July 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE ORMENO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1938-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 15, 2007
Before Judges Lisa and Holston, Jr.
Defendant, Jose Ormeno, appeals the Law Division's August 11, 2004 judgment of conviction for second-degree conspiracy to commit robbery and fourth-degree unlawful possession of an imitation firearm. We affirm the conviction but remand for re-sentencing.
Defendant was charged on May 27, 2003 under Essex County Indictment No. 03-05-1938-I in count one with second-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; in count two with first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 and in count three with fourth-degree possession of an imitation firearm, contrary to N.J.S.A. 2C:39-4(e).
Defendant was tried before a jury from February 4, 2004 to February 13, 2004. The jury found defendant guilty of counts one and three but not guilty of count two. On August 11, 2004, the court sentenced defendant as a persistent offender under N.J.S.A. 2C:44-3(a) and imposed an extended seventeen-year term of imprisonment with an 85% parole disqualifier in accordance with N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), on count one and a concurrent term of imprisonment of one year on count three.
At about 8:00 a.m. on March 9, 2003, Newark police officer Luis Orsorio was on routine patrol in a marked vehicle in the vicinity of Mount Prospect and Delavan Streets. He observed two men running toward him, one of whom he recognized as co-defendant Rafael "Flocko" Fuentes, having grown up with him in Puerto Rico.
Two Hispanic men were in pursuit. They approached Orsorio's patrol car. One of the men identified himself as Darwin Polango and reported that he and his companion had just been robbed by the two men they were chasing. Polango, who was excited, perspiring and speaking rapidly, told Orsorio that one of the two robbers, later identified as defendant, pulled out a gun, shoved it in his stomach and stated in Spanish: "Give me your money or suffer the consequences." The same man reached into Polango's right rear pocket and took his wallet.
Orsorio notified dispatch of the robbery and provided a brief description of the suspects. Orsorio asked both victims to remain with him. Polango agreed and entered Orsorio's vehicle. The other victim declined and left the scene. While in the patrol car, Polango repeated to Orsorio how the robbery occurred and defendant's role in it.
At slightly after 8:00 a.m., Officers William Johnson and Altamaise Scott, in separate patrol cars, received a radio transmission of the robbery and a description of the suspects. They began searching for them. Johnson observed Fuentes running through the yards in the area of Clifton and Ballentine Streets. Johnson pursued Fuentes for about ten yards before apprehending and arresting him.
About ten minutes later, Scott, who had exited his vehicle, searched the backyards of various homes in the area with other officers. He observed defendant in a fetal position hiding under a bush in the rear fenced-in yard of one of the homes between a bush and the house. When Scott lifted defendant up, he observed what appeared to be a semi-automatic handgun embedded in the snow. After the officer picked it up, he realized it was a toy gun.
Officer Orsorio, who was at the scene of defendant's arrest, recognized defendant as one of the two men he observed running past his patrol car twenty minutes earlier.
Detective Anthony Iamello gave defendant Miranda*fn1 warnings at police headquarters, where he was brought after his arrest. Defendant signed a waiver of rights form at 11:20 a.m., which was witnessed by Detective Dominick D'Andrea. Defendant, thereafter, gave a typed, three page sworn statement, which he signed after reading it. The statement was acknowledged by Sergeant Martin.
In his statement, defendant stated he was driving to Parker Street to buy bread and eggs when he saw Fuentes, who motioned him over. Fuentes told him he was "dope sick," and the defendant replied he was "sick," as well. Indicating he only had three dollars, Fuentes asked defendant if he wanted "half a bag of dope." Defendant agreed, so defendant drove Fuentes to an area a short distance away where Fuentes entered a residence before returning with a bag, giving half of its contents to defendant.
After each of them consumed the drugs, Fuentes said, "Let's rob someone. . . . Let's get a wetback." Fuentes explained to defendant that they would simply "walk up to them and take their money." Defendant asked Fuentes what they would use to effectuate the robbery. They then stopped at a supermarket where Fuentes bought a plastic gun for $1.99. They drove about two blocks before seeing "two wetbacks." They both exited the car. Fuentes gave the toy gun to defendant and told him to point the gun at them while he got their money. Fuentes took one of the "guys" wallets before they both walked away. They saw a police car so they ran. Defendant did not know how much money was taken from the victim or what happened to the wallet.
Defendant testified at trial. Defendant disavowed his statement, claiming that he was not asked to give a statement and the only document he signed was a "report with my information." He claimed he did not tell the police that he wanted to rob a "wetback" or that he purchased a toy gun to use in the robbery. On the contrary, he told the police that there was no robbery. He admitted that on the morning of March 9, 2003, he gave Fuentes, who was "dope sick," a ride and the two shared a ten-dollar "bag of dope." He contended he was still high when the officer asked him about the alleged robbery. Defendant stated he and Fuentes pooled their money to buy the drugs because he had only $8.00 in his possession and Fuentes had $3.00.
Defendant denied ever using the word "wetback" in his statement. He was aware a "wetback" was someone who came from South America, because he was from Peru. If someone used that term to him, he would have been insulted. He denied ever seeing the waiver of rights form and the initials that existed on the form were not his handwriting. The signature, which appeared at the end, was not his signature.
Defendant testified that while they were driving, Fuentes recognized someone on the street and asked defendant to pull over. Fuentes called to "two guys walking[;] he approached them and started talking to them." Defendant waited in the car and could not hear their conversation, because he was three or four cars away. Three or four minutes later, defendant got out of the car, because Fuentes was "getting like excited, like an argument," and he wanted to see what the argument was about. He told Fuentes: "Let's take a walk so he would cool down."
Although defendant claimed he left the area with Fuentes to avoid an argument, they did not return to the car. Defendant's explanation was that he did not want any damage done to the car. Instead, they started walking down the street. Defendant looked back and saw the two men following them. He told Fuentes to walk faster and they passed a police officer coming in the opposite direction from which they were walking.
Defendant did not stop and ask the police officer for help, because he had an open warrant for his arrest for possession of narcotics, and he did not want to be arrested. Instead, he walked faster, "almost like kind of running but not running." He saw an open gate and walked into a rear yard where he hid under a bush. He identified the toy gun found at the time of his arrest but claimed it was not under him. It was lying under "the next bush" and was never in his possession.
Based on these divergent facts, the jury found defendant guilty of conspiracy to commit robbery and guilty of possession of an imitation firearm but not guilty of robbery.
Defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR, WHICH INFERENTIALLY INFORMED THE JURY THE DEFENDANT HAD BEEN IDENTIFIED BY THE VICTIM. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS BASED UPON CONDUCT MORE THAN TEN YEARS PRIOR TO TRIAL WERE ADMISSIBLE TO ATTACK CREDIBILITY. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RE-SENTENCING PURSUANT TO STATE V. PIERCE.
In defendant's pro se brief, defendant presents the following additional arguments:
DEFENDANT'S 6TH AND 14TH AMEND. CONST. RIGHTS WERE VIOLATED BY TAINTED GRAND JURY PROCEEDINGS AND HIS RIGHT TO CONFRONTATION CLAUSE.
DEFENDANT'S 5TH AND 14TH AMEND. DUE PROCESS CLAUSE WAS VIOLATED BY MIRANDA VIOLATION AT INITIAL ARREST AND [DETECTIVE'S] FAILURE TO GIVE MIRANDA WARNINGS.
DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE, WHICH VIOLATES HIS 6TH AMEND. CONST. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Defendant contends the trial court erred in denying defense counsel's motion for a mistrial. Prior to trial, a hearing was conducted to determine the admissibility, as excited utterances testimony, under N.J.R.E. 803(c)(2), of the statements made to Orsorio by Polango when Polango approached his car and the statement made by Polango twenty minutes later when he identified defendant. Polango could not be located to testify at trial.
According to testimony from Orsorio, at the N.J.R.E. 104 hearing, after having been robbed by defendant and Fuentes, Polango saw Orsorio's patrol car and approached Orsorio, indicating that the two men who had just run past the patrol car had robbed him. Polango indicated one of the men had been armed and told him to "give me your money or suffer the consequences." Orsorio described Polango as "excited, stuttering, and perspiring and had to be calmed down." Polango's eyes were "bugging out of his head."
After the officer radioed headquarters, Fuentes was apprehended and Polango, who was with Orsorio in the back of his patrol car, identified Fuentes as one of the two individuals who had robbed him. About ten minutes later, defendant was also apprehended. As a result, Orsorio brought Polango to where defendant had been apprehended, at which time Polango identified defendant as the individual who had robbed him with a gun.
The court subsequently ruled that the statements made by Polango to the officer in his patrol car would be admissible. However, the court instructed Orsorio:
You are not to testify to any information that you received from Mr. Polango while at police headquarters or at the show-up where he identified the defendant as one of the assailants.
You can testify as to what occurred at police headquarters, but not anything that he said is admissible under the hearsay exception of excited utterance.
Thereafter, Orsorio testified in the presence of the jury in accordance with the trial court's ruling. However, during cross-examination of defendant, the prosecutor questioned defendant at length regarding the statement he had given to the police, as well as to testimony previously elicited at trial. The following then ensued:
Q: Now, the police took you back to where this man was; Is that not correct?
A: They took me to 22 Franklin Street.
Q: Right away?
A: Yes, sir.
Q: Okay. And the man pointed you out, didn't he?
[Defense Counsel]: Objection.
At sidebar, defense counsel emphasized the prosecutor's question related to that part of the victim's statement, which the court had specifically excluded. Accordingly, he requested a mistrial. The prosecutor indicated he had not elicited such testimony during the prosecution's case, but intended to elicit testimony that the victim had been identified at headquarters. The court interrupted the prosecutor, indicating that if he had intended to elicit such testimony, an appropriate Wade*fn2 hearing should have been conducted to enable the court to determine whether any identification had been the result of an impermissibly suggestive procedure. Accordingly, the court did not believe the question was appropriate.
The prosecutor indicated he would withdraw the question. However, defense counsel again requested a mistrial. Counsel maintained the taint caused by the question was significant enough to warrant a mistrial. However, the court denied the request.
The court, thereafter, asked if counsel desired a curative instruction. The prosecutor maintained that an instruction was not necessary because the officer had not answered the question. Since defense counsel's motion for a mistrial was denied, counsel requested the instruction, and the court agreed to give the instruction. Accordingly, the court charged the jury that questions posed by the attorneys did not constitute evidence, and that the jurors were not to speculate as to any answers to any questions posed unless the evidence had been introduced in the case.
The following morning, defense counsel renewed his motion for a mistrial, emphasizing that the prosecutor had intentionally questioned the defendant regarding an area previously deemed inadmissible. Although the question had not been answered, he maintained the adverse inference was inescapable to the jury, and that the resulting prejudice was incapable of being adequately cured by an instruction. The court again denied the motion.
The applicable legal standard is well-settled. A mistrial is a drastic remedy, which should only be granted in order to prevent an obvious failure of justice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). The decision to grant this extraordinary remedy is "peculiarly within the competence of the trial judge, who has the feel for the case." State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Brown, 325 N.J. Super. 447, 452 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). A reviewing court must defer to the trial judge's ability to weigh possible prejudice and determine the effectiveness of any curative instructions. Winter, supra, 96 N.J. at 647. A trial judge's ruling on a motion for a mistrial should not be disturbed, therefore, unless there was an abuse of discretion, which resulted in manifest injustice. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000); State v. DiRienzo, 53 N.J. 360, 383 (1969).
Although the prosecutor's question was a clear violation of the court's evidential rulings, the court declined to grant a mistrial. Instead, despite the fact the objectionable question was not answered, the court with defense counsel's approval, gave an immediate strong curative instruction, telling the jury that questions are not evidence and the jury should not speculate as to what the answer might be.
We are satisfied there was no prejudice to defendant. Defendant's identification was not in dispute. Therefore, any prejudicial effect that might have resulted from the unanswered question did not affect the outcome of the trial. The jury already knew that Polango identified defendant to Orsorio as he chased defendant down the street. Additional information about a second identification at the scene of defendant's arrest was not significantly more damaging to defendant, particularly since Orsorio also identified defendant. Further, defendant confessed to robbery prior to trial, and although he disavowed the confession at trial, he never denied that he encountered the men who were following him.
We are satisfied the curative instruction was adequate to dispel any prejudice that might have arisen. See State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 71 (2000) (curative instruction was adequate to dispel any prejudice caused by reference to inadmissible evidence that the defendant and witness were "locked in the same barracks.").
Additionally, we note that although Polango told Orsorio that defendant reached into his pocket and took his wallet, the jury found defendant not guilty of robbery. Thus, the jury was not adversely influenced by Polango's statements. Moreover, the jury knew from defendant's confession that defendant pointed the toy weapon during the robbery and they heard evidence that the weapon was found under the defendant when he was apprehended.
We are satisfied the prosecutor's reference to the duplicate identification by Polango did not warrant a mistrial.
Defendant contends he was denied his right to a fair trial, as a result of testimony asked by the prosecutor of Orsorio. Defendant claims the elicitation of testimony from Orsorio that he took Polango to the location where defendant had been apprehended, and while there Orsorio identified defendant, was improper since it essentially informed the jury that defendant was identified by Polango at that time as well. Although not objected to by defense counsel when the testimony was elicited, defendant asserts prejudicial impact occurred when this testimony is viewed in conjunction with the prosecutor's impermissible question to defendant discussed above.
As indicated, the jury was instructed by the judge to disregard the prosecutor's question. In the absence of evidence to the contrary, it must be presumed that the jury followed the court's instruction. See State v. Walker, 33 N.J. 580, 589 (1960), cert. denied, 371 U.S. 850, 85 S.Ct. 89, 9 L.Ed. 2d 86 (1962).
At the time the prosecutor's question was posed to Orsorio concerning Orsorio's arrest scene identification, the jury was already aware that Polango had identified defendant to Orsorio.
The additional arrest identification by Orsorio was, therefore, of limited importance. Orsorio testified that he saw defendant and Fuentes running down the street with the robbery victims in hot pursuit and was able to identify the suspects. Indeed, Fuentes was well known to Orsorio as they had known each other since childhood. Defendant was apprehended nearby only twenty minutes later and identified by Orsorio. Orsorio's identification was confirmed by the short timeframe, the close proximity of the arrest, defendant's incriminating behavior in running from the police and hiding in the snow, and the fact that a toy gun was underneath the defendant when he was arrested. Defendant's contention is without merit.
Before defendant testified, the State offered three prior convictions to be used by the State for impeachment purposes if defendant took the stand, under State v. Sands, 76 N.J. 127 (1978), as modified by State v. Brunson, 132 N.J. 377 (1993). The first two convictions were for third-degree narcotics charges and the third, under a separate indictment, was for third-degree receiving stolen property. The defendant was sentenced on both indictments on May 9, 1994, to three years in prison. Defense counsel offered no objection to the use of these convictions for impeachment purposes, other than to request that the convictions be sanitized. Although defense counsel did not argue that the convictions were remote, the trial court considered the issue and found they were not remote but ruled they must be sanitized.
Under N.J.R.E. 609, evidence of a witness's prior conviction of a crime is presumptively admissible to affect credibility unless the adverse party can demonstrate that the conviction is remote or otherwise irrelevant. "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on [the party seeking exclusion]." Sands, supra, 76 N.J. at 144. Within these limits, the discretion to admit or exclude a conviction is left to the trial judge whose determination cannot be reversed absent an abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987); see Sands, supra, 76 N.J. at 144.
Exclusion must be premised on a showing that the prior conviction is remote when coupled with the "nature" of the conviction. Sands, supra, 76 N.J. at 144. "Serious crimes, including those involving a lack of veracity, dishonesty or fraud," should be given more weight in determining whether a "lapse of time" precludes the use of the conviction for credibility purposes. Id. at 144-45.
We are satisfied the trial court properly exercised its discretion in permitting impeachment of the defendant with three convictions entered on May 9, 1994. Although these convictions occurred nine years before trial, they were neither remote nor irrelevant. One of the convictions was for a theft offense, which is a crime of dishonesty and is relevant on the issue of credibility. State v. Pennington, 119 N.J. 547, 587 (1990) (burglary, as a crime of "dishonesty," was properly admitted for impeachment).
We are satisfied also that the nine year timeframe between the prior convictions and the trial of the present charges did not preclude the use of the prior convictions. See State v. Spivey, 179 N.J. 229, 243 (2004) (six-year-old conviction was admissible for impeachment); State v. Lagares, 247 N.J. Super. 392, 396-97 (App. Div. 1991), aff'd in part, rev'd in part, 127 N.J. 20 (1992), (seven-year-old narcotics conviction was admissible for impeachment).
Defendant was convicted of second-degree conspiracy and fourth-degree possession of an imitation firearm. The court determined he qualified for an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) and imposed a seventeen-year term of imprisonment.
Defendant asserts and the State agrees that he is entitled to a remand for re-sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). We agree and accordingly remand defendant to the trial court for re-sentencing.
Pierce established an expanded sentencing range for extended terms, which "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. The imposition of sentence within the expanded range of sentences "remains in the sound judgment of the court -subject to reasonableness and the existence of credible evidence in the record" to support the court's determinations of aggravating and mitigating factors. Ibid. Therefore, as the Court required in Pierce, the trial court should on remand reconsider the applicable aggravating and mitigating factors and can consider the protection of the public as part of its findings. Id. at 170-71.
Because we remand defendant for re-sentencing in accordance with Pierce, we do not address the other sentencing issues raised by defendant on this appeal.
Defendant contends his indictment was defective because the grand jury heard hearsay statements of witnesses. However, a review of the grand jury transcript shows that the primary evidence before the grand jury was defendant's own statement. Even assuming the indictment rested only on hearsay evidence, defendant's claim is still without merit.
Our decisions have expressly held that a grand jury's review is not limited to legally competent evidence and it may return an indictment based primarily, if not wholly, on hearsay or other evidence that would be inadmissible at a trial. See e.g. State v. Holsten, 223 N.J. Super. 578, 585-86 (App. Div. 1988) (hearsay and leading questions permitted); State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd, on other grounds, 110 N.J. 258 (1988) (hearsay permitted); State v. Ferrante, 111 N.J. Super. 299 (App. Div. 1970) (hearsay evidence permitted).
Defendant contends he was not given Miranda warnings when he was taken into custody and placed in a police vehicle. However, defendant was not questioned at this point and, as the defendant concedes in his pro se brief, Miranda does not apply in a "non-interrogatory" setting.
Although defendant did not receive warnings in the police vehicle, he was fully advised of his rights at the police station, prior to his 11:15 a.m. statement. There was no requirement that Miranda warnings be given at an earlier point. There was no violation of defendant's rights.
Defendant makes several allegations of ineffective assistance of counsel. These claims are more appropriately addressed in a post conviction relief (PCR) application because they rely on matters outside the record. State v. Preciose, 129 N.J. 451, 460 (1992).
This is especially true here because defendant's contention is that his attorney was deficient for failing to obtain a handwriting expert to challenge the authenticity of his signature on his purported statement. Defendant states that he advised his trial attorney that the signature on the statement was not his and he wanted his trial attorney to call a handwriting expert. Whether the defendant so advised counsel is a matter that should be explored at PCR. The same is true of defendant's claims that his trial counsel did not conduct adequate investigation, met only once with defendant prior to trial, did not question defendant about drug use on the day preceding the alleged robbery, or question him about possible drug addiction and his mental state.
We affirm defendant's conviction but his sentence is remanded for re-sentencing in accordance with Pierce. Our affirmance of defendant's conviction is without prejudice to his right to raise the claim of ineffective assistance of counsel in a PCR application.