On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. No. 03-04-1426.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2007
Before Judges Kestin, Weissbard and Graves.
Defendant, Miriam Miraballes, appeals from her conviction and sentence, after a jury trial, on all counts of an indictment charging her as follows: conspiracy to commit burglary and theft, N.J.S.A. 2C:5-2, 18-2 and 20-2b(1)(e) (count one); burglary, N.J.S.A. 2C:18-2 (counts two, four and six); and, theft, N.J.S.A. 2C:20-2b(1)(e) (counts three, five and seven). Ramon Gonzalez was charged as a co-defendant on all the counts involving defendant.*fn1
At sentencing the judge merged count one with counts two through seven, imposed concurrent five-year terms with two and one-half years of parole ineligibility on counts two and four, a concurrent five-year term on count seven, concurrent ten-year terms with five years parole ineligibility on counts three and five, and a consecutive five-year term with a two and one-half year parole disqualifier on count six. Thus, the aggregate sentence was fifteen years with a seven and one-half year period of parole ineligibility.
On appeal defendant raises the following arguments:
POINT I: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S ERRONEOUS RULING PERMITTING THE PROSECUTOR TO PRESENT HYPOTHETICAL QUESTION TO HIS EXPERT WITNESS, DETECTIVE QUINONES, DURING REDIRECT EXAMINATION, WHICH SPECIFICALLY REFERENCED THE DEFENDANT BY NAME. (Partially Raised Below)
POINT II: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S ELICITATION OF TESTIMONY FROM HIS EXPERT WITNESS OPINING THAT A HIGH PRIESTESS, THE VERY POSITION THE STATE MAINTAINED WAS HELD BY THE DEFENDANT, WOULD NOT TESTIFY TRUTHFULLY IN COURT UNDER OATH. (Not Raised Below)
POINT III: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S ELICITATION OF TESTIMONY FROM THE POLICE THAT THE DEFENDANT INVOKED HER RIGHT TO REMAIN SILENT FOLLOWING HER ARREST. (Partially Raised Below)
POINT IV: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE MANNER IN WHICH IT SHOULD ASSESS THE CREDIBILITY OF RAMON GONZALEZ. (Not Raised Below)
POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
POINT VI: ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
After a detailed analysis of the record, we conclude that the issues presented in Points I and II require a new trial. We reject defendant's arguments in Points III and IV as without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). However, defendant is free to seek a more complete instruction on credibility at the retrial. Because of our disposition, we have no need to address defendant's sentencing arguments, although it is clear that a resentencing would have been required in any event as a result of State v. Natale, 184 N.J. 458 (2005).
As the State agrees at the outset, this was a "hard fought trial." The gist of the State's case was that defendant conspired with co-defendant Gonzalez, who pled guilty and testified for the prosecution, to steal human remains from several cemeteries in Newark, for use in rituals associated with the non-traditional religion known as Palo Mayombe (Palo), of which defendant was alleged to have been a "high priestess."
The State's proofs had several elements. First, it established the actual thefts of human remains. Thus, an employee of the Mount Pleasant Cemetery testified to a burglary of the Jenkins mausoleum on December 18, 2001, and removal of human remains, as well as an entry to the Schmidt mausoleum several years earlier. Similarly, there was evidence of a break-in of the Rovi mausoleum at the Holy Sepulchre Cemetery on January 23, 2002, and removal of human remains.
The next aspect of the State's case came from co-defendant Gonzalez, who testified in exchange for a promise of favorable treatment on charges pending in New Jersey, including this case, as well as the promise of assistance on charges pending against him in Florida. Gonzalez testified that he originally met defendant at a Botanica operated by her son at 250 Broadway in Newark. The Botanica was a store specializing in "spiritual" items for various non-traditional religions, including Palo and Santeria. Gonzalez attended ceremonies at defendant's house at which "sacrifices" would take place involving cauldrons containing human remains. At some point, Gonzalez left New Jersey for several years and went to Florida, returning here in November 2001, after jumping bail there. He resumed his relationship with defendant, who convinced him that his life would change for the better if he were initiated into the Palo religion.
Gonzalez claimed that defendant recruited him to steal human remains, which he effectuated, along with two other men supplied by defendant, on December 18, 2001, at Mount Pleasant Cemetery. After the theft, Gonzalez met defendant and transferred the bags containing the remains into her car. He received $100 from defendant. In January 2002, defendant again requested that Gonzalez enter a cemetery and steal human remains, promising to baptize him into the Palo religion if he did so. Defendant gave Gonzalez the name of the cemetery and the specific remains to be stolen. On January 23, 2002, Gonzalez accomplished his task at the Holy Sepulchre Cemetery.
He had been driven there by his girlfriend, Ruth Santiago, who did not know of his criminal intent. The remains were turned over to defendant that night. Santiago's testimony confirmed these events. Although Gonzalez was promised $500, he never received it.
Apparently unknown to Gonzalez, Santiago was an FBI informant and told her contact agent about the cemetery theft. The agent, in turn, contacted the Newark Police Department who interviewed Santiago and then Gonzalez. When confronted, Gonzalez admitted his involvement, gave a statement, and agreed to cooperate.
Based on information provided by Gonzalez, a search warrant was obtained for a Botanica owned by defendant at 22 Bloomfield Avenue in Newark. The warrant was executed on August 13, 2002, and the results constituted the third strand of the State's case. Numerous items were seized from several rooms in the basement, including three cauldrons. The items were examined by a forensic anthropologist, Regina Hart, of the regional Medical Examiner's Office. Hart provided the following detail based on her analysis:
Cauldron one: A skull, which was missing the skull cap, an upper denture, a mandible and right humerus, which were the partial remains of Mr. Jenkinson.
Cauldron two: A skull, which was missing a skull cap was found. Ms. Hart concluded that it belonged to a white or Hispanic female who had died between the ages of thirty and fifty years of age. Partial remains of Mr. Jenkinson were also found in this cauldron.
Cauldron three: Two human skulls with the calvarium missing, a human calvarium skull cap and an unspecified long human bone. Some of these remains were also attributed to Mr. Jenkinson.
A purple cloth bag found next to cauldron one: numerous left and right leg and arm bones, several vertebra, several foot bones, rib fragments, then mummified fingers, which also constituted the partial remains of Mr. Jenkinson.
A white satin pillowcase: contained a mandible with no teeth and dentures, several vertebra and ribs. Ms. Hart concluded these remains belonged to Mr. Schmidt.
A paper bag next to cauldron one: Two human skull caps, several vertebra and proximal fragments from a right tibia, as well as a skull cap belonging to an unknown juvenile. Ms. Hart concluded these remains belonged to Mr. Jenkinson and Mr. Schmidt.
In total, Ms. Hart identified five different individuals from the confiscated remains.
The remains of Richard Jenkinson were found in cauldron one, two and three, a paper bag and the purple bag. The remains of Jacob Schmidt were also found at the scene.
In total, parts of at least five individuals were identified in the items taken from the basement.
The final thread of the prosecutor's case consisted of expert testimony, which we now discuss at length.
Defendant's first argument challenges the admissibility of the hypothetical question posed to Detective Marco Quinones of the New York City Police Department, the State's expert in non- traditional religions. In addition, defendant challenges the manner in which her name was ultimately presented to the jury during the re-direct testimony of Detective Quinones.
Detective Quinones was qualified by the judge "as an expert in nontraditional religions such as Santeria and Palo Mayombe." Defendant does not attack Quinones's qualifications in this regard. Asked to explain Santeria, Quinones testified:
Santeria is a religion that came into this country with the slave trade. It originated in Nigeria. Many of the tribes practiced a nature oriented religion. When they came into this country as slaves, they came into Cuba.
The plantation owners did not allow the slaves to practice their native religions and what the slaves did was disguise their religion, which was nature based, with the Roman Catholic Saints. In other words, they called the names of their demi Gods after the name of the Roman Catholic Saints; for example, Mary, Jesus, Paul, and so forth.
So when the plantation owners observed them jumping and praising the names of Roman Catholic Saints, in reality they pulled a fast one, and that way the plantation owners would leave them alone.
But the religion spread throughout the Caribbean into the United States and also into South America, and it has taken certain elements of Roman Catholicism even though the two religions are very, very separate and very unique to it.
Santeria has right now over a hundred million practitioners worldwide, five million in the United States, and over 300,000 in New York City.
With respect to Palo Mayombe, he testified:
Palo Mayombe is a religion that came from Zaire which is -- well, the Congo, which is now Zaire. It is a nature oriented religion that worships three types of entities. They worship the dead, they worship ancestors, and they worship spirits of nature. It is considered by many practitioners of Santeria as the dark side because Palo basically works with spirits that are evil in their nature.
And Paleros are very secretive. We cannot estimate the numbers, how many there are in the United States or worldwide because of the secretive nature of the religion itself.
Many Santeros will not incorporate any practices of Palo within their Santeria practices.
Shown a photograph of one of the cauldrons found at 22 Bloomfield Avenue, he identified it as an "Nganga," which "is the central focus point of the practice of Palo Mayombe." The cauldron, or pot, had traditional accoutrements of a Nganga, "various sticks containing various metal items and a chain which is wrapped around the pot." He went on to explain as follows:
When you're in Palo, especially when you are a high priest of Palo, when you get initiated as a high priest, you are given a pot which is called a Nganga. That pot has to be filled with various items that I shall describe.
It would have, for example, various dirts coming from different cemeteries; dirt from a cross road, and the reason, for example, that you use dirt from a cross road, because a cross road, if you can visually picture like any cross road, leads in many different directions.
In respect to Palo or some of the nontraditional religions, that cross road represents nature as we know it, earth; and the other aspect is the super natural, the world of spirits. So taking dirt from there is symbolically uniquely those two elements.
Also the sticks, the sticks is the core of Palo Mayombe.
So, for example, I'm holding up this bag containing various sticks, and it's labeled sticks from cauldron one. This is one of the items that is placed inside the cauldron. This is where particularly the religion gets the name Palo. They believe that certain trees in the Congo had various Palo spirits that would give them power.
Also, they would add into the cauldron various animals, either dead chickens, dead roosters. For example, this bag, containing what is visually a dead chicken or rooster, all of these items will be placed inside, including human bones, and also a skull, if they can get their hands on a skull.
The items in the cauldron are not eaten, are not to be distributed to any other members. It is very sacred. You must feed this cauldron periodically blood of dead animals, and in some cases, from research that I have done, some people will feed it human blood from a human sacrifice.
The reason for that, because the spirit that you worship is inside that cauldron, that spirit can be a spirit of an ancestor of a dead person, of a criminal that has died a violent death, of a suicide person, or it can be a spirit of nature.
So you must keep that spirit very, very happy by feeding him or her the sacrifices, depending on what you want to give it, whether it's animal or human.
So that basically what you have here are the items that would be added to this cauldron. Every Palero will add their own ingredients. It is a matter of choice.
Directing Quinones's testimony to various human remains found at defendant's Botanica, the prosecutor asked the following hypothetical question and received the response indicated:
Q: Detective Quinones, I want you to assume that these all come from an individual who was buried in the 1930s in the Newark Cemetery or Mt. Pleasant Cemetery.
Assume that he was buried in the 30s and then in December of the year 2001, an individual entered a mausoleum -- he was buried in a crypt above-ground -- destroyed the mausoleum, ...