Before Judges Shebell, D'Annunzio and Coburn.
The opinion of the court was delivered by: Shebell, P.j.a.d.
 Submitted May 28, 1998
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Defendant, Luis Angel Torres, and a co-defendant, Luis Gamboa, were charged as juvenile offenders arising out of an armed robbery and murder that took place on September 6, 1991, at the D'Oro Jewelry Store in Union City. Upon the State's motion for waiver of juvenile jurisdiction seeking to try them as adults, a hearing was conducted on January 22, 23, and 24, 1992. At the completion of the hearing, the Judge ordered both juveniles waived to adult court.
Torres and Gamboa were indicted on March 4, 1992, as follows:
count one, knowing or purposeful murder (N.J.S.A. 2C:11-3(a)(1) or (2)); count two, felony murder (N.J.S.A. 2C:11-3(a)(3)); count three, armed robbery (N.J.S.A. 2C:15-1); count four, possession of a handgun for an unlawful purpose (N.J.S.A. 2C:39-4(a)); and count five, possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)).
The two were tried separately. Defendant was tried first. On June 10, 1993, the trial Judge held a Rule 8 (now N.J.R.E. 104(c)) hearing to determine the admissibility of:
(1) statements made by defendant to Joel Maestre, a correction's officer at the Hudson County Youth House; and (2) the statement defendant gave to police on the night of his arrest. At the Conclusion of the hearing, the Judge ruled that both statements were admissible. Defendant's jury trial lasted six days and concluded on June 22, 1993, when the jury returned a verdict convicting defendant on all counts.
On August 4, 1993, defendant was sentenced to a term of life imprisonment with a thirty-year parole ineligibility period on count one, a term of eighteen years with a six-year parole ineligibility period on count three, *fn1 and a term of five years on count five. The sentences were to run concurrently. For sentencing purposes, the judge merged count two into count one and count four into count five.
Defendant appeals, raising the following legal arguments:
THE FAILURE OF DEFENSE COUNSEL OR THE COURT BELOW TO ADVISE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF AT THE WAIVER HEARING REQUIRES THAT THE WAIVER RULING BE VACATED AND A NEW HEARING HELD. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 10. (NOT RAISED BELOW).
THE PROSECUTOR'S QUESTIONS DURING TRIAL AND COMMENTS DURING OPENING STATEMENTS AND SUMMATION ON DEFENDANT'S POST-ARREST SILENCE DENIED DEFENDANT HIS RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF A FAIR TRIAL. U.S. CONST. AMEND. V, VI. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (RAISED IN PART BELOW).
THE PROSECUTOR'S IMPROPER QUESTIONS, AND IMPROPER REMARKS DURING SUMMATION, WERE SO EGREGIOUS THAT DEFENDANT WAS DEPRIVED OF A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 9. (RAISED IN PART BELOW).
A. The Prosecutor Commented on Defendant'sPost Arrest Silence.
B. The Prosecutor Misstated The Law,Appealed To Emotion and Denied DefendantThe Presumption Of Innocence.
C. The Prosecutor's Argument That TheBallistics Testimony And Other PhysicalEvidence Proved That Gamboa Was TellingThe Truth Amounted To Testifying By TheProsecutor As A Ballistics And Crime Reconstruction Expert, Was Based OnFacts Not In Evidence, And Resulted InElaborate And Improper Vouching ForGamboa's Credibility By The State. (Not Raised Below).
D. The Prosecutor's Argument That The StateHad Made No Plea Agreements or Promisesto Gamboa In Exchange for His StatementAnd Testimony, Inviting The InferenceThat Gamboa Therefore Had No Interest In The Outcome Of This Trial, WasMisleading. In Addition Such StatementsAmounted To Elaborate Vouching For TheCredibility Of Gamboa. (Not Raised Below).
E. The Prosecutor Suggested to the JuryThat Their Duty Was To Convict TheDefendant. (Not Raised Below).
F. The Prosecutor Misstated The Testimony.
G. The Prosecutor's Representation That TheAutopsy Photographs ConstitutedEyewitness Testimony Was Improper.
H. The State Elicited Testimony Concerning Defendant's Impecuniosity. (Not RaisedBelow).
I. The State Elicited Testimony FromDefendant Characterizing A State'sWitness As A Liar.
THE TRIAL COURT DENIED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL DUE TO ITS WOEFULLY INADEQUATE INSTRUCTION TO THE JURY ON THE LAW REGARDING HOW TO EVALUATE THE CREDIBILITY OF GAMBOA, AN ACCOMPLICE AND THE CHIEF PROSECUTION WITNESS AGAINST DEFENDANT. IN ADDITION BASED ON THE FACTS OF THIS CASE, THE COURT SHOULD HAVE SUA SPONTE INSTRUCTED THE JURY THAT THE STATE COULD OFFER GAMBOA A PLEA AGREEMENT OR SENTENCE REDUCTION AFTER TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (NOT RAISED BELOW).
A. The Trial Court's Instruction To TheJury On "Expectation of Benefit" WasTotally Inadequate Since The Model JuryCharge On Accomplice Liability Was Required.
B. The Trial Court Should Have Sua Sponte Instructed The Jury That The State HadThe Authority To Offer Gamboa A PleaAgreement Or Sentence Reduction AfterDefendant's Trial.
THE COURT'S INSTRUCTIONS TO THE JURY WHICH ERRONEOUSLY DEFINED THE AFFIRMATIVE DEFENSE OF DURESS AND INCORRECTLY STATED THE STATE'S BURDEN OF PROOF AS TO DURESS; ERRONEOUSLY EXPLAINED THAT ACCOMPLICE LIABILITY COULD BE PROVED BY SHARED INTENT OR PARTICIPATION; AND ERRONEOUSLY INSTRUCTED THAT A KNOWING STATE OF MIND WAS SUFFICIENT TO PROVE ACCOMPLICE LIABILITY, DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, PAR, 1, 9, 10. (NOT RAISED BELOW).
A. The Instruction On Duress.
B. The Accomplice Liability InstructionErroneously Allowed The Jury To FindAccomplice Liability Based On EitherShared Intent Or Actual Participation.
C. The Accomplice Liability InstructionErroneously Allowed The Jury To FindAccomplice Liability Based On A KnowingRather Than A Purposeful State Of Mind.
OTHER CRIMES EVIDENCE, CONSISTING OF TESTIMONY FROM A DETENTION OFFICER THAT DEFENDANT TRIED TO BRIBE HIM, AND TESTIMONY THAT DEFENDANT HAD DISTRIBUTED COCAINE TO THE CO-DEFENDANT, ADMITTED WITHOUT A HEARING AND WITHOUT LIMITING INSTRUCTIONS, DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
DEFENDANT'S ALLEGED STATEMENTS TO A DETENTION OFFICER SHOULD HAVE BEEN EXCLUDED BECAUSE DEFENDANT WAS QUESTIONED BY THE OFFICER IN A CUSTODIAL SETTING WITHOUT THE BENEFIT OF MIRANDA WARNINGS AND IN THE ABSENCE OF COUNSEL. (RAISED IN PART BELOW).
THE DOUBLE HEARSAY TESTIMONY OF DETECTIVE ANGERMAYER, RELATING WHAT HE WAS TOLD BY GARCIA TELLING WHAT HE WAS TOLD BY GAMBOA, WAS INADMISSIBLE HEARSAY AND DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
THE JUDGE ABUSED HIS DISCRETION IN SENTENCING THE 16-YEAR OLD DEFENDANT TO THE MAXIMUM SENTENCE FOR MURDER BECAUSE THE JUDGE DID NOT CONSIDER DEFENDANT'S LACK OF A PRIOR CRIMINAL RECORD OR HIS YOUTH AS MITIGATING FACTORS.
The co-defendant, Gamboa, testified on behalf of the State that he and defendant had met in school and had known each for about five months when on September 6, 1991, they carried out the armed robbery of the jewelry store. They had planned the robbery the day before with Carlos Cruz who gave defendant the gun. The plan was to tie up the owner, Andy Shum. Defendant was supposed to point the gun at the victim, getting him away from the alarm, while Gamboa tied him up. They planned to take Shum into the bathroom and then rob the store. According to Gamboa, defendant told him that he knew the owner and had previously sold him stolen jewelry.
On the day of the robbery, Gamboa was on the corner by the high school drinking with friends, when at about noon, defendant came along. They hung around talking to girls until about 3:30 p.m. At about 4:00 p.m., they walked to the jewelry store. Defendant had a black bag with the gun in it. Gamboa carried a bag containing the rope. When they arrived, Shum buzzed them in and defendant asked if he wanted to buy some jewelry. Shum said that he did. Defendant said they had to go get the jewelry and that they would be back later. They went to the store that first time to check for alarms. When they returned fifteen minutes later, defendant told Shum he had jewelry in the black bag. Defendant reached in the bag, took out the gun and shot Shum once in the neck from about three feet away, even though Shum had raised his hands. About three seconds later, defendant again shot Shum in the temple at an even closer range. Shum died as a result of a laceration and edema of the brain caused by that gunshot wound. Gamboa asked defendant why he had shot Shum, and defendant answered that he had to because he would recognize them.
Gamboa knew defendant had the gun and that there was going to be a robbery but maintained that shooting the man was not part of the plan. In his original statement to the Union City Police in September 1991, Gamboa had said that he did not know that defendant planned on bringing a gun to the robbery. However, in his subsequent statement on January 11, 1993, to the Hudson County Prosecutor's Office, Gamboa said that he knew about the gun and was there the night before the robbery when Cruz gave defendant the gun. A latent print lifted from the counter was identified as defendant's right palm print.
At trial, a detective testified that Javier Garcia had gone to another detective, who lived across the street from Garcia, and told him that he knew who was responsible for the shooting and robbery at the jewelry store. Garcia was brought to headquarters where he told police that both individuals were named Luis, but he did not know their last names. However, he gave full descriptions of both. He gave police the address and pointed out where "the first Luis" (Gamboa) lived on Eighth Street. "The second Luis" (defendant) had a girlfriend named Lucy, who was pregnant and lived on Ninth Street and New York Avenue in Union City. Garcia told police that on the night of the incident, Gamboa had told him that defendant was the shooter. The officers drove around with Garcia who was able to point out Gamboa as the one who had told him the story of what had happened.
On September 8, 1991, two days after the crime, Gamboa was arrested for aggravated assault with a handgun. After Gamboa was arrested, he accompanied the police to a bush where a .25 caliber automatic pistol was recovered. He said defendant had put it there after the shooting. In his formal statement to the police, Gamboa identified defendant as having been with him in the store that night and as having been the shooter. Gamboa said that he was aware that he was going to a store to rob it as he and defendant had discussed it the night before. Based upon that conversation, the detectives went to search for defendant. Two officers waited outside of defendant's house and arrested him when he came outside. Defendant was with his girlfriend. He was read his rights and transported to headquarters.
The police called defendant's mother who responded to the police station. She did not speak English, so a detective acted as interpreter. She was allowed to speak to her son who was in the interrogation room. Defendant was calm as to his arrest but was upset with Detective Caputo because he had transported defendant's girlfriend to headquarters. Defendant was again read his rights, and at 9:45 p.m., defendant and his mother initialed the Miranda waiver card. However, defendant then told Caputo that he did not like his attitude and would not speak to him.
That same evening, Detective Brian Barrett was off-duty, but had stopped at headquarters on his way home from the shore. He offered to sit with defendant who was waiting to be transported. Defendant asked Barrett his name, and Barrett told him. According to Barrett, defendant said to him: "I want to tell you my story, I want to tell you what happened." Barrett told defendant that he did not want to hear his story; Barrett wanted to go home. Barrett asked defendant why he had not given his story earlier, and defendant responded that he did not like Caputo's attitude. Barrett notified the supervisor that defendant was now ready to give a statement. They sent back another detective to take the statement, but defendant would not give him a statement, as he would speak only to Barrett.
At that point, Barrett prepared to take defendant's statement. Defendant's mother was summoned back to the police station. Through the interpreter, defendant's mother was advised of the charges against her son and told that he wished to speak to Barrett. She agreed to allow her son to give a statement, and defendant signed a waiver and gave his statement to Barrett at 11:58 p.m. According to defendant, he did not know that Gamboa had a gun. Gamboa took the gun from a black bag, and when Shum turned to put the cup on top of the safe, Gamboa shot him. The man was trying to say something, but Gamboa shot him again. Gamboa took the jewelry, and defendant did not know where it was. According to Shum's wife, $120,000 worth of jewelry was taken. Defendant explained in his statement that he did not give his statement to Caputo because he did not like his attitude.
Maestre, a correction's officer at the Hudson County Youth House testified that he oversaw a dormitory in which defendant and Gamboa were housed. In October 1991, he saw defendant when he returned from court. Defendant looked distraught, so he asked him if everything was all right. Defendant said he got remanded back to the youth house until his next court date. Defendant said that he could not "do the time," and offered to give the officer $2500 up front if he would tell the prosecutor's office that he had overheard Gamboa tell another inmate at the youth house that Gamboa had done the shooting. Defendant would give the officer an additional $2500 and some jewelry when he was released. Defendant explained that he had the $5000 because he and Gamboa sold some of the jewelry. The next day, defendant said that the offer still stood. At trial, defendant claimed that he had never spoken to the officer at the youth house and had never offered him money and jewelry.
Defendant testified that he was sixteen years old on September 6, 1991. It was by accident that he ran into Gamboa on that day, a block away from the high school. Defendant told Gamboa that he was on his way to the jewelry store to get a ring for his girlfriend for their second anniversary of dating. Gamboa asked if he could go with defendant. The two walked to the jewelry store and there was no previous Discussion about robbing this store. Defendant claimed that he had never been to that store before and did not know the owner.
Defendant claimed that he was not carrying anything, but that Gamboa was carrying a black bag. Defendant asked Shum if he could see some rings, and the owner showed him a panel of rings. The owner moved toward the safe to get more samples, when defendant saw Gamboa remove a gun from the bag and fire two shots at the owner. Gamboa put the gold in his bag, although they left some jewelry behind. Defendant pushed the button on Shum's waist, which caused the door to click, at which time Gamboa opened the door, walked out, and held the door open for defendant. They then ran out of the store. Two blocks from the store, Gamboa "passed" the gun to defendant, and defendant threw the gun into the bushes. Defendant maintained that he did not sell the jewelry or receive anything as a result of the robbery. Gamboa left with the jewelry, and defendant did not see him again until they were at the youth house.
Defendant contends that the failure of defense counsel or the court below to advise him of his constitutional right to testify on his own behalf at the juvenile waiver hearing requires that the waiver ruling be vacated and a new hearing held. He asserts that he was deprived of the chance to address the juvenile court as to why he should not be tried as an adult. He complains that defense counsel called only one witness at the waiver hearing, a regional coordinator employed by the Department of Corrections. He argues that because the record is silent on the issue, at the very least, the matter should be remanded for a hearing to establish whether he was ever advised of his right to testify at the waiver hearing.
In a homicide proceeding against a juvenile, the waiver hearing is a critical stage. State v. Ferguson, 255 N.J. Super. 530, 535 (App. Div. 1992), certif. denied, 138 N.J. 265 (1994); State v. R.G.D., 108 N.J. 1, 4 (1987). This is so because once waiver occurs, the juvenile "loses all the protective and rehabilitative possibilities available to the Family Part." Id. at 5.
N.J.S.A. 2A:4A-26 creates a strong presumption that the Family Part shall transfer jurisdiction of a juvenile aged fourteen or over to an adult court if it finds probable cause to believe that the juvenile has committed a serious offense enumerated in the statute. State v. Jack, 144 N.J. 240, 246 (1996); Ferguson, supra, 255 N.J. Super. at 535-36. The accused has the burden of showing that the probability of rehabilitation substantially outweighs the reasons for waiver. N.J.S.A. 2A:4A-26. The decision to waive jurisdiction and refer a juvenile complaint to the Law Division is discretionary and will not be disturbed unless it is shown that the exercise of discretion was abused. State v. Matarama, 306 N.J. Super. 6, 16 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998).
Our Legislature has accorded juveniles all rights given to adults charged with a crime. Ferguson, supra, 255 N.J. Super. at 537. N.J.S.A. 2A:4A-40 provides:
All defenses available to an adult charged with a crime, offense or violation shall be available to a juvenile charged with committing an act of delinquency.
All rights guaranteed to criminal defendants by the Constitution of the United States and the Constitution of this State, except the right to indictment, the right to trial by jury and the right to bail, shall be applicable to cases arising under this act.
Both federal and New Jersey law recognize that the accused in a criminal trial has the constitutional right to testify on his or her own behalf. The United States Supreme Court found that this right is guaranteed by the Fifth Amendment privilege against self-incrimination, the Sixth Amendment rights to compulsory process and to conduct one's own defense, and the Fourteenth Amendment right to due process. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2709-10, 97 L.Ed. 2d 37, 46-47 (1987). The New Jersey Supreme Court has stated that a defendant's right to testify on his or her own behalf in a criminal trial is guaranteed by our State Constitution, N.J. Const. art. I, ¶¶ 1 and 10, and by statute, N.J.S.A. 2A:81-8. State v. Savage, 120 N.J. 594, 627-28 (1990).
The right to testify at one's trial is a fundamental right which can be waived "only by an `intentional relinquishment or abandonment.'" Savage, supra, 120 N.J. at 628 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). However, the "waiver need not be on the record to withstand appellate scrutiny." State v. Buonadonna, 122 N.J. 22, 36 (1991).
There is a constitutional tension inherent in requiring a trial court to advise a defendant of the right to testify or to inquire whether the defendant has waived that right. Savage, supra, 120 N.J. at 629-30. Discussion of the issue with the accused "might `inappropriately involve the trial court in the unique attorney-client relationship, raising Sixth Amendment as well as Fifth Amendment concerns.'" Id. at 629 (quoting State v. Bogus, 223 N.J. Super. 409, 424 (App. Div.), certif. denied, 111 N.J. 567 (1988)). The decision of whether to testify belongs ultimately to the defendant, and it "is an important strategical choice, made by defendant in consultation with counsel." Id. at 631. Therefore, "when a defendant is represented by counsel, the trial court is not required to inform defendant of his right to testify or explain the consequences of that choice." Id. at 630. The Savage Court did, however, add:
Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it. To ensure that counsel meets that obligation, it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant, particularly a capital defendant, of his or her right to testify. This will best ensure that defendant's constitutional rights are fully protected. Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel.
In Ferguson, supra, the fourteen-year-old defendant was convicted of murder at a trial held after a transfer hearing where the Family Court Judge waived jurisdiction and transferred the case to the Law Division for prosecution as an adult. 255 N.J. Super. at 531. We concluded there were two deficiencies in the waiver hearing: (1) defense counsel did not tell the defendant or his mother that he had a right to testify at the hearing; and (2) defense counsel seemed to put the case in the lap of a retained psychiatrist and stood aside. Id. at 536. We noted that the Savage Court had held that defense counsel, not the Judge, has the responsibility to advise the juvenile of his right to testify, and that the best practice is for the Judge to inquire of counsel on the issue. Id. at 539. Applying those principles in Ferguson, we rejected the State's claim of harmless error and reversed. Ibid.
We find Ferguson distinguishable because there the defendant had sought reconsideration of the decision to transfer and at a hearing on that request, defense counsel testified and admitted that he did not inform the defendant or his mother of the defendant's right to testify at the transfer hearing. Id. at 538. Here, the record does not demonstrate that defense counsel admitted that he failed to inform defendant of his right to testify. We reject defendant's assertion that it must be presumed that counsel failed to inform him of this right because the waiver of such a paramount constitutional right is routinely placed on the record. If defendant had filed a motion for reconsideration of the waiver of jurisdiction, there would have been a hearing as to whether defense counsel informed defendant of his right to testify. We cannot determine from the present record whether defendant was so advised and whether the waiver hearing was flawed.
Under Savage, it is the responsibility of defense counsel, not the trial court, to advise a defendant on whether or not to testify and to explain the consequences of waiving that right. Although the Court suggested that it may be the better practice for the court to inquire of defense counsel whether the defendant was advised of that right, it is not mandatory. Thus, the fact that the Judge did not make such an inquiry of defense counsel on the record is not grounds for reversal.
Moreover, our Supreme Court in State v. Jack, 144 N.J. 240 (1996), recognized that not every claim of ineffective assistance of counsel at a juvenile waiver hearing requires a new hearing. Id. at 254. To secure a new hearing, a juvenile must make a prima facie showing that "there was evidence of a genuine potential for rehabilitation that counsel did not present to the juvenile court." Id. at 255. If such a showing is made, the appellate court may order a remand to the juvenile court for a hearing: (1) to assess the attorney's reasons for not presenting to the waiver court the evidence of the potential for rehabilitation and to determine whether that failure was due to the ineffectiveness of counsel; and (2) to determine whether the result of the waiver proceeding would have been different if there had been a showing of that potential by effective counsel. Id. 245, 255. If both tests are met, there should be a new waiver proceeding. Ibid. However, if the remand court ...