July 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN C. SALAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 03-06-02075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2007
Before Judges Wefing and Yannotti.
Tried to a jury, defendant was convicted of two counts of murder, a crime of the first degree, N.J.S.A. 2C:11-3(a)(1) and (2); one count of attempted murder, a crime of the first degree, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and (2); one count of conspiracy, a crime of the first degree, N.J.S.A. 2C:5-2; one count of possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4(a); one count of unlawful possession of a weapon, a crime of the third degree, N.J.S.A. 2C:39-5(b); and one count of hindering apprehension, a crime of the third degree, N.J.S.A. 2C:29-3(b)(1). At sentencing, the trial court merged defendant's conviction for possession of a weapon for unlawful purpose and sentenced defendant to forty years in prison for one count of murder and a consecutive thirty years in prison for the second count of murder, both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The balance of defendant's sentences were ordered to be served concurrently with the first sentence for murder. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The State presented evidence that defendant and his companions took umbrage at the intrusion of others into what they deemed their territory in Camden for the sale of narcotics. Their solution was to "clear the block." This they did with a hail of bullets from at least five different weapons. When the shooting ended, Richard Williams was dead and Jabbar Lee died shortly thereafter. David Williams (no relation to Richard) had been shot in the back, but he survived. David testified, as did Joseph Quinones. Mr. Quinones had been with defendant and his companions as they planned what to do and saw them arm themselves with weapons supplied by defendant's uncle. We infer from various comments by counsel during the course of the trial, in the absence of the jury, that defendant's uncle was known as a narcotics trafficker.
One of the guns used was a semiautomatic rifle similar to an AK-47. Police who responded to the scene recovered more than seventy shell casings and projectiles. Investigator James Joyce of the New Jersey State Police testified as an expert in ballistics and firearm identification. According to Investigator Joyce, at least five separate guns were involved in the incident, and there may have been as many as eight.
Defendant was only seventeen years old at the time of the shootings. He was taken into custody several months later and, in the presence of his mother, supplied a statement about his involvement in this incident, which was played for the jury. According to that statement, the shootings were planned by Angel Mendoza, who recruited defendant and his brother, Jose Egron. Defendant in his statement said that Mendoza supplied the guns, not defendant's uncle. He said that Mendoza instructed him and his brother to shoot at the victims, with the expectation that they would run toward where Mendoza would be stationed and that Mendoza would then kill them. Defendant said in his statement that he went along with the plan because he was afraid of what Mendoza would do to him if he did not.
Defendant testified at his trial and recanted his statement. He said he only gave the statement because the police would not let his mother leave until he did so. His mother testified to the same effect. Defendant testified he had no involvement with the shootings although he could not recall where he was when they occurred.
Defendant raises two points on appeal.
DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE PROSECUTOR TOLD THE JURY DURING TRIAL AND SUMMATION THAT MR. SALAS HAD GROWN UP IN A VIOLENT AND STRANGE CULTURE, THEREBY INFLUENCING THE JURY'S PERCEPTION OF MR. SALAS AS A VIOLENT AND STRANGE MAN, RATHER THAN AS A 17-YEAR-OLD JUVENILE. U.S. Const., Amends. V, VI, XIV, N.J. Const. Art. I, Para. 10. (Not Raised Below)
THE TRIAL COURT ERRED, AND CONSEQUENTLY IMPOSED AN EXCESSIVE SENTENCE, IN REFUSING TO ORDER CONCURRENT SENTENCES FOR THE FIRST-DEGREE MURDER CONVICTIONS, AND IN IMPOSING GREATER THAN THE MINIMUM TERM UNDER THE NO EARLY RELEASE ACT.
A. The Trial Court Erred in Refusing to Order Concurrent Sentences for the Two First-Degree Murder Convictions
B. The Sentence Was Manifestly Excessive.
Defendant's first argument revolves around two comments by the prosecutor who tried this case, one in her opening statement and one in her closing. In her opening statement, the prosecutor laid out for the jury the facts she hoped to establish during the course of the trial. In the course of doing so, she made the following remarks:
The scene is going to tell you. You will see the shell casings that were recovered from that street. You will see the photographs of that scene, that street that had become a battlefield. These shootings, the murders of Richard Williams and Jabbar Lee and the attempted murder of David Williams, this case this trial is going to take you into a world that is different from your own and into a value system that is different from your own.
In her closing remarks, she discussed the testimony of Joseph Quinones in the following manner:
As Joseph Quinones told you, he wasn't in any real hurry to leave. He wanted to see that big gun get fired. He wanted to hang around because, as he told you, he didn't care. That's his value system. It is alien to each one of us, but that's his world, that's this world, and that's their world.
Defendant made no objection to either of these remarks at the time of trial but now argues that they served unfairly to direct the jury to perceive defendant as different than they and thus more apt to commit these criminal acts.
The prosecutor, as the representative of the State, bears a special responsibility in framing the arguments to be presented to the jury. State v. Spano, 64 N.J. 566, 569 (1974).
Prosecutors are, however, afforded considerable leeway in their remarks to the jury. State v. Goode, 278 N.J. Super. 85, 92 (App. Div. 1994).
We have consistently recognized trials do not occur in a vacuum and a courtroom is not a classroom. Chief Justice Wilentz has noted ". . . rhetorical excesses . . . invariably attend litigation. [Ibid. (citations omitted).]
Prosecutors may strike hard blows, but not foul ones. State v. Feaster, 156 N.J. 1, 59 (1998) (quoting Berger v. United States, 205 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)). However, the line between colorful language and rhetorical excess may, at times, be difficult to draw.
We have carefully reviewed this trial record and in our judgment the evidence presented against defendant can fairly be described as overwhelming. Although the prosecutor should not have attempted to create for the jury a view of the defendant as alien from themselves, we are unable to conclude that these brief remarks, to which no objection was made, had the capacity by themselves to poison the jury against defendant. State v. Thornton, 38 N.J. 380, 399 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963). Defendant received the fair trial to which he was entitled.
Defendant next challenges the sentence imposed by the trial court, and, specifically, its determination that defendant receive consecutive, as opposed to concurrent, sentences for the two murders. Consecutive sentences are not an abuse of discretion when separate crimes involve separate victims and separate acts of violence. State v. Carey, 168 N.J. 413, 423 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Generally, there should be no free crimes. Id. at 235 (Coleman, J., concurring).
Here, the trial court put a comprehensive statement on the record setting forth its reasons for determining that defendant must serve consecutive terms for the two murders. We find no abuse of the court's sentencing power.
Defendant's conviction and sentence are affirmed.
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