Before Judges Havey, A. A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 22, 2000
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Defendant, Carlos Alberto Cevallos-Bermeo, challenges his conviction for several crimes arguing that the Vienna Convention of Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101 (Convention), a treaty among the United States, his native Ecuador and many other nations, has been violated by the prosecutor's failure to notify the Ecuadorean Consulate of his arrest, indictment and prosecution. We hold that whether the Convention confers an individual right on a foreign national or a national right on the signatory nations, absent a showing of prejudice to defendant, a criminal conviction will not be overturned because the terms of the Convention have not been observed.
This was a capital case. Following a jury trial, defendant was convicted of knowing and purposeful murder, N.J.S.A. 2C:11-3; first degree kidnapping, N.J.S.A. 2C:13-1b; first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and related charges. In the sentencing phase of the trial, the jury was unable to reach a unanimous verdict whether to impose the death penalty. The judge merged the related convictions and imposed the following sentence: on the murder conviction, a life term with a thirty-year period of parole ineligibility; on the kidnaping charge, a consecutive thirty-year term with a fifteen-year period of parole ineligibility; and on the aggravated assault conviction, a consecutive twenty-year term with a ten-year period of parole ineligibility. All of these sentences were to run consecutive to the terms imposed on another murder conviction. We affirm the conviction; however, we modify the sentence so that all of the terms imposed for this criminal episode run concurrent.
Defendant's convictions arose out of the kidnaping, rape and murder of A.T., in the early morning hours of September 13, 1994. The evidence presented by the State during the penalty phase can be briefly summarized as follows. On September 12, 1994, A.T. had a fight with her live-in boyfriend because of her excessive drinking. She took $350 cash from him and left with her six-year old daughter in a taxicab. She left the child at the home of a friend who was a frequent babysitter. A.T. then went to JD's Bar. Already intoxicated upon her arrival, A.T. met Alberto Ojeda at the bar. The two continued to drink and then went to the Mambo King Bar. Eventually, the Mambo King's owner called a taxicab for A.T. However, the driver refused to take her due to a previously unpaid fare. As a consequence, A.T. started to walk home. Ojeda went outside with her, but then went back inside the Mambo King.
Sometime later, Paula Martinez and Jose Reyes saw A.T. running by them on 58th Street and Palisades Avenue screaming "God help me." A.T. asked for directions and then walked towards Bergenline Avenue. Five minutes later, defendant came by and asked Reyes if he had seen a "chick" go by. Reyes said no. Defendant continued walking in the direction of Bergenline Avenue. Shortly thereafter, Martinez saw defendant dragging A.T. from the street into Modell's parking lot on 58th Street.
At around 6:00 a.m. on September 13, 1994, A.T.'s lifeless body was found lying on her back, between parked cars in Modell's parking lot. She had numerous lacerations and was bleeding from the neck. Her pants were by her feet, and her shirt pulled up around her neck. She was not wearing any undergarments. Her sneakers were under a vehicle parked next to her. Blood was spattered on the vehicles next to the body. There was a hand impression on her right thigh. Four latent hand prints were taken from the windows of the adjoining vehicles. The medical examiner concluded that A.T. died from a combination of multiple sharp and blunt-force injuries and asphyxia by compression of the neck. Her blood alcohol level was .336.
The day after the murder, defendant purchased an airline ticket to his native Ecuador. He left the following day. Four months later, he returned to the United States. In March 1995, defendant was arrested for another murder. As a result, his photograph was published. Martinez identified defendant from the photograph as the man who had dragged A.T. into Modell's parking lot. Defendant was fingerprinted. His fingerprints matched those taken from one of the cars parked next to where A.T.'s body was found.
Defendant did not testify. In his defense, he presented testimony from his wife regarding his return to Ecuador. He also presented testimony of other witnesses regarding the lighting conditions in Modell's parking lot and the distance to Martinez's apartment.
On appeal, defendant contends that the State's failure to comply with the Convention mandates the reversal of the conviction or, in the alternative, a new trial. We disagree. After the trial, defendant filed a letter claiming that his rights under the Convention had been violated. The United States and Ecuador ...