Freire claimed that defendant used defendant's mother's car to dispose of the "big portion" of the body.
The medical examiner who conducted the autopsy stated that the cause of death was asphyxia by strangulation. The body revealed small hemorrhages over the eyelids and face as well as scars on the neck which were compatible with fingernails. The victim had also suffered a stab wound to the left side of her chest. Although this wound entered the chest, it did not puncture her lung. The stab wound was also listed as a potential cause of death. The medical examiner offered his opinion that the victim died prior to being dismembered.
Various evidence recovered from defendant's apartment revealed the following. Human flesh was discovered on the bedroom floor. Dried blood was found on the back of a door jamb. An area near the bathroom tub drain and also the drain screen tested positive for blood. A swab taken from the trunk of a car registered to defendant also tested positive for blood.
The victim's sister testified that on February 28 or 29, 1988, her sister told her she wanted to leave defendant and return home to live. On February 29, she spent at least part of the day with the victim. They arrived at their mother's house at approximately 5:00 p.m. Defendant was there when they arrived, and the sister testified that, "[T]hey were sitting in the chair and the next thing
I know he [defendant] jumped up and he had a knife in his hand and he pushed her out of the way and then he ran out of the house." The knife was approximately eight inches long.
Defendant was arrested on March 4, 1988. He had a minor bruise around his left eye and a minor scratch on his right shoulder. There were also small scratches on one of his fingers and on his wrist.
Defendant testified that when he arrived home on the afternoon of February 29 after visiting the victim's mother's residence, he attempted to repair the washing machine which was located next to the bathroom. At around 6:00 p.m., he noticed that it was getting dark outside and decided to find his girlfriend. Defendant walked around the neighborhood. As he was returning but still two houses away from his residence, he saw Freire coming down the stairs. Defendant did not enter the house because Freire told him that his girlfriend was not home.
Defendant, Freire, and Freire's five-year old son went to a local bar where they had a few drinks. After a short time, all three returned to defendant's residence. Freire stated that he was coming inside, but left his son in the back seat of the car. When they entered the apartment, defendant saw the victim laying on the couch, undressed from the waist down. Defendant stated that he called out to her, but she did not respond. He said he noticed "[f]oam coming out of her nose." Freire then told him that she was dead.
Defendant claimed he started yelling, and Freire punched him in the chest and told him to "shut up." When defendant said they should call the police, Freire told him not to. "[H]e said if I called the police they're not going to believe me because it happened in my house."
Freire then allegedly began "grabbing" the body and dragged it from the living room to the bedroom. Freire went out to his car to retrieve something and returned to the bedroom. Freire was in the bedroom for some time, and then walked into the living
room carrying a long knife, approximately fourteen to eighteen inches long. Freire touched defendant's shoulder with the knife, and they walked into the bedroom. When they got near the bathroom, Freire insisted that defendant take the knife, which he did.
When defendant walked into the bathroom, he noticed the victim's face in the tub, and then saw that her left arm was missing. He testified he ran from the bathroom and tried to leave the apartment, but Freire stopped him by holding the knife at him. Defendant stayed in the living room while Freire returned to the bathroom. After some time Freire asked defendant if he had any bags. Freire eventually came out of the bathroom carrying one bag. They then left the house and went to the car. They drove around for a while, and Freire told defendant that he could not tell anyone what happened. Freire gave defendant five dollars and then dropped him off in front of defendant's house.
Defendant testified that he walked the streets all night and did not reenter his residence until the next afternoon. That night defendant went to Freire's house. They returned to defendant's apartment, and Freire started "pulling bags out of the freezer." Defendant claimed that they carried a total of six bags to the trunk of Freire's car.
They began driving around and when they reached an area near Avenue P, Freire insisted that defendant get a bag from the trunk. Defendant threw the bag into the weeds. The same thing happened at several other locations. At the various sites, either defendant or Freire would throw the bags out. At one point, they were pulled over by the police, and defendant merely asked for directions.
On cross-examination, defendant testified that he did nothing to ascertain whether his girlfriend was actually dead when he saw her on the couch. He did not check her, or call any medical personnel. Defendant denied ever using his mother's car. When asked about the injuries he had at the time of his arrest, defendant claimed that the victim cut him on the wrist with his knife
while they were at her mother's house, but that they were only "playing." Defendant claimed that he and the victim planned to be married on April 2, 1988.
The only other person to testify on defendant's behalf was Edward Norton. Norton testified that he was with defendant and the victim on February 29, 1988 at approximately 6:30 a.m. They had been at a local bar the night before and went to Norton's house when the bar closed. Norton had been a printer for fourteen years, and while they were at his house, he showed defendant and his girlfriend wedding invitations.
In his brief on appeal defendant raises the following legal arguments:
POINT I: BY FAILING TO GIVE AN INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER WHEN ASKED BY THE JURY TO EXPLAIN MURDER AND AGGRAVATED MANSLAUGHTER, THE TRIAL COURT DEPRIVED DEFENDANT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT AND OF HIS RIGHT TO A FAIR TRIAL UNDER OUR STATE CONSTITUTION. .
POINT II: DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT AND THE STATE CONSTITUTION BY THE VERDICT SHEET WHICH THE COURT SUPPLIED TO THE JURY FOR THEIR DELIBERATIONS. THE VERDICT SHEET AND THE COURTS ORAL INSTRUCTIONS REGARDING THE VERDICT SHEET EFFECTIVELY PREVENTED THE JURY FROM CONSIDERING A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER. .
POINT III: THE COURT'S FAILURE TO INSTRUCT THE JURY ON SELF-DEFENSE DEPRIVED DEFENDANT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT AND OF HIS RIGHT TO A FAIR TRIAL UNDER OUR STATE CONSTITUTION. .
POINT IV: THE TRIAL COURT'S FAILURE TO CHARGE THE JURY AS TO THE IMPACT OF IMPERFECT SELF-DEFENSE ON THE MURDER CHARGE DEPRIVED DEFENDANT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT 0 AND OF HIS RIGHT TO A FAIR TRIAL UNDER OUR STATE CONSTITUTION. .
POINT V: THE DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT AND THE STATE CONSTITUTION BY THE ADMISSION OF HEARSAY EVIDENCE REGARDING THE DECEDENT WHICH WAS UTILIZED BY THE STATE TO DEMONSTRATE DEFENDANT'S MOTIVE. .
POINT VI: DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT AND THE STATE CONSTITUTION BY THE ADMISSION WITHOUT ANY LIMITING INSTRUCTION OF THE ENTIRE STATEMENT WHICH THE STATE'S CRUCIAL WITNESS GAVE TO THE POLICE. .
POINT VII: DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT AND THE STATE CONSTITUTION BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY THAT THE DEFENDANT'S PRE-ARREST SILENCE WAS RELEVANT ONLY AS TO HIS CREDIBILITY. 1 .
POINT VIII: NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARA. 1). (PARTIALLY RAISED BELOW).
POINT IX: DUE PROCESS REQUIRES THAT DEFENDANT'S CASE BE REMANDED FOR A NEW SENTENCING HEARING INASMUCH AS THE EXTANT RECORD DOES NOT AFFORD THE BASIS FOR A MEANINGFUL APPEAL.
POINT X: THE TRIAL COURT ERRED IN IMPOSING A LIFE SENTENCE AND IN FAILING TO MERGE THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO HIS CONVICTION FOR MURDER.
Defendant contends that his due process rights and his right to a fair trial were violated because the trial court failed to provide an instruction on passion/provocation manslaughter when the jury asked for an additional charge on murder and aggravated manslaughter. Defendant further contends that the trial court erred in its initial charge by instructing on the elements of murder first and then subsequently charging passion/provocation manslaughter. Defense counsel made no objection to either.
The court instructed the jury on murder as follows:
Murder 2 is defined as the unlawful killing of one person by another purposely or knowingly. A person who commits a killing does so purposely when it is his conscious object to cause death or serious bodily injury resulting in death.
A person who commits a killing does so knowingly when he is aware that what he is doing will cause death or serious bodily injury resulting in death or is practically certain to cause death or serious bodily injury resulting in death.
You will note that I have used the words "purposely" and "knowingly." The nature of the purpose or knowledge with which the Defendant acted towards the decedent is a question of fact for you the jury to decide.
The essential determination for you to make in regard to the charge of murder is whether the Defendant committed the killing purposely or knowingly as I have defined these terms for you.
In order for you to find the Defendant guilty of murder the State must first establish beyond a reasonable doubt that the killing of the decedent was committed by the Defendant and was done purposely or knowingly as I have defined these terms for you.
If after a consideration of all the evidence you are convinced 3 beyond a reasonable doubt that the Defendant either purposely or knowingly caused the death of the victim and the State has also proved beyond a reasonable doubt the absence of what's called reasonable provocation as I shall later define for you, then the State has established the elements necessary for a murder conviction. [Emphasis added.]
The court, after instructing on murder, next gave a full instruction on the elements of aggravated manslaughter. The court then returned to its Discussion of passion/provocation manslaughter:
Now, as I told you before, when I charged murder, the elements I mentioned as to knowingly or purposely, the State must also prove beyond a reasonable doubt the absence of reasonable provocation. I will explain that further to you and how that applies to murder.
The homicide which would otherwise be murder is manslaughter when the killing is committed in the heat of passion resulting from a reasonable provocation. In this connection you must keep in mind that provocation in law has a fixed meaning. If there was provocation of such character as is recognized by the law and it was acted upon under circumstances which the law recognizes then 4 the crime is manslaughter.
The court defined the elements which constitute passion/provocation manslaughter. The court then stated:
If you are not satisfied beyond a reasonable doubt that the Defendant did in fact cause the victim's death or the Defendant acted purposely or knowingly then you must find the Defendant not guilty of murder.
If you are satisfied beyond a reasonable doubt that the Defendant knowingly or purposely caused the victim's death but you have a reasonable doubt as to whether
he did so in the heat of passion upon reasonable provocation, then you must find the Defendant guilty of manslaughter.
If you are convinced beyond a reasonable doubt that the Defendant knowingly or purposely caused death or serious bodily injury resulting in death without acting in the heat of passion upon reasonable provocation, you must find the Defendant guilty of murder.
In addition to the State's obligation to prove the elements of knowing or purposeful murder the burden is always on the State to prove beyond a reasonable doubt that the actions were not done in the heat of passion or upon reasonable provocation. [Emphasis added.]
At the end of the trial court's 5 charge, defense counsel specifically noted on the record that he had no objection.
During deliberations the jury requested a redefinition of murder and aggravated manslaughter. In response the Judge repeated the instructions for murder that he had previously given. The Judge then began:
If you also find the State has proved beyond a reasonable doubt the absence of a reasonable provocation as I have already defined for you, if however --
The prosecutor interrupted at this point and asked to be seen at side bar. The prosecutor commented that the jury request "asked for redefinition of murder and aggravated manslaughter. It does not ask for a redefinition of manslaughter, Judge." The court noted the prosecutor's objection, but continued:
If also the State has proved beyond a reasonable doubt that absence of reasonable provocation as I have defined it for you, then the State, of course, has established the elements of murder. If, however, after consideration of all of the evidence you find the State has failed to prove each and every element, your verdict must be not guilty of murder. [Emphasis added.]
The court then redefined aggravated manslaughter but did 6 not redefine passion/provocation manslaughter. At the close of the supplementary instruction, the court again asked counsel if they "wish[ed] to be heard." The prosecutor and defense counsel each responded, "No."
While the law now requires that a trial court provide an instruction on passion/provocation during its initial murder charge where the evidence supports passion/provocation manslaughter, the law was not clear at the time defendant was tried in 1988. The trial court's initial charge on murder referred to the State's
burden of disproving heat of passion beyond a reasonable doubt. Thereafter, the court further stressed the State's burden in connection with the passion/provocation manslaughter charge. Again, when giving the supplementary charge, the Judge instructed that the jury could not convict of murder unless it found that the State had proven the absence of passion/provocation beyond a reasonable doubt.
When the record contains evidence of passion/provocation, a charge that does not include a specific instruction 7 that the State must disprove passion/provocation before the jury can find defendant guilty of murder is fatally flawed -- even when the instructions contain general ...