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State v. Torres

June 16, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OBED TORRES, A/K/A OVED TORRES, OVED FLORES, "HEATHCLIFF", DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This case presents an issue of first impression, whether an experienced police officer who specializes in street gang investigations should be permitted to give expert testimony on "gang" hierarchy, organization, and discipline.

Obed Torres was a leading member of a Latino gang known as "MS-13" and his gang nickname was "Heathcliff." Torres and another MS-13 member nicknamed "Little Vato" were two of the gang's "bosses." On the night of October 25, 1997, Torres attended a MS-13 meeting in Jersey City. Just before the meeting, Walter Gomez, nicknamed "Camello," and Alberto Arroyo, nicknamed "Urraca," had an altercation in a restaurant. Camello previously had been a leader of the gang, but had fallen from power. When Torres arrived at the meeting, he was informed of the altercation. At first Camello refused to leave, but eventually left claiming he was going home to get his machete. Urraca than asked for and received a knife from Torres and told him that Camello would have to die.

After the meeting, Torres met with several other people at a nearby restaurant. Subsequently, Torres and others arranged to meet Camello at Lincoln Park to drink and "party." At one point Urraca approached Torres and said he intended to kill Camello. Torres did not respond. One of the gang members known as "Sleepy" attacked Camello with a machete and Urraca joined in and stabbed Camello with a knife several times in the lower back. Sleepy and Urraca than approached Torres and told him "it was done." Torres instructed the gang members to leave the park.

Torres and co-defendants, Sleepy and Urraca, were indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts two and three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).

At trial, the State presented the testimony of former MS-13 member Luis Galdamez, who testified that a "heat-up" order had been issued against Camello, meaning that any member of the gang could harm Camello and not be subject to reprisal from MS-13 leadership. Galdamez also testified that Torres was one of the MS-13 leaders that night, but did not testify that Torres was responsible for Camello's heat-up order. The State then indicated it intended to offer Investigator Timoteo Vazquez as an expert witness. Prior to receiving the testimony, the trial court conducted a hearing to determine whether the State would be permitted to present Vazquez as an expert witness on Hispanic street gangs. The trial court determined that the State could offer Vazquez as an expert because his specialized training and experience would assist the jurors. The court, however, limited his testimony to the general operation and hierarchy of Hispanic street gangs and specifically with regard to MS-13 gangs. The jury found Torres guilty of all charges, and the court sentenced him to thirty years imprisonment with thirty years of parole ineligibility on count one and, after merging counts two and three into count four, imposed a concurrent four-year term on count four.

In an unpublished opinion, the Appellate Division affirmed, rejecting Torres' contentions of error in the charge on accomplice liability and in the ruling to permit Vazquez to testify as an expert on gang behavior. We granted Torres' petition for certification.

HELD: The trial court's instruction on accomplice liability was appropriate, and if properly qualified, an expert may give gang-related testimony. The trial court did not abuse its discretion in finding Vazquez was qualified as an expert and that his testimony would be helpful for the jury to understand the issues in the case.

1. Because Torres failed to object to the instruction on accomplice liability at trial and raised it for the first time on appeal, we consider this issue under the plain error rule. R. 2:10-2. Our rules provide that a defendant waives the right to contest an instruction on appeal if he does not object to the instruction. R. 1:7-2. We may reverse on the basis of unchallenged error if we find error that was "clearly capable of producing an unjust result." R. 2:10-2. The trial court provided the jury with a detailed instruction on accomplice liability that essentially mirrored the Model Jury Charge. For a defendant to be guilty as an accomplice, he or she must (a) possess the culpability required for the substantive crime, and (b) actually foresee and intend the result of his or her act. The trial court sufficiently enunciated those elements to the jury. Accordingly, we find no error in the charge on accomplice liability that was capable of producing an unjust result. (Pp. 8-13)

2. The admission or exclusion of evidence is within the discretion of the trial court. Prior to the admission of expert testimony, the trial court should conduct a hearing under New Jersey Rule of Evidence 104. The party offering the evidence has the burden of proof to establish its admissibility. While the trial court is in a better position to shape the record and make credibility determinations, the appellate court need not be as deferential to the trial court's ruling on the admissibility of expert scientific evidence as it should be with the admissibility of other forms of evidence. New Jersey Rule of Evidence 702 sets forth three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. (Pp. 13-15)

3. Although we have no reported decisions in New Jersey that addresses the specific question of whether expert testimony explaining the operations of gangs should be admissible, many out-of-state cases have considered the issue and have admitted the evidence. Those jurisdictions have concluded that interviews of former gang members are a permissible factual source for the formation of expert testimony and opinion, even though some of the information may be suspect. A number of federal court decisions also favor the admissibility of gang related expert testimony. Based on the substantial number of judicial decisions permitting expert testimony related to gang activity, we are convinced that the persuasive judicial decision portion of the test for reliability of expert testimony has been met. (Pp. 15-21)

4. The trial court's admission of Investigator Vazquez's testimony was proper. We conclude that the trial court did not abuse its discretion in finding Vazquez was qualified as an expert and that his testimony would be helpful for the jury to understand the issues in the case. Vazquez's testimony covered the street gang hierarchy, organization, and discipline, topics that were beyond the understanding of persons of average knowledge, education, and experience. Our review of the relevant case law from other jurisdictions satisfies us that the organization and structure of Latino street gangs, and the MS-13 gang in particular, are beyond the ken of the average juror. That testimony was properly admitted to assist the jury in understanding the evidence and determining whether the State proved defendant was an accomplice in causing the death of a fellow gang member. Although portions of the expert's testimony may have been based on interviews of other gang members, we find that source, along with other sources used by Vazquez, was sufficiently reliable to overcome defendant's hearsay complaint. Other jurisdictions have generally acknowledged that the nature of obtaining information and experience in the present and related fields may necessarily depend upon hearsay evidence. We conclude that the testimony of Vazquez did not compromise defendant's confrontation rights and was properly admitted. We caution, however, that trial courts must delicately balance the permissible uses of expert testimony and a defendant's fundamental right to cross-examine his accusers. (Pp. 21-33)

5. Even though the trial court may find a witness qualified to give an expert opinion, the court should carefully weigh whether the prejudicial effect of that evidence outweighs its probative value. We further note that when the expert witness is an investigating officer, the expert opinion may present significant danger of undue prejudice because the qualification of the officer as an expert may lend credibility to the officer's fact testimony regarding the investigation. That is a delicate situation that requires the trial court to carefully weigh the testimony and determine whether it may be unduly prejudicial. (Pp. 33-34)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace

Argued January 18, 2005

This case presents an issue of first impression, whether an experienced police officer who specializes in street gang investigations should be permitted to give expert testimony on "gang" hierarchy, organization, and discipline. The trial court found the expert was qualified to testify and admitted the testimony. On appeal before the Appellate Division, defendant challenged the jury charge on accomplice liability and the use of expert testimony related to gangs. In an unpublished opinion, the Appellate Division affirmed. We granted defendant's petition for certification and now affirm. We conclude that the instruction on accomplice liability was appropriate, and if properly qualified, an expert may give gang-related testimony.

I.

The facts developed at trial revealed that defendant Obed Torres was a leading member of a Latino gang known as "MS-13." Defendant's gang nickname was "Heathcliff." Defendant and another MS-13 member nicknamed "Little Vato" were two of the gang's "bosses." On the night of October 25, 1997, defendant attended a MS-13 meeting in Jersey City.

Just before the meeting, Walter Gomez, nicknamed "Camello," and Alberto Arroyo, nicknamed "Urraca," had an altercation in a restaurant. The argument, which began when Camello ridiculed Urraca's tattoo, escalated to Urraca pushing Camello and Camello throwing a bottle at Urraca. Camello previously had been a leader of the gang, but had fallen from power.

When defendant arrived at the gang meeting, he was informed of the altercation between Camello and Urraca. Both men were present at the meeting and continued to display hostility towards each other. Camello was asked to leave, but he protested. Eventually, Camello left claiming he was going home to get his machete. Urraca then asked for and received a knife from defendant. Before the meeting concluded, Urraca told defendant that Camello would have to die.

After the meeting, defendant met with several other people at a nearby restaurant. The group included Urraca, several women, and three other gang members, nicknamed "Sleepy," "Smokey," and "Ricardo." They decided to look for Camello and invite him to Lincoln Park to drink some beer and "party." After they located him in a nearby bar, Camello agreed to join them so long as they had some marijuana to smoke. They did not, so Camello and one of the women left the group to buy some marijuana.

The two were unable to find marijuana, so Camello went to the park. The woman who left with Camello returned to the others and said that Camello was waiting for them at the entrance of the park. They then met Camello and entered the park to drink some beer. Sometime later, all of the women departed, leaving defendant, Camello, Ricardo, Sleepy, Smokey, and Urraca in the park.

As the gang members continued to walk around, they reached a pedestrian bridge that crossed over Routes 1 and 9. Camello sat on the bridge and dangled his legs over the side before defendant persuaded him to get off the bridge. Defendant then walked off the main path to relieve himself. Urraca approached defendant and said he intended to kill Camello. Defendant did not respond, but engaged Smokey in conversation.

While Urraca, Sleepy, and Camello were standing together, Sleepy suddenly attacked Camello with a machete, striking him about the head and neck. Camello fell to the ground as Sleepy continued to slash at him. Urraca joined in and stabbed Camello with a knife several times in the lower back. Sleepy and Urraca then approached defendant and told him "it was done." Defendant instructed the gang members to leave the park. As defendant and Ricardo jumped over a fence to cross the highway, they encountered two Hudson County Sheriff's officers who had been alerted about a group of people in the park. Sleepy and Urraca continued to run away, but defendant and Ricardo stopped. Defendant told the officers they had been drinking in the park and gave them his name and address. The officers called headquarters to ascertain if there were any outstanding warrants on the two men. Upon learning that there were none, they released both individuals.

The next day Camello's body was discovered in the park. Because the police had defendant's name and address from the encounter in the park, they sought to question him. That night, police went to defendant's home and defendant signed a consent to search form. The police seized several items identifying defendant with the MS-13 gang. Defendant agreed to waive his Miranda*fn1 rights and thereafter gave a statement outlining his version of the killing of Camello that implicated other MS-13 gang members but not himself. Defendant was placed under arrest and subsequently, Sleepy and Urraca were arrested.

Defendant and co-defendants, Sleepy and Urraca, were indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts two and three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).

At trial, the State presented the testimony of former MS-13 member Luis Galdamez. Galdamez described the gang meeting on the night of the murder and explained that a "heat-up" order was issued against Camello. That meant that any member of the gang could harm Camello and not be subject to reprisal from MS-13 leadership. Galdamez also testified that defendant was one of two MS-13 leaders that night. He did not testify that defendant was responsible for Camello's heat-up order.

The State then indicated it intended to offer Investigator Timoteo Vazquez as an expert witness. Prior to receiving his testimony, the trial court conducted a hearing to determine whether the State would be permitted to present Vazquez as an expert witness on Hispanic street gangs. Vazquez explained that he worked for the New Jersey Division of Criminal Justice, Attorney General's Office, and was part of the Organized Crime Bureau, Nontraditional Organized Crime Unit. He had been in law enforcement for twenty years and had worked four years in the State Police Street Gang Unit as an investigator, instructor, and lecturer on gang activities. During that period, he interviewed approximately ten to fifteen members of the MS-13 gang. The prosecutor sought to have Vazquez testify to the operation and hierarchy of Hispanic street gangs in general, and the MS-13 gang in particular. Defense counsel objected, urging that Vazquez's testimony would not be expert testimony but rather it would be fact testimony based on hearsay.

The trial court determined that the State could offer Vazquez as an expert because his specialized training and experience would assist the jurors. The court, however, limited his testimony to the general operation and hierarchy of Hispanic street gangs and specifically with regard to MS-13 gangs. The trial court then informed the jury that Vazquez would give expert testimony, and that ...


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