On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 03-01-0422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2007
Before Judges Wefing, Yannotti and Messano.
Defendant Jeffrey Castro was charged as a juvenile with the murder of Julio Torres. After a waiver hearing in the Family Part, defendant was indicted by the Essex County grand jury of murder, in violation of N.J.S.A. 2C:11-3a (Count One); unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (Count Two); and possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count Three). At trial, the lesser included offenses of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, reckless manslaughter, in violation of N.J.S.A. 2C:11-4b(1), and passion-provocation manslaughter, in violation of N.J.S.A. 2C:11-4b(2) were submitted to the jury. Defendant was acquitted of murder and possession of a handgun for an unlawful purpose; the jury found him guilty of aggravated manslaughter and unlawful possession of the handgun. On the aggravated manslaughter count, the judge sentenced defendant to a term of twenty-four years, eighty-five percent of which was to be served without parole; on the firearm count, he was sentenced to a concurrent term of five years imprisonment.
Defendant raises three issues on appeal.
REPEATED, EGREGIOUS MISCONDUCT BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, §§ 1, 10. (PARTIALLY RAISED BELOW)
A. The prosecutor disparaged defense counsel and the defendant in many ways, including suggesting that defendant had tailored his testimony after hearing the witnesses testify against him.
B. The prosecutor used defendant's silence to impugn his self-defense claim.
C. The prosecutor elicited expert testimony that fingerprints could not be taken from shell casings, but [the witness] was not qualified to testify as a fingerprint or ballistics expert.
THE ADMISSION OF EVIDENCE THAT DEFENDANT LAUGHED WHEN VIEWING AUTOPSY PHOTOGRAPHS DENIED DEFENDANT A FAIR TRIAL.
THE SENTENCE WAS EXCESSIVE, AND A REMAND IS REQUIRED PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).
We have carefully considered these issues in light of the trial record and appropriate legal standards. We affirm defendant's conviction, but remand the matter for re-sentencing in accordance with Natale.
Defendant admitted that he shot and killed Torres who was nineteen-years old and known in the neighborhood where both lived as "King Face," a reference to the victim's status as a high-ranking member of the Latin Kings gang. The essential issue at trial was whether defendant acted in self-defense.
Shortly after midnight, on January 26, 2002, defendant, seventeen-years old at the time, accompanied his boyhood friend Alexis Semidey, to the Flamboyan Manor Nightclub in Newark. Both had smoked marijuana earlier in the evening and Semidey testified the bar was crowded with people. He and defendant went into the backroom to shoot pool and have some drinks. Semidey saw Torres, who he knew was the "second crown" or leader of the Latin Kings, in the backroom with other people he knew to be gang members. Soon, Torres and defendant were exchanging "hard looks," and arguing with each other. A bouncer separated the men as they headed toward the front door of the club.
Semidey saw Torres punch defendant in the face and heard him threaten to kill defendant. As Semidey, Torres, other gang members, defendant and a small crowd of onlookers pushed through the front door onto the sidewalk, defendant pulled a gun. Torres began to run away, defendant fired a shot in his direction which struck Torres in his back, and he immediately collapsed in the street. Semidey then saw defendant walk over to Torres and fire several more shots into his body as he said, "That's what you get for playing me out." Semidey testified Torres had no weapon.
Semidey and defendant ran back to Semidey's apartment. Dahlia Morfia, Semidey's girlfriend, testified she was present when the two returned from the nightclub. She confirmed that defendant was carrying a black and chrome gun and said he had "just mercked" someone, which is gang slang for having murdered someone. Defendant left with Semidey's sister. Morfia and Semidey went into hiding until February 1 when they decided to tell their stories to the Newark police.
Luis Cancel, an off-duty Newark police officer and his girlfriend, Doris Torres (no relation to the victim), testified they were just arriving at the entrance to the Flamboyan Manor, when a small, raucous crowd pushed through the front door of the nightclub and onto the sidewalk. Cancel saw the silhouette of a dark colored gun held in the air. Cancel heard two shots followed by several rapid rounds he immediately identified as 9 mm. gunfire. Cancel could not identify who was the shooter. He saw some individuals run up to the victim as he lay on the ground and then saw two of those men jump into a black Maxima that was driving slowly down the street. As the Maxima sped away, Cancel ran to his car and called for backup.
Doris Torres's testimony confirmed much of Cancel's account. She, too, could not identify the shooter, though she confirmed that the victim was shot several times as he lay on the ground. Delores Torres did not see the victim with a gun but acknowledged she could not see his hands.
Investigator John Cosgrove, a crime scene investigator for the Essex County Prosecutor's Office, arrived at the scene, took pictures, and gathered evidence. He testified that he recovered four spent shell casings and one bullet in the immediate vicinity of the victim's body. He also found two spent shell casings in closer proximity to the front door of the Flamboyan Manor. On cross-examination, defense counsel asked Cosgrove whether he had ever "take[n] any fingerprints of (sic) the shell casings." Cosgrove replied he did not. On re-direct examination, without objection, Cosgrove explained that shell casings are never analyzed for fingerprints because: 1) they are small; and 2) any print on the casing would evaporate because of the release of hot gases during the firing of the weapon and ejection of the shell.
Sal Russomanno, a ballistics expert with the Newark Police Department, also testified. He stated that the six shell casings and five spent bullets recovered from the scene and the victim's body were all fired from the same 9 mm. semi-automatic or automatic weapon.
Investigator Richard Gregory, who was at the time with the Essex County Prosecutor's Office Homicide Unit, was the primary investigator assigned to the homicide investigation. On March 21, 2002, when defendant voluntarily surrendered to the police, Gregory took a formal statement from him.
In his statement, defendant claimed Torres had pulled a gun on him as they exited the Flamboyan Manor. Defendant asserted that he then pulled out his gun, Torres ran and he shot Torres first. Defendant saw Torres fall, and then he "ran up to him and continued shooting him to make sure he didn't get up." Defendant claimed that he ran after dropping his gun next to Torre's body. Defendant purchased the 9 mm. gun on the street in his neighborhood about a week before the shooting for $300. When asked why he decided to turn himself in, defendant answered, "Just to get it over with and I was told you guys would . . . start the trial without me present and I would get the maximum penalty."
Dr. Lyla Perez, the Essex County Medical Examiner, testified that Torres sustained a total of six gunshot wounds to his back, forehead, left eye, upper right lip, right cheek, and left forearm. She opined that the shot to his back was the first shot that struck him and it severed his spinal cord, immediately paralyzing Torres from the waist down. The multiple gun shot wounds to his head were the cause of Torres's death and were inflicted at very close range. The gunshot wound to Torres's forearm was essentially a contact wound and was likely defensive in nature. With the conclusion of the medical examiner's testimony, the State rested.
The defense case began with the testimony of Enrique Zayas, who was in the bar on the night of the shooting. Zayas testified that there came a time when a large crowd of people rushed toward the front of the bar. Zayas saw a handgun being waived around in the air by a man wearing a "gray skullie" on his head. Through other witnesses, it was established that defendant was probably bare-headed that night, and definitely was not wearing a "gray skullie." Zayas did not leave the bar and did not know what occurred on the street outside. After defendant testified, Pedro Flores was called as a defense witness. He testified that Torres was a member of the Latin Kings gang and had a reputation for violence in the community.*fn1
Defendant's testimony largely mirrored the description of the night's events contained in his formal statement to the police with some additional details. Defendant knew Torres as "King Face," and knew he was a leader of the Latin Kings. Defendant claimed Torres always "carrie[d] a gun," was in "charge of a lot of drug dealing," and had threatened defendant's friends in the past. These details were not contained in defendant's statement to the police.
Defendant now also claimed a second friend of Torres had a gun, though he acknowledged he never told that to the police. As he exited the Flamboyan Manor, defendant ran and Torres and the other man pursued him. He heard Torres say "Bust him," and he turned to see Torres pointing a gun in his direction. Defendant testified he shot first and Torres went down. Defendant claimed that while lying on the ground, Torres pointed his weapon toward defendant and threatened to kill him. This also was a fact that defendant did not tell the police when he gave his statement. Defendant shot Torres several more times before fleeing with Semidey.
In Points I(a) and (b), defendant contends that the alleged misconduct of the assistant prosecutor throughout the trial was sufficiently egregious as to warrant a new trial.
"Prosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). Prosecutorial misconduct, however, provides no basis for reversal of a defendant's conviction unless it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). During summation, a prosecutor is duty bound to confine his or her comments to the facts revealed during trial and the reasonable inferences to be drawn from that evidence, State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993), though not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div.), certif. denied, 107 N.J. 647 (1987).
In evaluating whether prosecutorial misconduct warrants reversal, we also consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991), (quoting Ramseur, supra, 106 N.J. at 322-23), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). With these general principles in mind, we consider defendant's allegations of prosecutorial misconduct in this case.
Defendant contends that the prosecutor's repeated references during cross-examination and summation, to his alleged failure to provide exculpatory details of the events in his statement to the police were improper and violated his right against self-incrimination. State v. Muhammad, 182 N.J. 551, 565-66 (2005); State v. Lyle, 73 N.J. 403, 410-11 (1977). We consider this specific claim of prosecutorial misconduct first.
Most recently, our Supreme Court decided a trio of cases in which it re-examined its holding in Muhammad. State v. Brown, 190 N.J. 144 (2007); State v. Elkwisni, 190 N.J. 169 (2007); State v. Tucker, 190 N.J. 183 (2007). Tucker presents a fact pattern most similar to the one at hand.
In Tucker, defendant provided a series of statements to the police both before and after he was administered his Miranda*fn2 warnings and charged with his mother's murder. Tucker, supra, 190 N.J. at 185-86. During all the interviews, the defendant never admitted that just before her death he accompanied his mother into her bank while she withdrew a large sum of money. Id. at 187. Defendant did not testify at trial. Ibid. In his opening statement, during the examination of various police witnesses, and during summation, the prosecutor stressed that defendant's story had repeatedly changed from statement to statement and that he never told the police he accompanied his mother into the bank, a fact revealed by surveillance tapes from the bank that showed defendant standing behind his mother. Ibid.
In reversing defendant's felony-murder conviction, a panel of our colleagues concluded such prosecutorial comments violated Muhammad's holding that the State may not comment on defendant's silence "while in custody, under interrogation, or 'at or near' the time of his arrest." Muhammad, supra, 182 N.J. at 558. Following the reasoning of Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed. 2d 222 (1980), however, the Supreme Court concluded
A defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial. When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given. [Tucker, supra, 190 N.J. at 189.]
After reversing our judgment, the Court remanded the matter to us to resolve other issues presented by the appeal. Id. at 191.
In light of Tucker, the contention that the prosecutor committed misconduct by highlighting inconsistencies between defendant's trial testimony and his prior statement to the police is simply unavailing.
Defendant contends that while being cross-examined, the assistant prosecutor implied that he was "tailoring" his testimony -- fitting it to that of the witnesses who testified before. He argues this violates the Supreme Court's holding in State v. ...